Criminal Law
Citizen’s Arrest
Each State and Territory in Australia provides statutory permission for ordinary members of the public (not limited to actual citizens) to make an arrest without a warrant, if it is patently obvious that a person has committed or is committing an unlawful act. While each jurisdiction provides notable variation, there are clear conceptual overlaps enabling a lot of discussion of this power concerning all jurisdictions at once. The definition of arrest is unitary across the jurisdictions, as is the concept that the purpose of the arrest is to hand the suspect or offender over to police.
The power of citizen's arrest tends to be understood by the security guarding industry in a fairly basic manner, but more is to be said. This section sheds further light on it, identifying both restrictions and liberties not commonly understood.
False imprisonment is, as the name suggests, the deprivation of another person’s liberty against their will. A person who makes a citizen’s arrest must consider whether they are acting outside their jurisdictional powers and making an arrest on improper grounds. The solidity of the factual basis for believing a crime has been or was being committed is of central concern. If you hold someone under arrest improperly, then this is the crime of false arrest. The range of offences for which an arrest may be made is somewhat restrictive in Tasmania, while it is very broad in other jurisdictions. There is also variance as to whether reasonable suspicion can play a role, or the offender’s guilt must be incontrovertible as in the case of an eyewitness making the arrest.
The relevant statutory provisions are as follows:
Australian Capital Territory – Crimes Act 1900, section 218;
New South Wales – Law Enforcement (Powers and Responsibilities) Act 2002, section 100;
Northern Territory – Criminal Code Act 1983, section 441;
Queensland – Criminal Code Act 1899, section 546;
South Australia – Criminal Law Consolidation Act 1935, section 271 (See also Summary Offences Act 1953, section 77);
Tasmania – Criminal Code Act 1924, sections 26, 27 and 31 (see also Appendices A and B);
Victoria – Crimes Act 1958, sections 458, 462 and 462A.
Western Australia – Criminal Investigation Act 2006, section 25.
Is Committing or Has Committed - Arrest for Attempted Crimes?
The above provisions allow for a private person to effect an arrest of a criminal offender who, by obvious evidence, either has committed, or is in the process of committing, an offence. This means that there is no need for the common practice of retail security operations to wait for a shoplifter to depart from the store with the goods they are stealing before affecting an arrest. The notion commonly put about in the security industry, that an arrest within the store is a false arrest, ignores important wording of the statutes. If the evidence of the offender’s behaviour after acquiring goods surreptitiously – in particular their avoidance of the checkout queue – shows clearly an intention to steal, then they can be arrested while still within the premises. It remains common sense, however, to wait until the theft is fully committed due to the potential for an absent-minded person to take goods toward the exit negligently. It also stands that if the person is prevented from exiting the store, then the only crime they can be charged with is attempted theft. The main point of this discussion is that there is no false arrest merely because the arrest happens on the premises without goods having yet been removed.
Reasonable Use of Force and Victorian Statutes
In Victoria, the wording of Section 458 of the Crimes Act is obtuse, and appears to allow only for an arrest to be effected upon a crime still in commission. Section 462, however, defines the phrase “finds committing” so as to include instances when it is reasonable to assume the guilt of the person being arrested. Another note on the Victorian legislation is that the use of force in making an arrest or putting an end to a crime, is limited in Section 462A to that which is reasonable in the situation for purposes of preventing or stopping a crime or making an arrest. This is in essence a re-statement of the common law principle of reasonable use of force, and as the concept of reasonableness is ubiquitous throughout the law, it is a point applicable to all jurisdictions.
Citizen’s Arrest and Attempted Crimes
Whether the power of citizen’s arrest extends to all forms of attempted crime or crimes in development, however, needs further consideration. It is clear that an arrest can be undertaken for a crime in commission, and that there is no effective statutory distinction between permissions as to an ongoing crime and a criminal act in the making. It depends on the nature of the crime whether any attempt at committing a crime is the same as being in the process of committing it. An affray is an example of a crime that is fully committed as soon as the act commences, even if it will go on for some time. A citizen seeking to arrest the guilty party(ies) does not have to wait until it is over. Shoplifting, on the other hand, requires a series of steps before the crime is committed in the form of the offender exiting the building with goods they intend not to pay for. The wording of the statutes does not exclude arresting an offender when taking steps in attempt, such as tampering with door locks to make possible an entry to a building after hours.
