Citizen's arrest
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A citizen's arrest is an arrest performed by a person acting as a civilian, as opposed to a sworn law enforcement officer. In common law jurisdictions, the practice dates back to medieval England and the English common law, when sheriffs encouraged ordinary citizens to help apprehend law breakers.
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[edit] Legality
Despite the title, the arresting person does not usually have to be a citizen of the country where he/she is acting, as they are usually designated as any person with arrest powers. In the USA, when performing a citizen's arrest it is advisable not to give a Miranda Warning or caution as this could be construed as impersonating a police officer; instead the arrestor should try to remember and tell the police officers anything the detained person has said.
[edit] Australia
[edit] Queensland
Section 546 Criminal Code: Arrest without a warrant. “When an offence is such that the offender may be arrested without warrant generally-- (b) It is lawful for any person who is called upon to assist a police officer in the arrest of a person suspected of having committed the offence, and who knows that the person calling upon the person to assist is a police officer, to assist the officer, unless the person knows that there is no reasonable ground for the suspicion;
(c) It is lawful for any person who finds another committing the offence to arrest the other person without warrant;
(d) 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;
(e) It is lawful for any person who finds another by night, under such circumstances as to afford reasonable grounds for believing that the other person is committing the offence, and who does in fact so believe, to arrest the other person without warrant.”
Section 260: 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."
[edit] South Australia
Any person may arrest a person guilty of a breach of the Criminal Law Consolidated Act. They must make it clear they are arresting the person by words or actions.
[edit] Canada
Section 494 of the Criminal Code of Canada covers citizen's arrest for Canada. One can arrest a person found in the act of committing an indictable offence. One can also arrest a person being "freshly pursued" (for example, by the police) if one has grounds to believe that person has committed a criminal offence (whether that crime is an indictable offence or a summary conviction offence).
Paragraph two of the section permits a property owner, or a person authorized by the owner (i.e. a security guard), to make a citizen's arrest of a person found committing a criminal offence (whether indictable or summary conviction) on or to that property. Thus, you could arrest someone you find vandalizing your house.
If you make a citizen's arrest you must deliver the arrested person to a police officer as soon as possible.
The Supreme Court of Canada dealt with the powers of arrest of non-police officers and with the degree of force permitted in a recent case, R. v. Asante-Mensah.
[edit] England and Wales, United Kingdom
A citizen's arrest (officially called an "any person arrest") is permitted to be made on any person under section 24A of the Police and Criminal Evidence Act 1984 (as amended by the Serious Organised Crime and Police Act 2005) for an indictable offence (in this section referred to simply as "an offence"). It is thus permissible for any person to arrest:
- Anyone who is (without doubt) 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
- Where an offence has been committed (without doubt), anyone who is (without doubt) guilty of that offence or whom the arrestor has reasonable grounds for suspecting to be guilty of it
In order for the arrest to be lawful, the following two conditions must also be satisfied:
- 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 of the following:
- The person causing physical injury to himself or others
- The person suffering physical injury
- The person causing loss of or damage to property
- The person making off before a constable can assume responsibility for him
Use of the second power above is rather risky, since it relies upon the person carrying out the arrest knowing that an indictable or either way offence has been committed. If, for example, the arrested person is later acquitted in court then it could be concluded that no offence has been committed; thus the arrest would be unlawful. The Act therefore gives a constable three additional powers, to arrest:
- Anyone who is (without doubt) about to commit an offence, or whom the constable has reasonable grounds for suspecting to be about to commit an offence
- Anyone whom the constable has reasonable grounds for suspecting to be guilty of an offence which is merely suspected to have taken place
A constable's arrest power is not limited to indictable offences, and conditions different from the above apply.
In addition to the above, a private person may be authorised to execute an arrest warrant, if the court issuing the warrant has given them the authority to do so, and any person may arrest someone who is "unlawfully at large" (for example, an escaped prisoner).
[edit] France
Allows any person to arrest a person having committed in flagrante delicto a crime punishable by a jail or prison term, and to conduct that person before the nearest officer of judiciary police – in modern practice one would rather call the police in after performing the arrest.[1]
[edit] Germany
Citizen's arrests can be made under §127 StPO (code of penal procedures) if the arrestee is caught in flagrante delicto and the identity of the person cannot be otherwise established immediately.[2] 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.
