A citizen's arrest is an arrest made by a person who is not acting as a sworn law-enforcement official. In common law jurisdictions, the practice dates back to medieval England and the English common law, in which sheriffs encouraged ordinary citizens to help apprehend law breakers.
Despite the practice's name, in most countries, the arresting person is usually designated as a person with arrest powers, who need not be a citizen of the country in which they are acting. For example, in the British jurisdiction of England and Wales, the power comes from section 24A(2) of the Police and Criminal Evidence Act 1984, called "any person arrest". This legislation states "any person" has these powers, and does not state that they need to be a British citizen.
- 1 Legal and political aspects
- 2 Laws by country
- 2.1 Australia
- 2.2 Austria
- 2.3 Brazil
- 2.4 Canada
- 2.5 China
- 2.6 Denmark
- 2.7 Finland
- 2.8 France
- 2.9 Germany
- 2.10 Hong Kong
- 2.11 Hungary
- 2.12 India
- 2.13 Ireland
- 2.14 Israel
- 2.15 Italy
- 2.16 Japan
- 2.17 Latvia
- 2.18 Malaysia
- 2.19 Mexico
- 2.20 Nepal
- 2.21 New Zealand
- 2.22 Norway
- 2.23 Philippines
- 2.24 Poland
- 2.25 Sweden
- 2.26 Taiwan
- 2.27 Turkey
- 2.28 United Kingdom
- 2.29 United States
- 3 See also
- 4 References
Legal and political aspects
A person who makes a citizen's arrest could risk exposing him/herself to possible lawsuits or criminal charges – such as charges of false imprisonment, unlawful restraint, kidnapping, or wrongful arrest – if the wrong person is apprehended or a suspect's civil rights are violated. This is especially true when police forces are attempting to determine who an aggressor is. Private citizens do not enjoy the same immunity from civil liability when making arrests on other private citizens as do police officers.
The level of responsibility that a person performing a citizen's arrest may bear depends on the jurisdiction. For instance, in France and Germany, a person stopping a criminal from committing a crime, including crimes against belongings, is not criminally responsible as long as the means employed are in proportion to the threat. Note, however, that in both countries, this results from a different legal norm, "aid to others in immediate danger", which is concerned with prevention, not prosecution, of crimes.
Laws by country
In Australia, the power to arrest is granted by both federal and state legislation, however the exact power granted differs depending on jurisdiction. The power to arrest for a Federal offence is granted by s.3Z of the Crimes Act 1914. Under the Act, a person who is not a police constable may, without warrant, arrest another person if they believe on reasonable grounds that:
- the other person is committing or has just committed an indictable offence; and
- proceedings by summons against the other person would not: ensure the appearance of the person before a court in respect of the offence; prevent a repetition or continuation of the offence or the commission of another offence; prevent the concealment, loss or destruction of evidence relating to the offence; prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence; prevent the fabrication of evidence in respect of the offence; or would not preserve the safety or welfare of the person.
A person who arrests another person must, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a constable.
In the Australian state of Victoria, the power to arrest is granted in section 458 of the Crimes Act 1958 (Vic). It states that a person may, without a warrant, arrest a person that they find committing an offence for one or more of the following reasons:
- to ensure the appearance of the offender in court, and/or
- to preserve public order, and/or
- to prevent the continuation or repetition of the offence, or the commission of a further offence, and/or
- for the safety or welfare of the public or the offender
A person may also arrest another person if they are instructed to do so by a member of the police force, or if they believe on reasonable grounds that the offender is escaping legal custody.
Section 461 states that if an arrest is made under 458 of the Crimes Act, and is later proven to be false, then the arrest itself won't be considered unlawful if it was made on reasonable grounds. Section 462A allows any person the right to use force "not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence".
New South Wales
In the Australian state of New South Wales, the power to arrest is granted to anyone who is not a police officer by s.100 of the Law Enforcement (Powers and Responsibilities) Act 2002 of New South Wales. Under the Act, a person may, without a warrant, arrest another person if:
- the person is in the act of committing an offence under any Act or statutory instrument, or
- the person has just committed any such offence, or
- the person has committed a serious indictable offence for which the person has not been tried.
Section 231 of the Act allows the use of such force as is "reasonably necessary to make the arrest or to prevent the escape of the person after arrest". A person who arrests another person under s.100 must, as soon as is reasonably practicable, take the person, and any property found on the person, before a magistrate to be dealt with according to law. The magistrate will also decide whether or not the force applied in making the arrest was reasonable under the circumstances.
