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Criminal Law

Citizen's Arrest

Arresting Citizen Subject to Administrative Law

It was said in Kruger, ‘When a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.’[1] The court in Howarth[2] applied this specifically to the power of citizen’s arrest as imbued upon all members of the public. The thrust of this was to show that the use of citizen’s arrest must be restrained by reasonableness. Putting it in the broadest of terms, the decision to arrest must be fair, lawful and sensible, as with all decision making by, or on behalf of, government.


What the reader should attend to in this as a primary consideration, though, is that whenever a person arrests someone they become vessels of government power, and hence subject to the mandates and restrictions of administrative law. Administrative law is a whole field of legal practice in and of itself and exists to keep government decision makers of all kinds, from politicians to contracting parking officers under control. What this means for a person conducting an arrest is the same as for any government official in their line of work. Thankfully the question of whether a crime has been committed and who the culprit is, is normally very simple if you happen to be at the scene, at the time. Therefore, the following vast over-simplification of the relevant requirements of administrative law shall suffice for the intents and purposes of this basic guide.

  1. Reasonableness – As stated above, logical, fair, balanced and thoughtful decisions are required. Some matters, like arresting a suspect at a crime scene, can be quite straightforward such that it may be difficult to breach this requirement. Nevertheless, the potential for emotional bias, stereotyping and spurious value-judgments should be guarded against as subjective drivers of action.

  2. Legislative scope and purpose – You can only make an arrest for reasons that align with the intentions underlying the legislation. In this case, the triggers for action are to bring the offender to justice, prevent a crime for being committed, and suchlike. The arrest is not legally effective if there is any other prevailing purpose.

  3. Considering irrelevant matters – If an arrest is committed in a situation where factors extraneous to the crime are a significant determinant of the decision to arrest, then it is an improper arrest. This includes any personal dislike of the suspect, the known propensities or personal history of the suspect, and of course, the suspect’s race, religion, economic status, political convictions and so forth.

  4. Failing to consider relevant matters – Whether forgetting something or ignoring a known fact, any available fact that would contribute to the decision whether to make an arrest must be considered. As an illustration, consider a person in a department store who is noticed leaving a fitting room wearing clothes that match some which are for sale. A search of CCTV footage shows the suspect entering the store wearing the same clothing, so the arrest was an improperly made decision and the suspect should be released immediately. Also known as the Right to be Heard (as in a court proceeding), if a suspect or arrested offender has evidence of substance and relevance to give, then while you do not have to believe them, any credible assertions must be given due consideration.


Relevant Implication

The foregoing, for all intents and purposes, reveals nothing that would surprise anyone, and little that is going to affect how anyone does their job. The only issue that may not be apparent to some is that when an arrest is made and evidence becomes available subsequently that the prisoner is innocent, then in pursuit of taking all relevant facts into account and in pursuit of reasonableness, they must be released immediately. The arrest is invalid unless made in accordance with the above principles. This does not mean that whatever is alleged by a suspect has to be taken seriously – the art of lying to get out of trouble is well known – but actual proof must be accepted.


Arrest Must be a Necessity

Administrative law enabled passenger transport company, Uber, in the matter of Howarth,[3] to invalidate arrests of Uber drivers because they were in fact unnecessary in the given context. In order to bring Uber drivers to justice as uncertified taxi drivers, they could have been identified by registration plates, Uber app records and photographs of the drivers, and then charged on summons. There was no need to place them directly into police custody. These governmental decisions to make arrests were therefore an invalid exercise of power.

[1] Kruger v The Commonwealth of Australia (1997) 190 CLR 1, 36.

[2] Uber BV & Anor v Howarth [2017] NSWSC 54, [143].

[3] Uber BV & Anor v Howarth [2017] NSWSC 54.

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