At first glance, there seems to be something inherently heroic about the power to issue a citizen’s arrest. A citizen’s arrest allows any one of us to arrest a person we find committing an offence to stop the offence from continuing or ensure the offender appears in court. In other words, in extreme circumstances, anyone can suddenly step into the police’s shoes and make an arrest.
Simple, right? In reality there are very few circumstances when a citizen’s arrest is appropriate. At Gallant Law we believe that it’s important to understand why people are offending in the first place, and donning the good samaritan cape and performing a citizen’s arrest is not always the best way to do so. Having said that, it’s important to know in what circumstances a citizen’s arrest could be appropriate.
How do you perform a citizen’s arrest?
There are three essential elements to performing a citizen’s arrest. First, you must make it clear to the person that you are arresting them and the reason for the arrest. Second, you are required to detain the person. The level of force necessary to detain someone can vary greatly but must be reasonable and not excessive. Lastly, the person must submit to your arrest.
Who can perform a citizen’s arrest?
Anyone. Despite being called a ‘citizen’s arrest’, actual citizenship is irrelevant. The power to make a citizen’s arrest is contained in section 458 of the Crimes Act 1958 (Victoria) which states that ‘any person’ can make a citizen’s arrest. The most important thing is that the legislative prerequisites are satisfied.
What legislative prerequisites must be satisfied?
According to the Crimes Act, a citizen’s arrest is lawful when a person is found committing an offence. This requires that you catch the person committing the offence. Merely having a hunch that someone is or is about to commit an offence or being suspicious of their behaviour will not suffice. Simply assuming a person is offending and needs to be apprehended can have dire consequences for all parties involved.
Additionally, a citizen’s arrest must be for one or more of the following reasons:
- To ensure the appearance of the offender in court;
- To preserve public order;
- To prevent the continuation or repetition of the offence or the omission of a further offence; and
- For the safety or welfare of the public or the offender.
This may seem like a broad set of circumstances, but simply because you think a citizen’s arrest is warranted does not mean a court of law will agree.
Because of this (and because of the risks involved with conducting a citizen’s arrest), the general advice is that citizen’s arrests should be restricted to cases where there is a threat of imminent harm to yourself or another. If it’s a situation that could escalate to harm, but hasn’t yet, a citizen’s arrest is not advised. This includes a situation where a person is being threatened with harm but has not been physically hurt.
An ABC report revealed that the few situations where a citizen’s arrest may be warranted is where someone is being physically harmed to the point of loss of life or severe incapacity, or where a child is being abducted.
So, what can I do when I can see that someone is likely to commit an offence but hasn’t yet?
In these situations, contact the police immediately or others for help. Taking footage on your phone which can later be used as evidence is also advised.
What are the risks involved with a citizen’s arrest?
Performing a citizen’s arrest can not only put yourself in harm’s way, but can endanger the person you believe is the offender. Sadly, in some cases, a well-intentioned citizen’s arrest has resulted in an offender’s death.
To put it simply: you don’t know what has led an offender to be in this situation, and jumping in to perform a citizen’s arrest may trigger a threatening reaction. In 2016 there were two incidents of an offender dying during a citizen’s arrests in Victoria, in Heathcote and Frankston. Each became the subject of police investigations.
Because of the potential for harm, at Gallant Law we believe that the power to issue a citizen’s arrest is important but ought to be carefully exercised. While a citizen’s arrest may seem heroic, it can be risky to all involved. There has to be a very good reason for depriving a person of their liberty, and it’s important not to play the tough guy and overdo it.
As always, if you are seeking legal advice regarding a criminal matter, Gallant Law can assist you through this difficult time on 03 9070 9885 or on our after-hours number 0412 513 915.