- inform the person that they are under arrest and
- inform the person of the reasons for the arrest
In the Australian state of Queensland, the power to arrest is granted by s.546 of Schedule 1 to the Criminal Code Act 1899 of Queensland. Under the Act, any person who finds another committing an offence may, without warrant, arrest the other person. The power to arrest in Queensland also allows for arrest on suspicion of an offence:
If the offence has been actually committed--it is lawful for any person who believes on reasonable ground that another person has committed the offence to arrest that person without warrant, whether that other person has committed the offence or not.
s.260 of the Act also provides a power to arrest in preventing a breach of the peace:
It is lawful for any person who witnesses a breach of the peace to interfere to prevent the continuance or renewal of it, and to use such force as is reasonably necessary for such prevention and is reasonably proportioned to the danger to be apprehended from such continuance or renewal, and to detain any person who is committing or who is about to join in or to renew the breach of the peace for such time as may be reasonably necessary in order to give the person into the custody of a police officer.
s271(3): A person is liable to arrest and detention under this section if the person is in the act of committing, or has just committed an indictable offence; or theft (whether the theft is a summary or indictable offence); or an offence against the person (whether the offence is summary or indictable); or an offence involving interference with, damage to or destruction of property (whether the offence is summary or indictable).
Under the Police Offences Act 1935 (Tasmania), section 55(3), any person may arrest any other person whom they find committing an offence, where they have reasonable grounds to believe that the conduct will create or may involve substantial injury to another person, serious danger of such injury, loss of property or serious injury to property. Section 55(5) states "For the purposes of this section, a person is said to be 'found offending' if he does any act, or makes any omission, or conducts or behaves himself, and thereby causes a person who finds him reasonable grounds for believing that he has, in respect of such act, omission, or conduct, committed an offence against this Act." There are further provisions in section 301 of the Criminal Code Act 1924 (Tas) that appear to allow a sliding scale of force in executing an arrest.
It was only in 2004 that the Western Australian parliament repealed the provisions of the former section 47 of the Police Act 1892 which allowed any person to arrest without a warrant "any reputed common prostitute, thief, loose, idle or disorderly person, who, within view of such person apprehending, shall offend against this Act, and shall forthwith deliver him to any constable or police officer of the place where he shall have been apprehended, to be taken and conveyed before a Justice, to be dealt with according to law …" A private citizen would have found it rather difficult to interpret the terms "loose" or "idle" with any degree of legal certainty. WA now locates its citizen's arrest powers in section 25 of the Criminal Investigation Act (WA) 2006.
- Northern Territory
- Under section 441(2) of the Criminal Code of the Northern Territory, any person can arrest another whom (s)he finds committing an offence or behaving such that he or she believes on reasonable grounds that the offender has committed an offence and that an arrest is necessary for a range of specified reasons.
- Australian Capital Territory
- refer to the Crimes Act 1900 (ACT), section 218, which permits a citizen's arrest.
Generally speaking, as regards the law in Australia: where it is clear on the evidence that a private citizen, or security officer, in detaining a suspect, acted reasonably and the suspect unreasonably, then it is likely that the court will find in favour of the citizen or security officer and against the suspect if that suspect chooses, later, to sue the citizen for assault or false imprisonment. In other circumstances where, e.g., a property owner (or an agent) arrests a thief in a manner, and in circumstances, disproportionate to the likely harm to the victim, and in clear defiance of the rights of the suspect (for example, to be taken forthwith to a police station), then the court is very likely to find in favour of the suspect (guilty or otherwise). The courts may order compensation for such suspects in appropriate circumstances.
In Austria citizen's arrests (in German: Anhalterecht Privater) can be made under § 80 Abs 2 StPO (code of penal procedures). The person making the arrest is allowed to hold the arrestee solely for the purpose of turning him over to a proper legal authority such as the police.
In Brazil, a Federal law allows any person to arrest a suspect criminal found in flagrante delicto or fleeing from the crime scene. The person has to, at his/her own judgment, have the physical power to keep the suspect detained, has to verbally explain what (s)he is doing to the arrestee and has to call the police. Both have to wait for the arrival of the police. The person who makes a citizen's arrest has to sign the police forms as a witness and explain the facts. Typically it will lead to a time burden of at least two hours. If the facts cannot be verified the person who realizes the citizen's arrest might be sued by the arrestee.