[edit] Hong Kong
Known as the '101 power' in Hong Kong. Under Hong Kong Laws. Chap 212 Criminal Procedure Ordinance, Section 101 Summary apprehension of offender in certain cases, subsection 2 "Any person may arrest without warrant any person whom he may reasonably suspect of being guilty of an arrestable offence." Once made an arrest, 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.[3]
[edit] Ireland
Any person can arrest someone who they have reasonable cause is in the act of committing or has committed an "arrestable" offence, that is one punishable by more than 5 years in prison.[4] The arrest can only be effected if the arrestor has reasonable cause that the person will attempt to avoid apprehension by the Gardai and the arrestor delivers the person to Garda custody as soon as is practicable.
[edit] Mexico
Article 16 of the 1917 Constitution of Mexico allows any person to arrest a criminal found in flagrante delicto.[5]
[edit] New Zealand
Citizen's arrests can be made if the crime is being committed at night, is punishable by three or more years of imprisonment, and the person is attempting to escape from the person making the arrest. The person making the arrest must also inform the suspect the reason he or she is being arrested and take him or her to the nearest police officer.
[edit] Sweden
Any person may arrest someone in the act of committing a crime or fleeing from the crime scene if the crime they were committing is punishable with a prison term of any length. A person wanted by the police (arrest warrant) can be arrested by anyone at anytime. After the arrest, the police must be contacted as soon as possible.
[edit] United States
All states other than North Carolina permit citizen arrests if a felony crime is witnessed by the citizen carrying out the arrest, or when a citizen is asked to help apprehend a suspect by the police. The application of state laws varies widely with respect to misdemeanor crimes, breaches of the peace, and felonies not witnessed by the arresting party. Note particularly that American citizens do not have the authorities or the legal protections of the police, and are strictly liable before both the civil law and criminal law for any violation of the rights of another.[6] In the United States, the police do not have to determine the legality of the citizens arrest and this practice has been greatly criticized.
North Carolina General Statutes do not provide for citizen arrest, but instead provide for detention by private persons.[7] These statutes apply both to civilians and to police officers outside their jurisdiction. Citizens and police may detain any person who they have probable cause to believe committed in their presence a felony, breach of the peace, physical injury to another person, or theft or destruction of property. The key distinction between an arrest and a detainment is that the detainee may not be transported without their consent.
[edit] Citizens arrest as a form of vigilante justice
Citizens arrest has been criticized by legal and human rights activists who have labelled it as vigilante justice. Critics claim that it promotes a lynch mob mentality.[8]
[edit] Legal and political aspects
A person who makes a citizen's arrest could risk exposing themselves to possible lawsuits or criminal charges (such as charges of impersonating police, false imprisonment, kidnapping, or wrongful arrest) if the wrong person is apprehended or a suspect's civil rights are violated.
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 at least in Germany this results from a different legal norm: "self-defense" and "aid to others in immediate danger"—which are concerned with prevention not prosecution of crimes).
[edit] Personal safety
The act of making an arrest may be dangerous in several senses. First and foremost is the likelihood that the arrest will be resisted, possibly with force or even a weapon. Further, the typical private person is not trained or equipped to carry out an arrest safely—even security guards who are familiar with citizen's arrest may lack sufficient training. As well, many legal jurisdictions consider the citizen's arrest to be a special case where any mistake by the arresting party may result in civil or criminal liability. Excessive force may result in criminal charges against the arresting party.
In areas where police services are available, anyone witnessing a serious crime is usually advised for their own safety to notify the police rather than attempting direct intervention. Even if intervention is attempted, the safest objective may be to scare off the assailant or criminal rather than to attempt to take them into custody. In addition, it is also advised that anyone witnessing a crime also focus on trying to remember as much detail as possible such as the appearance of the criminal in order to supply the police with information.
[edit] External links
- Ask Yahoo! - "How do I make a citizen's arrest?"
- The Constitution Society Guide to a Citizen's Arrest
- Australian Federal Police fact sheet on Citizen's Arrest
[edit] References
- ^ Code of penal procedure (France), L73
- ^ §127 StPO (code of penal procedures) (Germany)
- ^ Criminal Procedure Ordinance (Hong Kong), Chapter 212, Section 101
- ^ Criminal Law Act 1997 (Ireland), Section 4
- ^ Constitution of Mexico, Article 16
- ^ [1] Columbia Law Review, Vol. 65, No. 3 (Mar., 1965), pp. 502-513
- ^ [2]
- ^ Article printed in the Arizona Star
