Citizen's arrest

A citizen's arrest is an arrest made by a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval Britain and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.

Despite the practice's name, in most countries, the arresting person is usually designated as a person with arrest powers, who need not be a citizen of the jurisdiction or country in which he or she is acting. For example, in England/Wales, the power comes from Section 24a Police and Criminal Evidence Act 1984, called "any person arrest". This legislation states "any person" has these powers, and does not state that they need to be a citizen of England/Wales.

Legal and political aspect

A person who makes a citizen's arrest could risk exposing him or herself to possible lawsuits or criminal charges (such as charges of impersonating police, false imprisonment, kidnapping, or wrongful arrest) if the wrong person is apprehended or a suspect's civil rights are violated. This is especially so when police forces are attempting to determine who an aggressor is.

The level of responsibility that a person performing a citizen's arrest may bear depends on the jurisdiction. For instance, in France and Germany, a person stopping a criminal from committing a crime, including crimes against belongings, is not criminally responsible as long as the means employed are in proportion to the threat (note, however, that at least in Germany, this results from a different legal norm, "aid to others in immediate danger," which is concerned with prevention, not prosecution, of crimes).

Laws by country

Australia

The power to arrest is granted by both federal and state legislation, however the exact power granted differs depending on jurisdiction. The power to arrest for a Federal offence is granted by s.3Z of the Crimes Act 1914. Under the Act, a person who is not a police constable may, without warrant, arrest another person if they believe on reasonable grounds that:

• the other person is committing or has just committed an indictable offence; and
• proceedings by summons against the other person would not: ensure the appearance of the person before a court in respect of the offence; prevent a repetition or continuation of the offence or the commission of another offence; prevent the concealment, loss or destruction of evidence relating to the offence; prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence; prevent the fabrication of evidence in respect of the offence; or would not preserve the safety or welfare of the person.

A person who arrests another person must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.

Victoria

In the Australian state of Victoria, the power to arrest is granted in section 458 of the Crimes Act 1958 (Vic). It states that a person may, without a warrant, arrest a person that they find committing an offence for one or more of the following reasons:

• to ensure the appearance of the offender in court, and/or
• to preserve public order, and/or
• to prevent the continuation or repetition of the offence, or the commission of a further offence, and/or
• for the safety or welfare of the public or the offender

A person may also arrest another person if they are instructed to do so by a member of the police force, or if they believe on reasonable grounds that they are escaping legal custody.

Section 461 states that if an arrest is made under 458 of the Crimes Act, and is later proven to be false, then the arrest itself won't be considered unlawful if it was done so on reasonable grounds. Section 462A allows any person the right to use force "not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence".

New South Wales

In the Australian state of New South Wales, the power to arrest is granted by s.100 of the Law Enforcement (Powers and Responsibilities) Act 2002. Under the Act, a person may, without a warrant, arrest another person if:

• the person is in the act of committing an offence under any Act or statutory instrument, or
• the person has just committed any such offence, or
• the person has committed a serious indictable offence for which the person has not been tried.

Section 231 of the Act allows for the use of such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. A person who arrests another person under s.100 must, as soon as is reasonably practicable, take the person, and any property found on the person, before a magistrate to be dealt with according to law. The magistrate will also decide whether or not the force applied in making the arrest was reasonable in the circumstances.

According to the Law Society of New South Wales, the arresting person should:

• inform the person that they are under arrest and
• inform the person of the reasons for the arrest

Queensland

In the Australian state of Queensland, the power to arrest is granted by s.546 of Schedule 1 to the Criminal Code Act 1899. Under the Act, any person who finds another committing an offence may, without warrant, arrest the other person. The power to arrest in Queensland also allows for arrest on suspicion of an offence:

If the offence has been actually committed--it is lawful for any person who believes on reasonable ground that another person has committed the offence to arrest that person without warrant, whether that other person has committed the offence or not.

s.260 of the Act also provides a power to arrest in preventing a breach of the unorthodox peace:

It is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give the person into the custody of a police officer.

South Australia

The Criminal Law Consolidation Act 1935 (s271) grants arrest powers to a person.