Canada's blanket arrest authorities for crimes or violations of federal statutes are found in the Criminal Code. In Canada, a criminal offence is any offence that is created by a federal statute—there are no "provincial crimes".
Criminal offences are divided into three groups: indictable, dual procedure, and summary conviction. For the purposes of arrest, dual procedure offences are considered to be indictable.
The Criminal Code provisions related to citizen arrests were changed in 2012, by the Citizen's Arrest and Self-defence Act. As a consequence, it is now possible to make a citizen's arrest in Canada in circumstances where a "reasonable" amount of time has lapsed between the commission of a property-related offence and the arrest.
CRIMINAL CODE494. (1) Any one may arrest without warrant
Arrest without warrant by any person
- (a) a person whom he finds committing an indictable offence; or
- (b) a person who, on reasonable grounds, he believes
- (i) has committed a criminal offence, and
- (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
Arrest by owner, etc., of property(2) The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence on or in relation to that property and
- (a) they make the arrest at that time; or
- (b) they make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest.
Delivery to peace officer
(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
For greater certainty
(4) For greater certainty, a person who is authorized to make an arrest under this section is a person who is authorized by law to do so for the purposes of section 25.
There are several arrest authorities found through the various provincial statutes. The most notable citizen's arrest authority in Ontario is found in the Trespass to Property Act, but there are others found in the Highway Traffic Act, the Liquor Licence Act, and many others.
TRESPASS TO PROPERTY ACT
Arrest without warrant on premises
9. (1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2.
Delivery to police officer
(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer.
Chinese criminal procedure law empowers any citizen to make citizen's arrest:
Article 82. Under any of the following circumstances, a person may be immediately taken by any citizen to a public security authority, a people's procuratorate, or a people's court for handling:
- (1) the person is committing a crime or is discovered immediately after committing a crime;
- (2) the person is wanted;
- (3) the person has escaped from incarceration; and
- (4) the person is being pursued for capture.
In Denmark, pursuant to § 755 (2) of the Administration of Justice Act, anyone may arrest a suspect found at or in the immediate vicinity of a crime scene if the criminal act is subject to public prosecution. The arrestee must as soon as possible be turned over to the police with information about the time of and reasons for the arrest.
In Finland, Coercive Measures Act 22.7.2011/806 gives a right to apprehend someone in the act of committing a crime (in flagrante delicto) or fleeing from the crime scene, if punishment for the crime might be imprisonment or the crime is petty assault, petty theft, petty embezzlement, petty unauthorized use, petty stealing of a motor vehicle for temporary use, petty damage to property or petty fraud. A person wanted by the police (arrest warrant) can be apprehended by anyone. After the apprehension, the detainee must be handed over to the police as soon as possible. If the criminal is resisting or tries to escape, the law gives a citizen the right to use an amount of force considered necessary, when considering the nature of the crime, the behavior of the apprehended and the situation as a whole.
French law allows any civilian to arrest a person caught in flagrante delicto committing a crime or misdemeanor punishable by a jail sentence, with the obligation to immediately bring that person before the nearest officer of police judiciaire, meaning a detective. In modern practice, one would detain the perpetrator and immediately call the nearest police, then hand over the perpetrator and any evidence to the first police officers to arrive at the scene. Use of force is not authorised, unless required for self-defense in case of violence on the part of the perpetrator.
Citizen's arrests (in German: Jedermann-Anhalte- und -Festnahmerecht) can be made under § 127 Ⅰ 1 StPO (code of penal procedures) if the arrestee is caught in flagrante delicto and either the identity of the person cannot be otherwise established immediately or (s)he's suspected to try to flee. The person making the arrest is allowed to hold the arrestee solely for the purpose of turning him over to a proper legal authority such as the police. German law does not establish that the crime has to be serious, nor that the person making the arrest has to actually be a citizen of Germany.
Citizen's arrest is known as the "101 power". Under the Criminal Procedure Ordinance (cap. 221 of the Laws of Hong Kong), section 101(2) provides that "Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence" using "force as is reasonable and proportionate in the circumstances". Once an arrest is made, the suspect must be delivered to a police office as soon as possible for court proceedings. "Arrestable offence" is defined as any crimes that can be sentenced for more than 12 months of jail time.
According to article 127, section 3 of Act XIX. of 1998 concerning Penal Procedure, anyone may arrest a person caught committing a felony, but is obliged to hand the person over to the "investigative authorities" immediately; if this is not possible, the police must be informed.