If a person arrives at a locked premises at night with tools that may be used in a burglary, and looks intently at the premises, arousing suspicion of an intent to commit a burglary, unless they enter the property, they have not yet commenced the commission of the crime. Anywhere except Tasmania where an express allowance exists, a citizen’s arrest would be a false arrest in these circumstances unless the person was already doing something more particular to the crime alleged, or evidence came to light showing a plan to commit a burglary. If the said offender approached a door or window and began to prize at it or pick a lock to break in, then a citizen’s arrest for attempted burglary would be lawful. An assailant approaching a person with a knife can be arrested before they manage to hurt the proposed victim. So too a shoplifter can be arrested en route to exit a retail store they intend to steal from, before having finalised the unlawful taking of goods by exiting into a public space. The danger that exists for security providers and retailers in arresting a person while still in the store is that a person who simply forgets they are carrying goods in a handbag or pocket, or who is relocating to another part of the store, can sue for the trespass of false arrest. If they have left the premises, however, they cannot argue that they did not give every necessary impression of their criminal intentions.
Arresting Citizen Subject to Administrative Law
It was said in Kruger v The Commonwealth, ‘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.’ The court in Uber BV v Howarth 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 in accordance with the principles of administrative law. 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’s attention should be drawn to is that whenever a person arrests a suspected offender they become vessels of government power, and hence subject to the mandates and restrictions of administrative law. Administrative law is a whole field of law in and of itself and exists to keep government decision makers of all kinds, from politicians to contracting parking officers under control, to minimise dilatory, unfair and corrupt conduct. 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 on the narrow field of arrest.
-
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 much more difficult to breach this requirement than adhere to it. Nevertheless, the potential for emotional bias, stereotyping and spurious value-judgments should be guarded against as subjective drivers of action. For instance, do not determine the likelihood of one suspect over another present at the one crime scene, based on their race when you have a personal or ethnic history experiencing wrong at the hands of such a race.
-
Legislative scope and purpose – You can only make an arrest for reasons that align with the intentions underlying the legislation. (The “intention of Parliament” is how lawyers put it). In this case, the triggers for action are to bring the offender to justice, prevent a crime from being committed or to put a stop to a crime, and suchlike. The arrest is not legally effective if there is any other prevailing purpose such as personal revenge, or imposing extra-judicial punishment.
-
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. This is different from point 1, above, in that this concerns the application of facts, not subjective drives and motives that impair reasoning ability.
-
Failing to consider relevant matters – All available facts that would contribute to the decision whether to make or maintain an arrest must be considered. Whether forgetting something or ignoring a known fact, by leaving anything information out that makes a difference you are engaging in false arrest. 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. Yet a search of CCTV footage shows the suspect entering the store wearing the same clothing. In such a case the suspect under arrest should be released immediately. Also known as the right to be heard (as in a court proceeding) or procedural fairness, if a suspect or arrested offender has evidence of substance and relevance to give, any credible assertions must be given due consideration. You are not compelled to believe them, but if there is a good reason to, and they may be innocent, you do not have authority to arrest of maintain the arrest.
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, 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.
Negligence Law and Arrest – Duty of Care to the Offender
It is in the very nature of an arrest that the arrested suspect is disempowered and not free to go as they choose. This creates a relationship of dependency in which the suspect needs to be cared for and/or protected in certain ways. While in an enforcer’s custody, the suspect’s basic personal needs should be in focus. If the suspect has any real need, the absence of which would be harmful any way, the person holding them in custody has a duty to ensure that harm does not arise through needs remaining unmet or inadequately met for too long. Needs may take the form of food, water, shelter, clothing, medical treatment, emotional support and reassurance, the presence of a support person of any kind, a telephone to call someone, or any other thing necessary to avoid loss or damage. As to specifically what the suspect needs, your best evidence is what they say and so, their complaints must be heeded.
The duty of care component of the law of negligence provides that we all must take whatever steps we can to avoid loss or harm arising upon others who should realistically be within our contemplation. There are other aspects to this area of law described in the chapter on negligence that will make pertinent reading on this issue. Significantly the standard of care to be expected is dependent on the circumstances of the arrest. A security guard holding a violent patron under arrest at a public event is not expected to exercise the same standard of care that a nurse is over a hospital patient, nor a hotel staff member in a five-star hotel. Nevertheless, ignoring attestations of encroaching hypothermia, doing nothing to control blood loss, or behaving and talking so as to exacerbate psychological distress or induce a heart attack, or failure to call for an ambulance as soon as medical needs are apparent, are actionable.
Criminal Code Act 1924 (Tas), s 27(7).
Kruger v The Commonwealth of Australia (1997) 190 CLR 1, 36.
Uber BV & Anor v Howarth [2017] NSWSC 54, [143].
Uber BV & Anor v Howarth [2017] NSWSC 54.