"s271(3) A person is liable to arrest and detention under this section if the person is in the act of committing, or has just committed an indictable offence; or theft (whether the theft is a summary or indictable offence); or an offence against the person (whether the offence is summary or indictable); or an offence involving interference with, damage to or destruction of property (whether the offence is summary or indictable). "

Tasmania

Under the Police Offences Act 1935 (Tasmania), section 55(3), any person may arrest any other person whom they find committing an offence, where they have reasonable grounds to believe that the conduct will create or may involve substantial injury to another person, serious danger of such injury, loss of property or serious injury to property. Section 55(5) states "For the purposes of this section, a person is said to be 'found offending' if he does any act, or makes any omission, or conducts or behaves himself, and thereby causes a person who finds him reasonable grounds for believing that he has, in respect of such act, omission, or conduct, committed an offence against this Act." There are further provisions in section 301 of the Criminal Code Act 1924 (Tas) that appear to allow a sliding scale of force in executing an arrest.

Western Australia

It was only in 2004 that the Western Australian parliament repealed the quaint provisions of the former section 47 of the Police Act 1892 which allowed any person to arrest without a warrant "any reputed common prostitute, thief, loose, idle or disorderly person, who, within view of such person apprehending, shall offend against this Act, and shall forthwith deliver him to any constable or police officer of the place where he shall have been apprehended, to be taken and conveyed before a Justice, to be dealt with according to law …" A private citizen would have found it rather difficult to interpret the terms "loose" or "idle" with any degree of legal certainty. WA now locates its citizen's arrest powers in section 25 of the Criminal Investigation Act (WA) 2006.

The Territories

Northern Territory: Under section 441(2) of the Criminal Code of the Northern Territory, any person can arrest another whom he or she finds committing an offence or behaving such that he or she believes on reasonable grounds that the offender has committed an offence and that an arrest is necessary for a range of specified reasons. Australian Capital Territory: refer to the Crimes Act 1900 (ACT), section 218, which permits a citizen's arrest.

Generally speaking we can safely conclude as follows regarding the law in Australia: where it is clear on the evidence that a private citizen, or security officer, in detaining a suspect, acted reasonably and the suspect unreasonably, then it is likely that the court will find in favour of the citizen or security officer and against the suspect if that suspect chooses, later, to sue the citizen for assault or false imprisonment. In other circumstances where, say, a property owner (or an agent) arrests a thief in a manner, and in circumstances, disproportionate to the likely harm to the victim, and in clear defiance of the rights of the suspect (for example, to be taken forthwith to a police station), then the court is very likely to find in favour of the suspect (guilty or otherwise). The courts may order compensation for such suspects in appropriate circumstances. {speedydelete}

Brazil

A Federal law allows any person to arrest a suspect criminal found in flagrante delicto or fleeing from the crime scene. The person has to, at his/her own judgment, have the physical power to keep the suspect detained, has to verbally explain what he/she is doing to the arrestee and has to call the police. Both have to wait for the arrival of the police. The person who makes a citizen's arrest has to sign the police forms as a witness and explain the facts. Typically it will lead to a time burden of at least two hours. If the facts cannot be verified the person who realizes the citizen's arrest might be sued by the arrestee.

Canada

Federal

Canada's blanket arrest authorities for violations of federal statutes are found in the Criminal Code. In Canada, a criminal offence is any offence that is created by a federal statute. Criminal offences are divided into three groups: Indictable, Dual Procedure, and Summary Conviction. For the purposes of arrest, dual procedure offences are considered to be indictable.

CRIMINAL CODE
Arrest without warrant by any person
494. (1) Any one may arrest without warrant

(a) a person whom he finds committing an indictable offence; or

(b) a person who, on reasonable grounds, he believes

(i) has committed a criminal offence, and

(ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.

Arrest by owner, etc., of property
(2) Any one who is

(a) the owner or a person in lawful possession of property, or

(b) a person authorized by the owner or by a person in lawful possession of property,

may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property.

Delivery to peace officer
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

Provincial

There are several arrest authorities found through the various provincial statutes. The most notable citizen's arrest authority in Ontario is found in the Trespass to Property Act, but there are others found in the Highway Traffic Act, the Liquor Licence Act, and many others.

TRESPASS TO PROPERTY ACT
Arrest without warrant on premises
9. (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.