Section 43, of the Code of Criminal Procedure, 1973 states that:
- Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station.
- If there is a reason to believe that such person comes under the [provisions of Sec 41, a police officer shall re-arrest him.
- If there is a reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of the police officer to give his name and residence, or gives name or residence which such officer has a reason to believe to be false, he shall be dealt with under the provisions of Sec 42, but if there is no sufficient reason to believe that he has committed any offence he shall at once be released.
According to this section any private person may arrest or cause to be arrested
- A person committing a non bailable and cognizable offence in his presence or
- Any proclaimed offender he shall without unnecessary delay take such person over to a police officer or to the nearest police station.
The term "citizen's arrest" is colloquially used for arrest, without an arrest warrant, made by someone other than a member of the Garda Síochána. Despite the colloquial name, non-Irish citizens have performed such arrests. The law of the Republic of Ireland, being derived from English law, inherited the common law power for private individuals to arrest for felony or breach of the peace. The Criminal Law Act 1997 abolished the common-law distinction between felonies and misdemeanours and instead distinguishes "arrestable" and "non-arrestable" offences; arrestable offences are those punishable by at least five years' imprisonment, and private individuals may arrest those in flagrante, having committed, or about to commit an arrestable offence.
Several other statutes which define offences likewise state "any person may arrest" someone committing the offence; relevant offences include making off without payment, hawking revenue stamps, and property damage — this last permits arrest for a past crime as well as one in progress. In addition, the Criminal Law (Jurisdiction) Act 1976 schedules offences associated with the Troubles in Northern Ireland, and authorises anyone to arrest someone for committing or having committed such an offence, whether in the Republic of Ireland or Northern Ireland. The 1976 act, and a similar Westminster act giving reciprocal extraterritorial jurisdiction, obviated the need for extradition between the jurisdictions, which would have been more controversial.
If the arrester lacks reasonable cause to believe the arrested person to have committed the offence, the latter may sue the former for defamation, wrongful arrest, or trespass. For most offences, a private individual can only make such an arrest if the suspect would otherwise evade arrest by a Garda, and the arrester must surrender the suspect to Garda custody as soon as practicable. An exception is that stamp hawkers must be brought before the District Court. Citizen's arrests are rare; most often they are made by store detectives on shoplifting suspects.
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An Israeli law allowing anyone to arrest a suspect whom they witnessed carrying out a felony was repealed in 1996 and a new law now allows the detention of a suspect by another person under certain conditions. Section 75 of the Criminal Procedure Law (Enforcement Powers – Arrest) of 1996 allows anyone to detain a person who is witnessed carrying out certain suspected crimes. The crimes include the following: a felony, theft, a crime of violence and a crime which has caused serious damage to property. A person using these detention powers may use reasonable force if their request is not met as long as they do not cause the suspect bruising. They must hand the suspect over to the police immediately and no later than three hours. Persons whose identity is known or who are not suspected of fleeing may not be detained. The law, which is relatively new, is used by both private individuals and private security but is problematic because it has not yet been interpreted by the courts. In early 2009, a magistrate's court in Jerusalem handed down a verdict convicting two private security officers of assault following a detention of a suspect who assaulted one of them. The court ruled that the guards were not allowed to detain the suspect who was seated in a taxi at the time and should have waited for the police to arrive.
Any private citizen can, according to article 383 of the Italian Code of Criminal Procedure, arrest another person, provided they are caught "in flagranza di reato" (In flagrante delicto) and the felony they are caught committing includes mandatory arrest from the police and is "perseguibile d'ufficio", meaning that the judicial authority, once received the "notitia criminis" (a crime report), has the duty to commence prosecution, without a party necessarily filing a complaint. The person making the arrest is legally required to hand to police the arrested person and the corpus delicti to the judicial authority, failure to do so could result in the person making the arrest committing a crime.
In Japan, Section 213 of the Code of Criminal Procedure allows anyone (not only citizens) witnessing any crime in progress to make an arrest. This is called genkouhan (現行犯, meaning in flagrante delicto). Most criminals who attempt to flee, or refuse to identify themselves, can be held until police arrive. However, making a citizen's arrest to prevent petty crime (e.g. illegal assembly, accidental injury, accidental trespass, defamation of character, leaving a parking lot without paying) is false imprisonment per Section 220 of the Criminal Code.
