MAKING A CITIZEN’S ARREST – IS IT EVER A GOOD IDEA?
By Yavin Kumar @ Sydney Criminal Defence Lawyers
It is quite likely that many members of the community have been in a situation in which they have witnessed someone break the law by committing a crime. In certain situations, it may feel best to perform what is known as a citizen’s arrest, but are you allowed to take matters into your own hands in this way? Is it really a wise idea to attempt a citizen’s arrest, or is the power to arrest an individual something that is better left with law enforcement officers?
The law surrounding the area of citizen’s arrests in Australia raises some significant and interesting questions of law with respect to the deprivation of liberty for alleged offenders, and the Good Samaritan rights of all members of the community.
All states in Australia have some legal grounding which warrants the action of making a citizen’s arrest. In New South Wales, under section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, a person who is not a police officer can arrest another person without a warrant if:
- The person is in the act of committing an offence; or
- The person has just committed an offence; or
- The person has committed a serious indictable offence for which they have not been tried.
Once a person has made a citizen’s arrest, they must, as soon as reasonably practicable, take the person and any property found on that person to an ‘authorised officer’, such as an officer of the Police Force.
There are many limitations and possible liabilities that exist with respect to making a citizen’s arrest. Therefore, if a person is considering making a citizen’s arrest, it is absolutely essential that the arrest can be made without posing a danger to your own safety or the safety of others, and that there are legitimate grounds behind making the arrest in the first place. Severe legal consequences can arise for failing to take such precautions.
What are the limitations to making a citizen’s arrest?
As previously stated, in order for a person to make a valid citizen’s arrest, they need to have actually witnessed another person committing a crime – mere suspicion that a person has done something against the law is not enough to warrant a valid citizen’s arrest. Officers of the Police Force have special powers which allow them to arrest people if they have a ‘reasonable suspicion’ that an individual has committed an offence, but this power does not extend to the general rights of members of the public.
If an arrest is made without any legitimate grounds, the person making the arrest can be found to have committed the tort of false imprisonment, as they have deprived the liberty of another person. They could alternatively be charged with assault for trying to do the right thing in stopped the alleged offender. Further to this, a person making a citizen’s arrest can also be charged with assault on the basis that they used excessive force – another area of law which is very vaguely defined.
In May 2016, a 47 year old man was allegedly caught stealing from an industrial equipment store on the New South Wales Central Coast, when a shop worker chased the suspected thief and tried to stop him from leaving. The alleged offender suffered a heart attack outside of the store, and died a short time later.
This incident is one of many examples of situations where the act of making a citizen’s arrest has done more harm than good to the community. Again, it must be emphasised that although a person may only be stepping in to do what they think is right as a Good Samaritan, the act of making a citizen’s arrest places another person’s liberty at risk, and in certain circumstances, could have adverse impacts on their own safety, the safety of the alleged offender, and that of the greater community. In some cases where weapons are involved, a greater overall risk may be present.
You’ve said all this, but should I still make a citizen’s arrest?
If you are thinking about making a citizen’s arrest during or after witnessing the commission of a crime, always be sure to consider all associated risks to safety in doing so, and the possible adverse consequences the act of making an arrest can have on yourself and others.
In instances where an offender is armed with a dangerous weapon (such as a knife or gun), or is under the influence of alcohol or drugs, it is better to avoid any direct confrontation with the offender, and instead call triple zero and contact the police as soon as possible. Trying to arrest someone in this situation could place your life or the life of someone else in danger. Police are trained and armed to handle difficult matters like these, and can take necessary action to apprehend the alleged offender without getting themselves or others hurt.
If you do make the decision to perform a citizen’s arrest, be sure to inform the alleged offender as to what you are doing, use as little force as reasonably possible, and take them to a police station as soon as practicable, or hold the offender until police arrive at your location.
Even though all people have a fundamental right through the law to perform citizen’s arrests, always err on the side of caution and use common sense to properly assess the situation if you have witnessed the possible commission of a crime. The potential consequences are hardly worth the risks.