If TV has taught us anything, it’s that making a citizen’s arrest is a sure-fire way to be heralded as a hero. But outside of the small screen – are you actually allowed to arrest someone if you are not a police officer?
First things first – what is a citizen’s arrest?
Citizen’s arrest refers to the power of ordinary citizens to make an arrest or detain someone.
When can you make a citizen’s arrest?
The legislation in Australia differs slightly from state to state, but generally speaking, citizen’s arrest may be enacted in circumstances where the person making the arrest reasonably believes that an offence is being committed or has been committed.
Does this mean I can arrest anyone if I have this ‘reasonable belief’?
No. Take Anti-Uber activist Russell Howarth as an example. Before Uber was permitted by the transport legislation, Mr Howarth conducted multiple citizen’s arrests on Uber drivers. Mr Howarth would fastidiously set about booking an Uber ride, riding in the Uber to his destination, and when the transaction was complete, would perform a citizen’s arrest of the driver for breaching the state’s Passenger Transport Act.
The NSW Supreme Court did not share Mr Howarth’s view that it was necessary to exercise the power of arrest in those circumstances, stating that a contravention of passenger transport regulations was not a serious offence that would “readily attract the citizen’s power of arrest”.
Uber successfully obtained an injunction to restrain Mr Howarth from conducting any further citizen’s arrests on Uber drivers, as well as the $400,000 costs order. Ouch.
How should the arrest be performed?
Citizen’s arrest is not an excuse for a free-for-all scuffle with the detainee. The person enacting the citizen’s arrest must not use excessive force during the arrest. The only force you are permitted by law to use is the force that is reasonably necessary to make the arrest or to prevent the escape of the person after the arrest. The person must then arrange for the person to be delivered into the custody of a police officer.
Not all citizen’s arrests are performed with quite the same level of meticulous planning as Mr Horwath’s regime with Uber. In fact, a lot of them are heat-of-the-moment, act-first-think-later kind of affairs. However, you would do well to think first then act to avoid getting yourself caught up in any strife. The first and perhaps most obvious risk is your own personal safety. Perhaps less obvious is the risk of being sued by the detainee for false imprisonment or trespass to the person, or even the risk of being charged with assault yourself.
If you find yourself in a spot of bother regarding an arrest, conduct Chamberlains for some specialist advice today. We’re with you.