Criminal Procedure Law in Latvia gives a right to any person to apprehend someone in the act of committing a crime (in flagrante delicto) or fleeing from the crime scene, if punishment for the crime might be imprisonment. Also a person wanted by the police, for whom there is an arrest warrant, can be arrested by anyone at any time. A person stopping a criminal from committing a crime is not criminally responsible as long as the means employed are in proportion to the threat. The arrested person must be handed over to the police immediately.
CRIMINAL PROCEDURE LAW
Section 265. Detention Procedures
(3) If there is a clear connection between a person and a committed criminal offence regarding which a punishment related to the deprivation of liberty may be applied, and such person is located at the location where the criminal offence was committed or flees from such site, or if a search for the person regarding the committing of such criminal offence has been announced, such person may be detained by anyone and shall immediately be transferred to the nearest police employee.
THE CRIMINAL LAW
Section 31. Detention Causing Personal Harm
- (1) Detention causing personal harm is an act which is directed against such person as is committing or has committed a criminal offence. Criminal liability for this act shall not apply if the harm allowed to be effected to the person is not evidently disproportionate to the character of the offence, non-compliance or resistance.
- (2) A person who, in carrying out detention, has violated conditions regarding the detention, shall be liable for violating such conditions.
- (3) If the acts by which harm has been caused to the person to be detained have not been necessary for his or her arrest, liability on a general basis applies for the harm caused.
- (4) The causing of harm to the detained person through negligence shall not be criminally punishable.
Section 27(1) of the Criminal Procedure Code allows for a private person to arrest a person who, in his view, has committed a seizable offence or a non-bailable offence:
Any private person may arrest any person who, in his view, commits a non-bailable and seizable offence or who has been proclaimed under section 44 and shall without unnecessary delay hand over the person so arrested to the nearest police officer or, in the absence of a police officer, take that person to the nearest police station.
Sub-section 5 further allows the arrest of a person who commits an offence on or with respect to the property of another by any person who is using the property to which the injury is done, or by the servant of either of those persons or by any person authorized by or acting in aid of either of those persons:
Any person who commits an offence on or with respect to the property of another may if his name and address are unknown be apprehended by the person injured or by any person who is using the property to which the injury is done, or by the servant of either of those persons or by any person authorized by or acting in aid of either of those persons, and may be detained until he gives his name and address and satisfies such person that the name and address so given are correct or until he can be delivered into the custody of a police officer.
A "seizable offence" is defined as an offence in which a police officer may ordinarily arrest without warrant as per defined by the Code.
Article 16 of the 1917 Constitution of Mexico allows any person to arrest a criminal found in flagrante delicto. A non-police officer doing so must immediately call the police, because it is illegal to retain or transport any person against their will; failing to do so is illegal deprivation of liberty, a crime similar to kidnapping that can result in a prison sentence for the perpetrator. In 2006, the celebrity bounty hunter Duane 'Dog' Chapman was charged with unlawful deprivation of liberty for arresting an American fugitive in Mexico and attempting to take him across the border to California without consulting police.
Section 9(8) of The National Criminal Procedure (Code) Act, 2017 states : "If the police is not available for the time being at the time of commission of any offence, any person who is present at the time of commission of that offence or who is eye witness thereto may prevent the person committing such offence from going away or escaping and hand him or her over to the nearby police office."
In New Zealand, some legal protection exists to those making a citizen's arrest as provided in the Crimes Act 1961 in that there may be justification or protection from criminal responsibility. Justification of the arrest ensures the arresting person is not guilty of an offence and is not liable to any civil proceeding. Protection from criminal responsibility means those who make the arrest are not liable to any criminal proceedings. They are however liable for civil proceedings. The legislation is carefully worded and only applies to offences covered in the Crimes Act 1961, not other offences such as those covered in the Summary Offences Act 1981.
- Any person found committing any offence against this Act which the maximum punishment is not less than 3 years' imprisonment; or
- Any person found at night (9pm till 6am) committing any offence against this Act.
Other situations where members of the public are protected from criminal responsibility when involved in arresting where:
- They have been asked by a police officer to help arrest any person believed or suspected to have committed any offence unless they know that there is no reasonable ground for the belief or suspicion.
- They witness a breach of the peace, and therefore are justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to hand them over to a police officer provided that the person interfering does not use more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal. Similar legislation applies to suppressions of riots by members of the public.
