26 / 6 / 2024

Citizen’s Arrests

‘Citizen’s Arrest’ is a term used to describe a situation where any person has the power to arrest another who is known to have committed a crime. While it is often regarded as a unique area of the law, it brings its own particular risks and should only be performed as a last resort.

The Legislation

The Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) s 100(1) describes the situations in which non-police persons can, without a warrant, arrest another person. These situations are as follows:

  1. Where a person is in the act of committing an offence under any Act or statutory instrument; or
  2. The person has just committed an offence under any Act or statutory instrument; or
  3. The person has committed a serious indictable offence (an offence punishable by imprisonment for life or a term of 5 or more years) for which the person has not been tried.

Further, LEPRA s 100(2) requires that as soon as reasonably practicable after performing a citizen’s arrest, the arrestor must take the person and any property found on them to an authorised officer.

Proper Use of Force

Though the circumstances in which a citizen’s arrest can be carried out are quite broad, there are understandably some limits on what non-police arrestors can and cannot do when performing a citizen’s arrest.

Only reasonable force may be used when carrying out a citizen’s arrest. If an arrestor uses excessive force when performing an arrest, it may become possible for the person being arrested to take legal action against the arrestor.

Further, failure to bring before an authorised officer as soon as reasonably practicable could result in other tort actions or even criminal charges against the arrestor.

A citizen’s arrest should only be carried out where it is a necessity as doing so comes with significant risks such as the possibility of getting injured, injuring the person being arrested, or exposing oneself to legal consequences if the arrest was carried out wrongly or without sufficient cause.

The Application

Individuals can only carry out a citizen’s arrest based on actual knowledge that the person they are attempting to arrest has committed a relevant offence. It is not enough that an arrestor suspects that an individual has committed an offence. They must know they did. That is, an arrestor usually must have personally witnessed the person they are arresting commit the offence.

How does a citizen’s arrest differ to police arrest?

There are a few key differences between citizen’s arrest and police arrest.

The first is that where there are charges for escaping or resisting a police arrest (s 546C Crimes Act 1900 (NSW)), there are no charges specific to escaping a citizen’s arrest.

Next, police are able to arrest individuals on much wider grounds that citizens are. Where citizens require actual knowledge of the commission of an offence, police officers are permitted to arrest purely based on suspicion on reasonable grounds of an offence.

Police officers are permitted to discontinue an arrest and not take an arrested person before an authorised officer in circumstances where the arrested person is no longer a suspect or the reason for the arrest no longer exists. This is not the case with citizen’s arrest. Once an individual has conducted a citizen’s arrest, they must continue the arrest until the person is brought before an authorised officer.

Citizen’s Arrest in the Media

Citizen’s arrest is often mentioned in news articles that tend to demonstrate either the extreme heroics of a necessary citizen’s arrest, or the excessive force used by an individual in making an arrest.

In terms of situations where excessive force has been used, in 2015 on the Sunshine Coast a coroner found that excessive force used in a citizen’s arrest was a contributor to the death of the arrested individual. However, there was no recommendation that those who were determined to have used excessive force should be prosecuted.

Conversely, a citizen’s arrest of a man in Randwick who was seen to have stabbed a woman was crucial in allowing enough time for police to arrive and continue the arrest.

Cases are not always as black and white as in the above examples. Just this year a video arose of a Northern Territory mayor sitting on a 12-year-old Indigenous boy who he claims was trespassing on his property. The footage shows the mayor kneeling on the child while another man makes verbal threats and puts his boot on the child’s head.

Ben Woodward