What is a Citizens Arrest?

When we think about someone being arrested, it’s usually by police or other law enforcement officers, but did you know that any member of the public is legally entitled to arrest someone else?

Under NSW legislation, in certain circumstances, a member of the public can arrest someone using the power of a citizen’s arrest.

These powers are most commonly used by security guards and other people who may not have the authority that police officers do, but who are still required to detain people who have committed crimes.

Citizen’s arrests by members of the public are not as common, but they do occur, as the recent citizen’s arrest of an Uber X driver by a hire car driver demonstrates.

The hire car driver arrested the Uber X driver on the basis that he wasn’t properly licensed and registered to drive a hire car.

After the hire car driver took him to the police station where officers checked his credentials, the Uber X driver was released without charge.

Are citizens’ arrests legal?

According to Section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, a person other than a police officer is legally allowed to arrest someone under certain circumstances.

These include where a person is in the act of committing an offence, or where a person has just committed an offence.

It is also legal to arrest someone who has committed a serious indictable offence for which they haven’t been tried.

Once a person has performed a citizen’s arrest they are required to take the arrested person along with any property found on them, to an ‘authorised officer’ as soon as possible.

There are a number of limitations that go alongside citizens’ arrests and if you are considering making a citizen’s arrest, it’s essential that you don’t endanger yourself or anyone else by doing so, and that you avoid any legal repercussions.

What are the limitations of citizens’ arrests?

There are certain legal requirements that have to be in place before a citizen’s arrest is considered legal.

If you perform a citizen’s arrest without a justifiable cause, or if you don’t bring the person before a police officer as soon as possible, you could potentially find yourself facing charges for assault, false imprisonment or deprivation of liberty.

When you make a citizen’s arrest, it needs to be on the basis of having seen the person you are arresting committing an offence rather than for mere suspicion.

Although police officers are allowed to use ‘reasonable suspicion’ to arrest someone even if they haven’t witnessed them committing a crime, the same doesn’t apply to citizens’ arrests.

It’s also important to be aware of safety if you decide to take matters into your own hands and make a citizen’s arrest.

As well as the possibility of endangering yourself, when you make a citizen’s arrest you are only allowed to use ‘reasonable force’ to detain the other person.

Excessive use of force could leave you open to assault charges, or in the case of a man who was killed by asphyxiation last year during a citizen’s arrest in Queensland, manslaughter.

 What should you take into consideration before making a citizen’s arrest?

If you are a witness to a crime, it’s important to think carefully before jumping straight in to make a citizen’s arrest.

Even if you have the best intentions, arresting someone without a good reason can leave you facing criminal charges of your own and it can be dangerous.

In many cases, if you witness a crime, especially if it is violent or the offender is armed or under the influence of alcohol or drugs, it is best to dial triple 0 and speak to the police.

You risk endangering your own life or that of people around you if you try to arrest someone who is aggressive or armed.

Police officers have weapons and training to enable them to deal with dangerous situations without getting hurt.

If you do go ahead and make a citizen’s arrest, it’s important that you either call the police or take the person to your nearest police station immediately.

If the person you are arresting is a juvenile, once you arrest them you have a special duty of care towards them, which means that if you subsequently release them it has to be to a family member or other known responsible adult.

Only use the minimum degree of force that is necessary to restrain the person.

If they don’t put up any resistance, you don’t necessarily even need to touch them.

Be aware that any harm that is caused to them as a result of the arrest could potentially leave you open to criminal charges of your own.

When you are making a citizen’s arrest, you need to inform the person you are arresting that this is what you’re doing and give them the reason for the arrest.

Although the power for ordinary citizens to make arrests does exist by law, it’s important to use common sense if you witness a crime or encounter someone who you know has committed a serious indictable offence.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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