Our Articles

Citizens Arrest

December 15, 2016

Ordinary citizens have a limited ability to make an arrest; however, their powers are not as wide as you may think.

This article will interest security contractors, business owners and anyone else who might find themselves in the position where they might need to react to a crime.

Technically you only have the actual right to make an arrest if you have been asked to assist someone else who is performing a legal arrest (such as a Police Constable or Fisheries Officer) (s 316 Crimes Act 1961). As an ordinary citizen, you are however given limited protection in some circumstances if you do make an arrest (s 35-38 Crimes Act 1961). This means that although you do not usually have a right to arrest, you might be protected from criminal responsibility if you do so.

  • Section 35 gives protection where you arrest a person who you actually find engaged in a criminal offence at night. If you find them by day you are protected only if the offence carries a maximum punishment of three or more years imprisonment. For these purposes ‘Night’ means between 9 p.m. and 6 a.m.
  • Section 36 does not require you to actually find an offender in the act. Protection is given if you arrest a person that you honestly and reasonably believe to be committing a criminal offence at night.
  • Section 37 overlaps, but is somewhat limited. Protection is given where you arrest a person that you honestly and reasonably believe already has committed a criminal offence (by day or by night), so long as the offence actually occurred, even if it was not the person who you arrested that committed the offence.
  • Finally, section 38 provides protection during flight, if you arrest somebody that you honestly and reasonably believe committed a criminal offence and is escaping from and being pursued by someone else whom you reasonably believe has an authority to arrest the offender.

In all cases you must have an intention to make prompt contact with the Police in order to set in motion the processes of prosecution.

It is important to note that protection is only granted for an arrest relating to a criminal offence, meaning an offence under the Crimes Act 1961 (such as murder, burglary, assault or home invasion). Protection is not granted for other offences, such as those which may be covered by the Summary Offences Act 1981 (such as disorderly behaviour, graffiti and tagging or indecent exposure) or traffic offences, which are covered by the Land Transport Act 1998 (such as dangerous or careless driving).

To actually arrest someone, you need only make it clear of your intention to apprehend. Physical contact or restraint is not a legal requirement to make an arrest, but may become necessary in some circumstances. If so, the Crimes Act provides you with some protection against the use of reasonable force if, and only if, your arrest is justified.

If you get it wrong there is the potential to face criminal charges for assault or kidnapping or civil action for false imprisonment.


Loading Conversation