On Citizen’s Arrest
The right and necessity of citizens to detain suspected or actual criminals has long been recognized under both civil and common law.
Anyone is empowered to make a citizen’s arrest under the CRIMES ACT 1958 – SECT 458
Any man or woman may be arrested without warrant by anyone who witnesses someone commit an offence or crime, even if the person committing the offence is a member of the police:
S. 458(1)(a)(i) amended by No. 68/2009 s. 97(Sch. item 40.30).
- to ensure the attendance of the offender before a court of competent jurisdiction;
- to preserve public order;
- to prevent the continuation or repetition of the offence or the commission of a further offence; or
- for the safety or welfare of members of the public or of the offender;
S. 458(1)(b) amended by No. 37/2014 s. 10(Sch. item 36.13).
(b) when instructed to make a citizen’s arrest by any police officer having power under this Act to apprehend that person; or
S. 458(1)(c) amended by No. 117/1986 s. 6(Sch. 1 item 1(8)(a)).
(c) They believe on reasonable grounds that someone is escaping from legal custody, or aiding or abetting another person to escape from legal custody, or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case.
(2) For the purposes of paragraph (a) in subsection (1) “offence” means offence at common law or a contravention of or failure to comply with a provision of an Act of Parliament, and unless otherwise by Act of Parliament expressly provided does not include a contravention of or failure to comply with a rule regulation by-law or other law made under an Act of Parliament.
S. 458(3) amended by Nos 9008 s. 2(1)(Sch. item 2(k)), 68/2009 s. 97(Sch. item 40.31).
(3) A person who has been apprehended without warrant pursuant to the provisions of paragraph (a) in subsection (1) in respect of any offence punishable on summary conviction (not being an indictable offence that may be heard and determined summarily) and taken into custody shall be held in the custody of the person apprehending him only so long as any reason referred to in the said paragraph for his/her apprehension continues and where, before that person is charged with an offence, it appears to the person arresting that person that the reason no longer continues the person arresting that other person shall, without any further or other authority than this subsection, release that person from custody without bail or cause him/her to be so released and whether or not a summons has been issued against him/her or a notice to appear has been served on him/her with respect to the offence alleged.
S. 458(4) inserted by No. 68/2009 s. 97(Sch. item 40.32).
(4) In subsection (3), “notice to appear” has the same meaning as in the Criminal Procedure Act 2009.
S. 459 (Heading) inserted by No. 43/2011 s. 17(1), amended by No. 37/2014 s. 10(Sch. item 36.14).
S. 459 substituted by No. 8247 s. 2, amended by No. 43/2011 s. 17(2)(3) (ILA s. 39B(1)).
Under the same common law custom of pro toto posse suo (see above) that empowers any group of adults to unite and stop those causing harm, the right of Citizens’ Arrest is not restricted or negated by a higher authority because of the recognition that any man or woman has the competence and obligation to see and directly halt wrongdoing in their community.
General guidelines about powers of arrest
- You may place a person under citizen’s arrest if you believe on reasonable grounds they have committed an offence or are in the course of committing such an offence.
- Reasonable grounds means you have direct evidence that ‘constitutes belief’ that the person has committed an offence. An obvious example of ‘reasonable grounds’ would be if you were to actually see a customer take an item from a store shelf, put it into their pocket and then walk out of the store with that item, thus indicating a clear intention to not pay for it, and therefore steal it.
- Suspicion means you have indirect evidence the customer has committed an offence. Examples of suspicion include: The theft protection buzzer sounds as someone exits the store; a person has spent an inordinate amount of time browsing and is consciously avoiding assistance.
- To affect a citizen’s arrest you must use clear words and state the reason for your action. Note: To say “I am detaining you” is preferred to “I am arresting you.” This is not a legislative requirement, simply a more accepted term, especially if the matter is later considered in the courts. You are also required to tell the person ‘detained’ the reason or offence that you are detaining them for.
- In the case of theft, it will be easier to prove that their intention was to commit an offence if you wait until they leave the premises. For offences like assault or criminal damage you do not have to wait until the person has left the business premises before detaining them.
- The person you arrest is under no obligation to answer any questions you may ask, but any questions they do answer should be taken down in writing and may be used in court.
- The person arrested is under no obligation to give their name and address to you.
The procedure for performing a Citizens’ Arrest is as follows:
- One must first either witness a crime, or recognize a suspected criminal or known offender, or even have a reasonable suspicion that such persons pose a danger to others. Such a suspicion must be based on probable cause and not simply a “feeling” or prejudice about someone.
- One must then inform the suspect or offender that he or she is being placed under Citizens’ Arrest under the Right of Necessity which obligates the arrester to detain the suspect or offender. The arresting party must state who they are and why they are exercising the power of arrest by stating the cause of action.
- The offender or suspect must then be detained and held for trial in a common law court, if they turn out to have committed a crime or pose a danger to others. The amount of force used in the arrest must be a reasonable response to the suspect’s behavior.
Using force when detaining someone
The gudelines in all states govering the use of force in making an arrest is generally the same, but you should check to make sure that they are similar to these:
A person shall not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
As a general rule, any force used must be reasonable and proportionate. The circumstances when some level of force may be justified include:
- in self-defence
- to prevent the escape of the offender.
- The best approach to detaining a suspect is to use subtle methods of restraint such as standing around in numbers. Be very careful if you have requested a suspect to remain (of their own free will) on the premises. Indicating to a suspect that they would not be allowed to leave even if they wanted to, means that you have affected an arrest. Closing them in a room would also mean that you have affected an arrest.
Tips to improve your personal safety when detaining a person
- Some simple procedures to increase your personal safety, should you need to detain someone:
- citizen’s arrests should only be made if you have directly seen a crime being committed
- be sure you know what crime you have witnessed
- in the case of theft from a store, be sure that the suspect has no intention of paying for the item/s
- be sure the suspect possesses the item/s that have not been paid for and know where the item/s are concealed
- be sure the suspect has not replaced or disposed of the item/s
- if you are male and, if possible, do not remain alone in any secluded area or office with a female suspect and visa versa call someone to assist and witness as quickly as you can
- do not search any suspect
- do not solicit information from any witnesses about the offence – your only duty is to citizens’ arrest them
- inform the person that you are detaining them for the crime you have witnessed
- contact a common law Sheriff or Peace Officer or local police immediately and always make sure you know the number to call in your state
Points to remember for company security
- if in doubt, do nothing
- it is the duty of every member of society to ensure we uphold the law
- prepare house policies and manuals
- train your staff
- invest in some deterring security systems
- constantly remain calm and alert
Corporate Emergency contacts
|Emergency (all states)||You or someone else is in immediate danger, the offender is still in the vicinity, or there has been a serious accident.||Ph: Triple Zero (000) and ask for police. Remain on the phone until police arrive.|
|Crime Stoppers (all states)||Report illegal activity, or provide information on unsolved crimes anywhere in Australia. You may remain anonymous.||Ph: 1800 333 000 (toll free)|
|Police attendance (All states except Victoria and Queensland)||You require police assistance, but there is no immediate danger.|
Report suspicious activity, theft, car accident with no serious injury.
|Ph: 131 444|
|Police attendance at Airports||You require police assistance at International Airports at both Domestic and International terminals.||Ph: 131 AFP (131 237)|
Citizens can normally hand over those they have detained to an authorized Common Law peace officer or a Sheriff of the court. The arresting parties must be willing to appear in court and give sworn testimony concerning their actions.
The crucial importance of the power of Citizens’ Arrest is that it trains and empowers citizens to take responsibility for policing their communities, and for the law itself. It moves democracy from theory to action.