Arrest, Bail and Court Processes

Contributor: Melinda Smith

Currency of information: May 2010

Citizen's Arrest

Citizen's Arrest

(The following is adapted from material on the ACT Policing website at www.police.act.gov.au/crime-and-safety/for-act-businesses/robbery-and-theft/citizens-powers-of-arrest.aspx).

What exactly is a citizen's arrest?

A citizen's arrest is when someone who is not a duly sworn police officer detains a person because they believe on reasonable grounds that the person is committing or has just committed an offence (for example, theft, assault, criminal damage).

Factors to consider before making a citizen's arrest

You should never make a citizen's arrest merely on suspicion that a customer is committing or has just committed an offence. You must carefully consider a number of factors, including:

• are you risking your personal safety?
• do you have positive identification for the person?
• are they a 'regular customer' or known to the store?
• do you know where they live?

If you answered 'Yes' to any of these, do not detain the suspect and contact ACT Policing (see Contacts, Links and Resources).

You must also consider:

• whether the circumstances constitute 'reasonable grounds' for making a citizen's arrest; and
• your basis for forming a belief an offence has been committed.

The legislation that defines a citizen's powers of arrest

The legislation that allows you, in appropriate circumstances, to make a citizen's arrest, is s 218 of the Crimes Act 1900 (NSW-ACT). This states:

• A person who is not a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence.
• A person who arrests another person shall, as soon as practicable after the arrest, arrange for the arrested person, and any property found on the arrested person, to be delivered into the custody of a police officer.

You are legally required to inform the person why you have detained them, unless their actions make it impractical to do this.

General guidelines about powers of arrest

• You may place a customer under citizen's arrest if you believe on reasonable grounds they have committed an offence punishable by imprisonment or are in the course of committing such an offence. Mere suspicion is not enough. For further discussion of 'belief on reasonable grounds' versus 'suspicion' see below:
• To effect a citizen's arrest you must use clear words and state the reason for your action. Note: To say "I am detaining you" is preferred to "I am arresting you." This is not a legislative requirement, simply a more accepted term, especially if the matter is later considered in the courts.
• You do not have to wait until the customer has left the business premises before arresting them. However, in the case of theft, it will be easier to prove that their intention was to commit an offence if you wait until they leave the premises.
• Once you have arrested the person, you must as soon as practicable arrange for the arrested person and any property found on that person, to be delivered into the custody of a police officer. For businesses this would mean immediately contacting police.
• You may only use reasonable force to detain the suspect. See further Using force when detaining someone.
• The customer is under no obligation to answer any questions you may ask, but any questions they do answer should be taken down in writing and may be used in court.
• The customer is under no obligation to give their name and address to you.

Belief on reasonable grounds that an offence is being committed

'Belief on reasonable grounds' means that you have direct evidence that 'constitutes belief' that the customer has committed or is committing an offence. An obvious example of 'belief on reasonable grounds' would be if you were to actually see a customer take an item from a store shelf, put it into their pocket and then walk out of the store with that item, thus indicating a clear intention to not pay for it, and therefore steal it.

Mere suspicion is not enough to form 'reasonable grounds' for believing an offence is being committed. Suspicion means that you have indirect evidence that the customer has committed an offence. Examples of suspicion include:

• the theft protection buzzer sounds as someone exits the store;
• a person has spent an inordinate amount of time browsing and is consciously avoiding assistance.

In this case you do not have the power to make a citizen's arrest. Instead it is recommended you contact ACT Policing (see Contacts, Links and Resources).

Using force when detaining someone - 'reasonable force'

The legislation states, in connection with the use of force in making an arrest, that:

A person shall not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.

If more force is used than is considered reasonably necessary, then you may be charged with assault.

As a general rule, any force used must be reasonable and proportionate. The circumstances when some level of force may be justified include:

• in self-defence; or
• to prevent the escape of the offender.

The best approach to detaining a suspect is to use subtle methods of restraint such as standing around in numbers. Be very careful if you have requested a suspect to remain (of their own free will) on the premises. Indicating to a suspect that they would not be allowed to leave even if they wanted to, technically means that you have effected an arrest.

Tips to improve your personal safety when detaining a person

Some simple procedures to increase your personal safety, should you need to detain someone:

• citizen's arrests should always be made by a nominated senior member of the staff in the presence of a witness;
• be sure of what has been stolen;
• be sure that the suspect has no intention of paying for the item/s;
• be sure the suspect possesses the item/s that have not been paid for and know where the item/s are concealed;
• be sure the suspect has not replaced or disposed of the item/s;
• if you are male, do not remain alone in any secluded area or office with a female suspect and visa versa;
• do not search any suspect;
• do not solicit information from any witnesses about the offence;
• never accuse a suspect directly or indirectly of shopstealing. (Say, for example, "I am detaining you to discuss items I believe belong to the business.);
• the suspect must have been under constant observation;
• contact police immediately
• if in doubt, do nothing;
• prepare house policies and manuals;
• train your staff;
• invest in some deterring security systems;
• constantly remain calm and alert; and
• in a clear-cut case of shopstealing, you must prosecute the suspect.

Points to remember

Who do I call ?

See the Emergency Contacts section in Contacts, Links and Resources.

Contacts, Links and Resources

ACT Community Coalition on Corrections www.correctionscoalitionact.org.au

ACT Policing www.police.act.gov.au

ACT Policing Indigenous Community Liaison Officer www.police.act.gov.au/crime-and-safety/programs/indigenous-community-liaison.aspx

Arcadia House Withdrawal Centre www.directionsact.com/arcadia

Community Youth Justice www.dhcs.act.gov.au/ocyfs/services/community_youth_justice

Court Assistance and Referral Service (02) 6257 4866

Directions ACT Alcohol and Drug Services www.directionsact.com

Office of Children, Youth and Family Support www.dhcs.act.gov.au/ocyfs