How to make a citizen’s arrest

You are witness to a carjacking or you see someone snatch a women’s purse and run away. What do you? Do you call the police, do you turn a blind eye or do you try and arrest the offender yourself. If you are witness to an assault or other violent crime you may be worried about the risk of getting involved and remain an innocent bystander.

Although it’s always better to leave law and protection to the professionals, it is not always possible to do so. There are times when ordinary citizens feel the need to intervene when they witness a crime such as in the case of protecting a child from being abducted or a victim of domestic violence.

Under most circumstances it is illegal to detain another person against his or her will. However, there is an exception and that is when it is done as part of a citizen’s arrest.

When and under what circumstances can you make a citizen’s arrest?

A citizen’s arrest is when someone who is not a “duly sworn police officer” detains another person. Under Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, a person can make citizen’s arrest if that a person has just committed or is in the act of committing an indictable offence. An indictable offence is one that can be tried in a crown court in front of a jury. Types of indictable offences include: robbery or stealing from the person, destroying or damaging property and assault occasioning actual bodily harm.

However, there must be a basis for the arrest. For example, if you hear someone yelling at another person who is running away and see that the person running off is clutching a handbag in his or her hands then you may have a basis to believe that the person running away has stolen the person’s handbag.

In most cases these powers are used by security guards or other personnel who are required to detain people as part of their jobs.

Necessity for a Citizen’s Arrest

A citizen’s arrest can only be made if it is deemed necessary to do so under the circumstances. For example, if it is not possible for police to make the arrest themselves or if the person making the citizen’s arrest reasonably believes that by arresting the person they will prevent the person from causing injury to him or herself, or others; or they are protecting the person from physical injury.

The person making the citizen’s arrest must tell the person why he or she is being detained and what they are being detained for. The person being detained must also be taken to an authorised officer as soon as practically possible.

According to the Australian Federal Police, you should consider the following before making a citizen’s arrest:

• Under no circumstances should you risk your personal safety or the safety of others to make a citizen’s arrest. This is especially important if the offender is violent, armed or under the influence of drugs or alcohol.
• Do you know who the person committing the offence is or where they live? If so, it may be easier to direct the police to them then take the law into your own hands.

Limitations to making a citizen’s arrest

Do the benefits of making a citizen’s arrest outweigh the risks? In 2016, a 47-year-old man died of a heart attack after a shop worker tried to stop him from leaving an industrial equipment store in NSW after he was allegedly caught stealing from the store.

If you are found to make a citizen’s arrest without just cause, or don’t bring the person you are detaining before a police officer as soon as possible, you could face assault or false imprisonment charges. In the case described above the shop worker could have faced manslaughter charges.

When an individual makes a citizen’s arrest they need to be certain of the offence. If the defendant does not get charged or is later acquitted of the offence the citizen’s arrest will become invalidated and become unlawful leaving the individual open to civil and/or criminal charges.

Citizen’s Arrest and Use of Force

The law also says you must only use force that is reasonably necessary when detaining the alleged offender. This means the force must be proportionate to the offence and not go beyond what is needed to prevent the person’s escape.

Use of force may be justified in cases of self-defense or to prevent the offender from escaping.

If you do not have lawful justification for physically restraining someone it can be considered assault. Taking away another person’s liberty is considered by the courts to be one of the most significant breaches of a person’s civil liberty, according to Christopher Corns, honorary associate professor of law at La Trobe University.

If it is deemed that you used excessive force you could be left open to assault charges or worse facing a charge of manslaughter such as in the case of a man who was killed by asphyxiation during a citizen’s arrest in the Sunshine Coast in 2012.

If you see a crime being committed and you feel the urge to take the law into your own hands, proceed with caution. The risk just might not be worth the bravery.