- They believe, on reasonable and probable grounds, someone has committed an offence against the Crimes Act 1961 and is fleeing and is being pursued by any one they believe can arrest that person for the offence (such as a police officer). This applies whether or not the offence has in fact been committed, and whether or not the arrested person committed it.
- The person making the arrest is entitled to perform a search on the suspect, provided (s)he is not working for the place of arrest (e.g. a security guard in a hospital).
In all cases a person making a citizens arrest must hand over the suspect to a police officer at the earliest possible time.
Although the Philippines does not have a national law covering citizen's arrest, the local government of Quezon City passed Ordinance 2307 or the "Citizen's Arrest Ordinance of Quezon City". Any citizens within the Quezon City area can arrest a person even without a warrant in the instances mentioned and provided by law.
In Poland any one has the right to apprehend a person caught in the act of committing an offence, or seized in a pursuit undertaken directly following the commission of an offence, if it is feared that such person may go into hiding or if his identity cannot be established. The apprehended person should be surrendered to the Police without delay.
In Sweden, any person may arrest someone in the act of committing a crime, or fleeing from the crime scene, if the crime committed is punishable by imprisonment. A person wanted by the police, for whom there is an arrest warrant, can be arrested by anyone at any time. After the arrest, the police must be contacted as soon as possible.
An arrest without a warrant is explicitly forbidden by the Article 8 in the Constitution of the Republic of China, "except in case of flagrante delicto as provided by law", as shown below:
The Code of Criminal Procedure
Article 88: Arrest without a Warrant
- A person in flagrante delicto may be arrested without a warrant by any person.
- A person in flagrante delicto is a person who is discovered in the act of committing an offense or immediately thereafter.
- A person is considered to be in flagrante delicto under one of the following circumstances:
- (1) One is pursued with cries that he is an offender;
- (2) One is found in possession of a weapon, stolen property, or other items sufficient to warrant a suspicion that he is an offender or his body, clothes and the like show traces of the commission of an offense sufficient to warrant such suspicion.
However, the first additional circumstance, i.e. "pursued with cries" has been considered ambiguous in recent years, leading to many ongoing discussions and controversies of whether this would cause an infringement of the personal freedom.
Article 90 – (1) In the instances listed below, any individual is entitled to make an arrest of another person temporarily without a warrant:
- a) If the other person was seen committing an offense,
- b) If the other person was under pursuit after committing an offense, if there is the possibility of escape of the person under pursuit after committing an offense or, if the establishment of his identity right away is not possible.
England and Wales
A citizen's arrest can be lawfully carried out on any person under section 24A of the Police and Criminal Evidence Act 1984 for an indictable offence, including either way offences (in this section referred to simply as "an offence"), but excluding certain specific ones listed below; the Ministry of Justice publishes a list of indictable offences on its website. A few examples of indictable and either way offences are theft, criminal damage, burglary, assault occasioning actual bodily harm, possession of an offensive weapon in a public place, possession of a controlled substance, etc. It is thus permissible for any person to arrest another without warrant:
- anyone who is in the act of committing an offence, or whom the arrestor has reasonable grounds for suspecting to be in the act of committing an offence, or
- where an offence has been committed, anyone who is guilty of that offence or whom the arrestor has reasonable grounds for suspecting to be guilty of it
In order for the citizen's arrest to be lawful, the following two conditions must also be satisfied:
- it appears to the person making the arrest that it is not reasonably practicable for a Constable to make the arrest instead;
- the arrestor has reasonable grounds for believing that the arrest is necessary to prevent one or more of the following:
- the person causing physical injury to themself or others;
- the person suffering physical injury;
- the person causing loss of or damage to property;
- the person absconding before a constable can assume responsibility for him
Use of the second power above ("where an offence has been committed") is more limited than the first as it relies upon the person carrying out the arrest knowing that an (indictable) offence has been committed. It is a common misconception that a member of the public needs to witness the offence before being able to act.
However, a citizen's arrest cannot be made:
- inside a polling station, on a person who commits or is suspected of committing an offence of personation (that is, pretending to be someone else in order to vote) under article 30 of the National Assembly for Wales (Representation of the People) Order 2007;
- inside a polling station, on a person who commits or is suspected of committing an offence of personation under section 60 of the Representation of the People Act 1983;
- in relation to an offence of stirring up racial hatred under Part 3 or stirring up religious hatred under Part 3A of the Public Order Act 1986.
