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The Citizen’s Arrest

Narrelle Harris non fiction Stuff Sherlock would know

Holmes silhouetteI’ve never seen a citizen’s arrest in real life – only on television. Specifically, on American television. Perhaps it popped up on UK and Australian shows from time to time, but it always struck me as an American thing, and even then I wondered – is it real? Can non-police people arrest suspected criminals and, if so, what are the limitations?

Naturally, while one day seeing the expression arise in an episode of a show I can’t even recall, I once more thought – is a citizen’s arrest a thing? If so, is it a thing in Australia as well as the US? Is it a thing in the UK? Is that what Sherlock Holmes and John Watson are doing when they flit about the place solving crimes? Making a citizen’s arrest (when they’re not letting the miscreant go, scot-free)?

No sooner was the question asked than I took up my trusty iPhone and searched for ‘Citizens Arrest’ – and lo, the internet gave me answers.

A Citizen’s Arrest is totally A Thing

What’s more, it is totally a thing in the US, UK and Australia, though its permutations may vary. No matter where you are, the main things to keep in mind are:

  • you need to have a very good reason to believe such an arrest is necessary. An error in judgement might well see you in court.
  • if you use more than ‘reasonable force’ you also open yourself to legal action.
  • there’s the danger that you might be harmed during your citizen’s arrest. You might cause harm to someone else – who might ultimately be innocent. Some people have died during the course of citizen’s arrests, both arrester and arrestee.

On the whole, it’s a very short step from ‘concerned citizen’ to ‘vigilante’, and I’m in no way qualified to explain where that wibbly-wobbly divide resides.

So before you start arresting likely suspects, or having the characters in your stories do the same, avail yourself of this internet resource guide to find out more.

United Kingdom

This is the jurisdiction that applies most often to Sherlock Holmes and John Watson (unless they’re off solving crime abroad).

The British site, Ask the Police – maintained by the Police National Legal Database – provides a basic guide to the relevant laws. Its section on citizen’s arrest states broadly that anyone can arrest a person who is in the act of committing an indictable offence, or whom is reasonably suspected of committing such an offence, if no police constable is available for the deed or in order to prevent injury, damage or loss of property – or if the miscreant is about to abscond.

The key as always is to know what an indictable offence means (often theft, burglary or criminal damage which can be prosecuted at a Crown Court). The previously stated provisos about reasonable force, threat of injury and the possibility of being sued if you get it horribly wrong still apply.

The Guardian has a 2011 guide to citizen’s arrest, with some practical examples of getting it right, getting it horribly wrong, and how best to approach the whole tricky business.

United States

Relevant laws vary across the states of the USA, but Duhaime's Law Dictionary has a good overview of the issue. Some states are apparently more liberal in how they determine ‘reasonable force’, while others have a list of the types of crimes to which a citizen’s arrest can be applied. It’s best to check the laws in the specific state where you live (or are setting the story). The site has some good examples of people being sued for wrongful citizen’s arrest as well as a link to the Canadian application of the law.

Trusty ol’ Wikipedia has a section on Citizen’s arrests in the US, including common law, some specific statutes in California and other states, and the notion of ‘merchant’s privilege’ which operates in some jurisdictions.

I’m guessing that the dangers of such arrests in the US are significantly higher, given the differences in gun laws between the UK, US and Australia.

Wikihow has a fantastic step by step guide to making a citizen’s arrest . (Batman probably has it down pat by now, but I guess newly minted superheroes must have it permanently on their Reader for easy reference.)

Australia

In Victoria, at least, the power to make a citizen’s arrest is covered under the Crimes Act 1958 – Section 458. The Act states, in part that a person found committing offences can be arrested, without a warrant by anyone, whether or not that anyone is a police officer.

The offences don’t have to be indictable – they might be ‘an offence punishable on summary conviction’. You might want to study the crimes act to work out what the differences are.

But broadly speaking, the citizen’s arrest can be made where the arrester believes on reasonable grounds that ‘the apprehension of the person is necessary for any one or more of the following reasons, namely—

  1. to ensure the attendance of the offender before a court of competent jurisdiction;
  2. to preserve public order;
  3. to prevent the continuation or repetition of the offence or the commission of a further offence; or
  4. for the safety or welfare of members of the public or of the offender;

A person can also conduct a citizen’s arrest ‘when instructed so to do by any police officer having power under this Act to apprehend that person’ or because ‘he believes on reasonable grounds is escaping from legal custody or aiding or abetting another person to escape from legal custody or avoiding apprehension by some person having authority to apprehend that person in the circumstances of the case.’

I hasten to emphasise that I’m not a lawyer and you really should do more research before attempting it.

Read the full details in Crimes Act 1958 – Section 458, especially before attempting to arrest anyone without a warrant.

The same powers are covered under Federal law and by similar laws in the other states of Australia.

If it all seems a bit of a brainful, you can read Sunday Explainer: Citizens Arrest  from The Age, February 2016, or Arrest in the 2016 The Law Handbook.

Keeping it Fictional

I hope this overview was useful for your writing – which is the point here. Please don’t go out there and start leaping on potential criminals, where you might get hurt or get sued.

Even Sherlock Holmes used to call in the constabulary for the mopping up part of the case whenever he could (and also whenever he wasn’t taking the law into his own hands. Not a course of action I recommend, no matter how often The Great Detective gets away with it in stories!).

Image: Holmes Silhouette by OpenClipartVectors
CC0 Public Domain

 



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