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Citizens' arrests: When are they legal?

Key Takeaway

A citizen's arrest allows a non-police officer in New Zealand to detain someone they find committing an imprisonable offence, or who is escaping lawful custody. The arrested person must be handed to a police officer promptly, and only necessary, proportionate force can be used. Strict adherence to legal rules is essential to ensure the arrest is lawful.

Understanding Citizen's Arrests in New Zealand

A citizen's arrest, also known as a private person's arrest, refers to the power of an individual who is not a police officer (constable) to lawfully detain another person [Source: Crimes Act 1961, s 35]. This power is strictly defined by law and can only be exercised under specific circumstances.

When a Citizen Can Make an Arrest

A private person may arrest another person without a warrant under specific circumstances. These primarily involve situations where an individual is found committing certain types of offences or is escaping from lawful custody [Source: Crimes Act 1961, s 35].

1. Offence Committed in Their Presence

A key condition for a citizen's arrest is that the person making the arrest "finds" another person "committing" an "imprisonable offence" [Source: Crimes Act 1961, s 35(1)(a)].

  • An imprisonable offence is any offence for which a person could be sentenced to a term of imprisonment [Source: Crimes Act 1961, s 35(1)(a)].
  • "Finds committing" means that the offence is observed by the person making the arrest as it is happening or is in the process of being committed [Source: Crimes Act 1961, s 35(1)(a)].

2. Escaping Lawful Custody

A private person may also arrest someone if they have "reasonable grounds to believe" that person is escaping from lawful custody or is fleeing from someone they have "reasonable grounds to believe" is a constable (a police officer) or a person called upon to assist a constable [Source: Crimes Act 1961, s 35(1)(b)].

  • "Reasonable grounds to believe" means that there must be facts or information that would lead an ordinary, prudent person to conclude that the person is escaping or fleeing [Source: Crimes Act 1961, s 35(1)(b)].

3. Offences Relating to Property

There is a specific provision for arresting a person found committing an offence against the Crimes Act 1961 that is punishable by imprisonment and relates to property. This power can be exercised by the owner or occupier of the property, or any person authorised by them [Source: Crimes Act 1961, s 37(1), s 37(2)]. The person must still be found committing the offence [Source: Crimes Act 1961, s 37(1)].

Obligations of the Person Making the Arrest

When a citizen makes an arrest, they also take on specific legal obligations.

1. Handing Over to a Constable

Any person who makes a citizen's arrest must, as soon as practicable, deliver the arrested person into the custody of a constable [Source: Crimes Act 1961, s 35(2), s 37(3)]. "As soon as practicable" implies without undue or unreasonable delay [Source: Crimes Act 1961, s 35(2)].

2. Informing the Arrested Person of the Reason

Although the Crimes Act 1961 does not explicitly state this as a duty for private citizens, every person who is arrested or detained has the right to be informed of the reason for their arrest or detention at that time [Source: New Zealand Bill of Rights Act 1990, s 23(1)(a)]. To ensure the lawfulness of the detention and respect for the arrested person's rights, the person making the arrest should inform the arrested person of the reason for their arrest [Source: New Zealand Bill of Rights Act 1990, s 23(1)(a)].

3. Use of Force

A person who is authorised by law to make an arrest, including a private citizen, may use such force as may be necessary to overcome any force used in resisting the arrest [Source: Crimes Act 1961, s 39(1)]. However, the person making the arrest must not use more force than is necessary to prevent the escape of the person arrested [Source: Crimes Act 1961, s 39(2)]. This means that the force used must be proportionate and reasonable in the circumstances [Source: Crimes Act 1961, s 39(2)].

Important Considerations

Adherence to Legal Requirements

It is critical that any citizen considering making an arrest fully understands and adheres to the strict legal requirements. An arrest not made in accordance with the legal provisions for a private person's arrest is considered unlawful [Source: Crimes Act 1961, s 35, s 37].

When to Seek Independent Legal Advice

Individuals seeking to understand the specific implications of citizen's arrest laws for their particular situation, or facing legal issues related to an arrest, are encouraged to seek independent legal advice. Information on legal aid and services can be found through Community Law Centres or the New Zealand Law Society.

Key Resources