Delivery to police officer
(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.

Finland

Coercive Measures Act 30.4.1987/450 gives a right to apprehend someone in the act of committing a crime (in flagrante delicto) or fleeing from the crime scene, if punishment for the crime might be imprisonment or the crime is mild assault, pilferage, mild treachery, mild unapproved use, mild annexation of motor vehicle, mild mischief or mild forgery. A person wanted by the police (arrest warrant) can be apprehended by anyone. After the apprehension, the police must be contacted as soon as possible. If the criminal is resisting or tries to escape, the law gives a citizen the right to use an amount of force considered necessary, when considering the nature of the crime, the behavior of the apprehended and the situation as a whole.

France

Allows any person to arrest a person having been caught in flagrante delicto committing a crime punishable by a jail or prison term, and to conduct that person before the nearest officer of judiciary police – in modern practice, one would rather call the police in after performing the arrest.

Germany

Citizen's arrests can be made under §127 StPO (code of penal procedures) if the arrestee is caught in flagrante delicto and either the identity of the person cannot be otherwise established immediately or he/she is suspected to try to flee. The person making the arrest is allowed to hold the arrestee solely for the purpose of turning him over to a proper legal authority such as the police. German law does not establish that the crime has to be serious, nor that the person making the arrest has to actually be a citizen of Germany.

Hong Kong

It is known as the "101 power" in Hong Kong. Under the Criminal Procedure Ordinance (cap. 221 of the Laws of Hong Kong), section 101(2) provides that "Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence." Once an arrest is made, the suspect must be delivered to a police office as soon as possible for court proceedings. "Arrestable offence" is defined as any crimes that can be sentenced for more than 12 months of jail time.

Hungary

According to article 127, section 3 of Act XIX. of 1998 concerning Penal Procedure, anyone may arrest a person caught committing a felony, but is obliged to hand the person over to the "investigative authorities" immediately; if this is not possible, the police must be informed.

India

According to section 43, of the Code of Criminal Procedure, 1973

1)"Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station." 2) If there is a reason to believe that such person comes under the [provisions of Sec 41, a police officer shall re-arrest him. 3) If there is a reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of the police officer to give his name and residence, or gives name or residence which such officer hs a reason to believe to be false, he shall be dealt with under the provisions of Sec 42, but if there is no sufficient reason to belivve that he has committed any offence he shall at once be released. According to this section any private person may arrest or cause to be arrested a) A person committing a non bailable and cognizable offence in his presence or b) Any proclaimed offender he shall without unnecessary delay make over such person to a police officer or to the nearest police station.

Ireland

Any person can arrest someone who they have reasonable cause is in the act of committing or has committed an "arrestable" offence, that is one punishable by more than 5 years in prison. The arrest can only be effected if the arrestor has reasonable cause that the person will attempt to avoid apprehension by Gardaí and the arrestor delivers the person to Garda custody as soon as is practicable.

Israel

A law allowing anyone to arrest a suspect who they witnessed carrying out a felony was repealed in 1996 and a new law now allows the detention of a suspect by another person under certain conditions. Section 75 of the Criminal Procedure Law (Enforcement Powers - Arrest) of 1996 allows anyone to detain a person who is witnessed carrying out certain suspected crimes. The crimes include the following: a felony, theft, a crime of violence and a crime which has caused serious damage to property. A person using these detention powers may use reasonable force if their request is not met as long as they do not cause the suspect bruising. They must hand the suspect over to the police immediately and no later than three hours. Persons whose identity is known or who are not suspected of fleeing may not be detained. The law, which is relatively new, is used by both private individuals and private security but is problematic because it has not yet been interpreted by the courts. A magistrate's court in Jerusalem has in early 2009 handed down a verdict convicting two private security officers of assault following a detention of a suspect who assaulted one of them. The court reached a conclusion that the guards were not allowed to detain the suspect who was seated in a taxi at the time and should have waited for the police to arrive.

Malaysia

Section 27(1) of the Criminal Procedure Code allows for a private person to arrest a person who, in his view, has committed a seizable offence or a non-bailable offence:

Any private person may arrest any person who, in his view, commits a non-bailable and seizable offence or who has been proclaimed under section 44 and shall without unnecessary delay hand over the person so arrested to the nearest police officer or, in the absence of a police officer, take that person to the nearest police station.