A person cannot normally make a citizen's arrest before an offence takes place (excluding any indictable offence covered by the Criminal Attempts Act 1981), but they may prevent the commission of further offences at the time e.g. a person arrested to cease further criminal damage. However, Section 3 of the Criminal Law Act 1967 allows any person to use reasonable force for the prevention of crime. This would not allow a citizen's arrest before an offence takes place in this sense but would allow any person to use reasonable force to prevent an offence from occurring; for example, restraining a suspected offender who raised a brick in their hand in order to imminently smash a window.
"Any person" powers can be used to arrest before an offence occurs as long as the offence in question falls within the Criminal Attempts Act 1981. This act creates the offence of an attempted offence, as long as the offence being attempted is an indictable one. For this to apply, the offence must actually be in the process of being attempted – preparatory steps are not sufficient. For example, putting gloves on to smash a car window would not suffice, but the throwing of a brick at the window would. The definition of what constitutes a "crime" was clarified in R v Jones (Margaret) which stated under the S3 CLA1967 meaning, it was held to be any domestic crime in England/Wales. Kent Police have released a brief yet comprehensive guide on reasonable force
A citizen's arrest is a form of lawful custody and anyone attempting to flee may be guilty of attempting to escape from lawful custody. Furthermore, the offence of 'assault with intent to resist arrest or lawful apprehension or detainer of himself' may apply if the arrestee assaulted the arrestor under Section 38 of the Offences Against the Person Act 1861. Both assault with intent to resist arrest/lawful apprehension and escaping from lawful custody are indictable, the former being so by the mode of trial of the offence, the latter is a common law offence and therefore indictable only. Therefore, these offences - whether fully carried out or merely attempted - are citizen's arrestable in themselves.
(See also - Criminal Attempts Act 1981)
A citizen's arrest may also be made technically for a warrant for an arrest if the offence listed is indictable as there is no law prohibiting a re-citizen's arrest or the number of times they may be arrested for it nor is there a time limit. The warrant would satisfy the requirement for the arrester to have reasonable grounds to suspect the guilt of the arrestee. For example, if an offender failed to attend Crown court this would satisfy two conditions for a lawful citizen's arrest at a later date - that the offence had taken place and that it was obviously indictable by way of being tried in Crown court.
Although not technically citizen's arrest powers, any person also has the power to arrest for a common law breach of the peace which also provides any person with a power of entry. Section 3 Criminal Justice Act 1967 provides any person the power to apprehend a person unlawfully at large e.g. an offender on a recall to prison or in the circumstances where someone has managed to escape from lawful custody.
Any person may arrest an individual/individuals to prevent an occurring, repeated, or an about to occur breach of the peace. The breach of the peace power of arrest is provided by the common law and therefore an 'any person' power of arrest and entry both within the same definition.
This offence definition and power of arrest are contained under the common law definition of "breach of the peace". Section 17(5) of PACE 1984 abolished all powers of a Constable to enter under the common law with the specific exception (subsection 6) when dealing with or preventing a common law breach of the peace.
Breach of the peace powers are unusual in the fact they originate from the laws Alfred the Great consolidated into the common law approximately 1,000 years before the modern Constable was thought up. The first legislative reference to the common law breach of the peace was under the Justice of the Peace Act 1361. As a result, when a Constable uses their breach of the peace powers, they are acting 'any person' and not fully as a sworn officer in this capacity.
Until 2006, there was an "any person" power of arrest under part of the Theft Act 1968 in England and Wales that related to poaching, which was used by private water bailiffs (as opposed to Environment Agency bailiffs). This ceased to have effect as a result of a general repeal of such arrest powers by the Serious Organised Crime and Police Act 2005. An officer or agent of certain companies may seize and detain any person who has committed an offence against the provisions of the Companies Clauses Consolidation Act 1845 whose name and residence shall be but unknown to such officer or agent, and take them before a justice of the peace, who "shall proceed with all convenient dispatch to the hearing and determining of the complaint against such offender".
Under the Standing Orders of the House of Commons of the United Kingdom, the Serjeant at Arms has the power to take into custody any member of the public who is in a Members-only area of the House, or who misconducts themselves, or who fails to leave when the House sits in private.
Court Security Officers in England and Wales have the additional power to restrain and remove persons from court buildings under s53 Courts Act 2003 as well as powers of search and seizure of certain articles.
Similar provisions apply to Northern Ireland as to England and Wales, implemented through the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) as amended by the Police and Criminal Evidence (Amendment) (Northern Ireland) Order (SI 2007/288).