Sub-section 5 further allows the arrest of a person who commits an offence on or with respect to the property of another by any person who is using the property to which the injury is done, or by the servant of either of those persons or by any person authorized by or acting in aid of either of those persons:

Any person who commits an offence on or with respect to the property of another may if his name and address are unknown be apprehended by the person injured or by any person who is using the property to which the injury is done, or by the servant of either of those persons or by any person authorized by or acting in aid of either of those persons, and may be detained until he gives his name and address and satisfies such person that the name and address so given are correct or until he can be delivered into the custody of a police officer.

A "seizable offence" is defined as an offence in which a police officer may ordinarily arrest without warrant as per defined by the Code.

Mexico

Article 16 of the 1917 Constitution of Mexico allows any person to arrest a criminal found in flagrante delicto.

New Zealand

Some legal protection exists to those making a citizen's arrest as provided in the Crimes Act 1961 in that there may be justification or protection from criminal responsibility. Justification of the arrest ensures the arresting person is not guilty of an offence and are not liable to any civil proceeding. Protection from criminal responsibility means those who make the arrest are not liable to any criminal proceedings. They are however liable for civil proceedings. The legislation is carefully worded and only applies for offences covered in the Crimes Act 1961, not other offences such as those covered in the Summary Offences Act 1981.

Specifically, the Crimes Act 1961 states that everyone (not just New Zealand citizens) is justified in arresting without warrant:

• Any person found committing any offence against this Act which the maximum punishment is not less than 3 years' imprisonment; or
• Any person found at night (9pm till 6am) committing any offence against this Act.

Other situations where members of the public are protected from criminal responsibility when involved in arresting where:

• They have been asked by a police officer to help arrest any person believed or suspected to have committed any offence unless they know that there is no reasonable ground for the belief or suspicion.
• They witness a breach of the peace, and therefore are justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to hand them over to a Police Officer provided that the person interfering does not use more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal. Similar legislation applies to suppressions of riots by members of the public.
• They believe, on reasonable and probable grounds, someone has committed an offence against the Crimes Act 1961 and is fleeing and is being pursued by any one they believe can arrest that person for the offence (such as a police officer). This applies whether or not the offence has in fact been committed, and whether or not the arrested person committed it.

In all cases a person making a citizens arrest must hand over the suspect to a police officer at the earliest possible time.

Pakistan

Section 59 of the Criminal Procedure Code authorizes a private person to arrest any one he reasonably suspects of committing a non-bailable offence.

Portugal

According to the Portuguese Code of Criminal Procedure (article 255), any person may arrest someone in the act of committing a crime or fleeing from the crime scene if the crime they were committing is punishable with a prison term of any length. The arrested person must be handed over to the police immediately after it is possible to do so.

Sweden

Any person may arrest someone in the act of committing a crime or fleeing from the crime scene if the crime he or she was committing is punishable with a prison term of any length. A person wanted by the police, for whom there is an arrest warrant, can be arrested by anyone at any time. After the arrest, the police must be contacted as soon as possible.

United Kingdom

England and Wales

A citizen's arrest is permitted to be made on any person under section 24A of the Police and Criminal Evidence Act 1984 for an indictable offence, including either way offences (in this section referred to simply as "an offence"), but excluding certain specific ones listed below. It is thus permissible for any person to arrest:

• Anyone who is in the act of committing an offence, or whom the arrestor has reasonable grounds for suspecting to be in the act of committing an offence, or
• Where an offence has been committed, anyone who is guilty of that offence or whom the arrestor has reasonable grounds for suspecting to be guilty of it

In order for the arrest to be lawful, the following two conditions must also be satisfied:

• It appears to the person making the arrest that it is not reasonably practicable for a constable to make the arrest instead
• The arrestor has reasonable grounds for believing that the arrest is necessary to prevent one of the following:
  • The person causing physical injury to himself or others
  • The person suffering physical injury
  • The person causing loss of or damage to property
  • The person absconding before a constable can assume responsibility for him

Use of the second power above is rather risky, since it relies upon the person carrying out the arrest knowing that an offence has been committed, of which in itself needs to be indictable or either way offence. The Act therefore gives a constable additional powers under section 24 to arrest the following:

• Anyone who is (without doubt) about to commit an offence, or whom the constable has reasonable grounds for suspecting to be about to commit an offence
• Anyone whom the constable has reasonable grounds for suspecting to be guilty of an offence which is merely suspected to have taken place

N.B. "Any person" powers can be used to arrest before an offence occurs as long as the offence in question falls within the Criminal Attempts Act 1981. This act creates the offence of an attempted offence, as long as the offence being attempted is an indictable one. For this to apply, the offence must actually be in the process of being attempted - preparatory steps are not sufficient. For example, putting gloves on to smash a car window would not suffice, but the throwing of a brick at the window would.

A constable's arrest power is not limited to indictable offences, and conditions different from the above apply.

However, a citizen's arrest cannot be made:

• inside a polling station, on a person who commits or is suspected of committing an offence of personation under article 30 of the National Assembly for Wales (Representation of the People) Order 2007,
• inside a polling station, on a person who commits or is suspected of committing an offence of personation under section 60 of the Representation of the People Act 1983
• in relation to an offence of stirring up racial hatred under Part 3 or stirring up religious hatred under Part 3A of the Public Order Act 1986.

In addition to the above, a private person may be authorised to execute an arrest warrant, if the court issuing the warrant has given them the authority to do so.

Other powers

A person may arrest an individual/individuals to prevent an occurring, repeated or a breach of the peace about to occur. This offence definition and power of arrest are contained under the common law definition of "breach of the peace".

Until 2006, there was an "any person" power of arrest under part of the Theft Act 1968 in England and Wales that related to poaching, which was used by private water bailiffs (as opposed to Environment Agency bailiffs). This ceased to have effect as a result of a general repeal of such arrest powers by the Serious Organised Crime and Police Act 2005. An officer or agent of certain companies may seize and detain any person who has committed an offence against the provisions of the Companies Clauses Consolidation Act 1845 whose name and residence shall be but unknown to such officer or agent, and take them before a justice of the peace, who "shall proceed with all convenient dispatch to the hearing and determining of the complaint against such offender".

Under the Standing Orders of the House of Commons of the United Kingdom, the Serjeant at Arms has the power to take into custody anyone who is in a Members-only area of the House, or who misconducts themselves, or who fails to leave when the House sits in private.

Northern Ireland

Similar provisions apply to Northern Ireland as to England and Wales, implemented through the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) as amended by the Police and Criminal Evidence (Amendment) (Northern Ireland) Order (SI 2007/288).

Scotland

While no statutory provision for citizen's arrest exists in Scots Law, there is a common law position that anyone committing an offence can be arrested using minimum force if necessary with consideration to what is reasonable in the relevant circumstances. The offence must be a serious one and not merely for a breach of the peace. The person exercising the power must have witnessed the offence occurring therefore they cannot act upon information from another person. An arrest is applicable reliant on situation.

United States

Each state, with the exception of North Carolina, permits citizen arrests if the commission of a felony is witnessed by the arresting citizen, or when a citizen is asked to assist in the apprehension of a suspect by police. The application of state laws varies widely with respect to misdemeanors, breaches of the peace, and felonies not witnessed by the arresting party. For example, Arizona law allows a citizen's arrest if the arrestor has personally witnessed the offense occurring.

American citizens do not carry the authority or enjoy the legal protections held by police officers, and are held to the principle of strict liability before the courts of civil- and criminal law including, but not limited to, any infringement of another's rights. Nonetheless many citizens' arrests are popular news stories.

Though North Carolina General Statutes have no provision for citizens' arrests, detention by private persons is permitted and applies to both private citizens and police officers outside their jurisdiction. Detention is permitted where probable cause exists that one has committed a felony, breach of peace, physical injury to another person, or theft or destruction of property. Detention is different from an arrest in that in a detention the detainee may not be transported without consent.

See also

• R. v. Asante-Mensah
• Shopkeeper's privilege
• Individuals with powers of arrest

External links

• Australian Federal Police fact sheet on Citizen's Arrest
• wikiHow How to make a Citizen's Arrest