While no statutory provision for citizen's arrest exists in Scots law, there is a common law position that anyone committing an offence can be arrested using minimum force if necessary with consideration to what is reasonable in the relevant circumstances. The offence must be a serious one and not merely for a breach of the peace. The person exercising the power must have witnessed the offence occurring therefore they cannot act upon information from another person. An arrest is applicable reliant on situation.
Most states have codified the common law rule that a warrantless arrest may be made by a private person for a felony, misdemeanor or "breach of peace". "Breach of peace" covers a multitude of violations in which the Supreme Court has included a misdemeanor seatbelt violation punishable only by a fine. The term historically included theft, "nightwalking", prostitution, and playing card and dice games. Texas courts have defined and interpreted the term “breach of the peace” to mean an act that disturbs or threatens to disturb the tranquility enjoyed by the citizens.
Consider, for an example of this codification, California Penal Code section 837:
837. A private person may arrest another:
- For a public offense committed or attempted in his/her presence.
- When the person arrested has committed a felony, although not in his/her presence.
- When a felony has been in fact committed, and he or she has reasonable cause for believing the person arrested to have committed it.
"Public offense" is read similarly as breach of peace in this case and includes felonies, misdemeanors and infractions. Note that there is generally no provision for an investigative detention by a private person under the law. With certain exceptions (see below) an arrest must be made. "Holding them until the police get there", is simply a form of arrest. The officer is accepting the arrest and processing the prisoner on behalf of the private person.
In the case of felonies, a private person may make an arrest for a felony occurring outside their presence but the rule is that a felony must have, in fact, been committed. For example, consider a suspect that has been seen on surveillance video vandalizing a building to the extent that the arrestor believes it rises to a felony due to the damage. If they find the suspect and make the arrest but it later turns out that it was misdemeanor damage, the arrestor is liable for false arrest because a felony had not, in fact, been committed.
Because most states have codified their arrest laws, there are many variations. For example, in Pennsylvania, the courts have been clear that a citizen cannot make an arrest for a "summary offense". In North Carolina, there is no de jure "citizens' arrest". Although it is essentially the same, North Carolina law refers to it as a "detention".
Other states seem to allow only arrests in cases of felonies but court decisions have ruled more broadly. For example in Virginia, the statute appears to only permit warrantless arrests by officers listed in the Code. However Virginia courts have upheld warrantless arrests by citizens for breach of the peace misdemeanors. Other non-police citizens are granted arrest authority by statute, in the case of those who are state certified armed security officers: "A registered armed security officer of a private security services business while at a location which the business is contracted to protect shall have the power to effect an arrest for an offense occurring (i) in his presence on such premises or (ii) in the presence of a merchant, agent, or employee of the merchant the private security business has contracted to protect" and "For the purposes of § 19.2-74, a registered armed security officer of a private security services business shall be considered an arresting officer."
Use of force
In general, a private person is justified in using non-deadly force upon another if they reasonably believe that: (1) such other person is committing a felony, or a misdemeanor amounting to a breach of the peace; and (2) the force used is necessary to prevent further commission of the offense and to apprehend the offender. The force must be reasonable under the circumstances to restrain the individual arrested. This includes the nature of the offense and the amount of force required to overcome resistance. In at least one state, a citizen may use reasonable force, including deadly force if reasonable, to prevent an escape from a lawful citizen's arrest.
Shopkeeper's (merchant's) privilege
In some states of the United States, the courts recognize a common law shopkeeper's privilege, under which a shopkeeper is allowed to detain a suspected shoplifter on store property for a reasonable period of time, so long as the shopkeeper has cause to believe that the person detained in fact committed, or attempted to commit, theft of store property. The purpose of this detention is to recover the property and make an arrest if the merchant desires.
Differing liability from police
Private persons are occasionally granted immunity from civil or criminal liability, like the police are, when arresting others. While the powers to arrest are similar, police are entitled to mistake of fact in most cases, while citizens can be held to a stricter liability depending on the individual state. Police can also detain anyone upon reasonable suspicion. However, ordinary citizens cannot claim "qualified immunity" to attempt to defend against a civil complaint for false arrest.
- R. v. Asante-Mensah
- Shopkeeper's privilege
- Individuals with powers of arrest
- Powers of the police in England and Wales
- Breach of the peace (England/Wales)
- Neighborhood watch
- Hue and cry
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