What is a `Citizen's arrest?'

The notion of `citizen's arrest' is most relevant to people employed in a quasi-constabulary role, such as security guards. In general, private security personnel don't have any greater powers of arrest than any other private citizen. However, English law recognizes a number of circumstances in which one private citizen may lawfully arrest another. This article describe these circumstances, with examples of how they apply in practice.
      Since police officers are private citizens as well, the powers of `citizen's arrest' apply also to the police; but be aware that the police have extended powers of arrest not available to other people, and these powers are increasing.
      Comments, complaints, criticisms, etc., on this article are welcome; send them to the usual place: kb@kevinboone.com.

Disclaimer

This article is written for general information only. It does not purport to be exhaustive or authoritative. To the extent that it applies at all, it only applies to England and Wales, as the legal position is somewhat different in Scotland and Northern Ireland. Naturally, an article such as this is no substitute for proper legal advice.

Fundamentals

Let's start by looking at some fundamental principles relating to the notion of `arrest', and what makes an arrest lawful or unlawful.

What is an arrest?

To arrest someone is to deprive that person of his liberty. Normally the term is used in the sense of law enforcement; to deprive someone of his liberty as part of a crime is more commonly called kidnapping. It is the fact that a person is prevented from going about his business that forms the arrest. Saying `you're under arrest' does not, in itself, constitute an arrest. If the person so `arrested' runs away he has not, in law, been arrested at all. To arrest someone requires force or, at least, compulsion. Now, certain consequences may follow from an unlawful arrest, as we shall see. However if a person has not, in fact, been arrested then logically these consequences cannot flow. For example, in Goodson v Higson (2001) an off-duty police constable stopped a drunken driver and asked him to hand over his car keys and wait for the police, which he did. At trial, the driver claimed that the arrest was unlawful, as the constable had been off-duty, and had no power to arrest him. The driver claimed therefore that the Breathalyzer evidence obtained afterwards was tainted with illegality and should not be admitted. However, the court held that the driver had not actually been arrested at all: he had not been restrained or put under any compulsion. As a result, since there had not been an arrest, there could not have been an unlawful arrest.

What is a lawful arrest?

To arrest someone is to deprive that person of his liberty; in English law this is prima facie unlawful. A person arrested unlawfully is entitled to sue for damages, and to use reasonable force to resist arrest. Force used to carry out an unlawful arrest is also unlawful, and may be a criminal offence. In addition, evidence gathered as a result of unlawful arrest may be declared inadmissible in court (but don't stake your defence on it). To show that an arrest is lawful the onus is on the arrestor to show that the circumstances fell into one of the specific situations recognised as permitting an arrest.

When is a citizen's arrest lawful?

There are two situations where a citizen's arrest without warrant may be lawful: the arrestee has committed or is committing an arrestable offence, or the arrestee is `unlawfully at large'. Private citizens may also have the power to execute an arrest warrant in certain circumstances. These will each be considered in turn.

Citizen's arrest in arrestable offences

An `arrestable' offence is one for which there is a general right to arrest without warrant. Most other offences require the arrestor to obtain a warrant of arrest from a magistrate. However, a number of statutes grant powers to the police to arrest without warrant in specific circumstances.
      So what is an arrestable offence? Essentially it is offence for which an adult could - at least in principle - be sentenced to at least five years' imprisonment. This includes homicides, serious and indecent assaults, rape, criminal damage, arson, and most theft-related offences. Is stealing, say, a potato, an arrestable offence? Undoubtedly, as theft, in general, has a seven-year maximum penalty. The fact that you would never, in practice, be put inside for stealing a potato is not relevant. There is a long list of other, specific, offences which don't fall into the general definition given above, but are nevertheless arrestable offences. Space precludes a full list, but it includes carrying an offensive weapon, ticket touting, and taking a conveyance.
      It can be very difficult for a person who is not a criminal lawyer to remember which of the hundreds of defined statutory offences fall into the category of `arrestable offence' and which do not. The courts have not shown themselves sympathetic to the private citizen who gets it wrong. For example, failing to give your details to another driver at the scene of a road accident is an offence, but not an arrestable offence. In R v Jackson (1985) a man who tried to take the ignition keys from a car which had crashed into his, to prevent the owner leaving the scene, was deemed to be making an unlawful arrest. When the driver drove away, dragging the hapless would-be arrestor down the street, this was held to be self-defence: the attempted `arrest' was unlawful, and the arrestee was justified in resisting it. This despite the fact that he had just given an obviously false name.
      According to s.24(4) of the Police and Criminal Evidence Act (PACE), any person (call him `P') can arrest another person (call him `D', for `defendant') in the following circumstances. This is less clear than it might seem. If a store detective finds a customer stuffing a bottle of whiskey into his coat pocket, does that provide the store detective with grounds for a lawful arrest? Probably it does: he only needs reasonable suspicion that the customer is committing an arrestable offence. The facts would seem to support such a suspicion; it doesn't have to be a certainty. What if the customer is caught outside the shop with a bottle of whiskey in his pocket that he hasn't paid for? Then the offence (theft or burglary, both arrestable) has either already been committed, or has not been committed at all. Why might it not have been committed? A charge of theft can only be made out if the defendant is shown to be dishonest. The customer may have put the bottle of whiskey in his pocket because there was no room in his shopping basket, and then forgot to pay for it. If the magistrates believe this, then he has not committed an offence, and ipso facto the arrest is unlawful. However, if the store detective had arrested the customer while he was in the process of putting the whiskey in his pocket, that probably would be a lawful arrest, even if he is never charged with anything. Similarly, if P catches D trying to jemmy open the window of a house, P would have reasonable grounds to believe D was committing an offence, even if it was, in fact, D's own house. Even though D has committed no offence, an arrest by P might be lawful.
      The conclusion is this: if you are going to make a citizen's arrest, you stand a better chance of it being lawful if you do it while the crime is in progress, rather than after. This is an odd conclusion, but it was support by the Court of Appeal in R v Self (1992).

Another problem for private security personnel is that PACE does not grant the power to make a `citizen's arrest' merely on suspicion that someone is about to commit an arrestable offence. For example, if D is walking around a car park with a set of lock-picks in his hand, and looking greedily into all the posh cars, P might reasonably conclude that D intends to steal one of them. However, until D actually begins the process, he can't be arrested by a private citizen. He could be arrested by a constable, because PACE provides a specific power of arrest for constables in such circumstances.
      This does not necessarily mean that a citizen's arrest cannot be effected until a crime is actually in progress. By definition it is an arrestable offence to attempt to carry out an arrestable offence, whether or not the offence is, in the end, committed. An `attempt' is `any act that is more than merely preparatory' to committing the offence. Suppose D has a grudge against P, and D comes around to P's house with a petrol bomb. If P sees D lighting up a petrol bomb outside his house, does P have to wait until the bomb is actually in mid-air before apprehending D? It would appear not: lighting up a petrol bomb has to be more than merely preparatory to committing arson. However, in the car theft example, it may be that inspecting cars with a view to stealing them is no more than preparatory; the security guard would have to wait until the thief tries to get into one of the cars before arresting him.
      It should be obvious that there are a lot of `borderline' cases where it is not clear whether a `citizen's arrest' would be lawful. To sum up, a citizen's arrest by person P against person D is likely to be lawful in the following circumstances.

Citizen's arrest is unlikely to be lawful in the following circumstances. Note the subtle difference between (i) a reasonable belief that D committed what is known to be an arrestable offence, and (ii) knowledge that D committed what there is reasonable grounds for believing is an arrestable offence. This subtle shift in emphasis marks the difference between lawful arrest (case (i)) and false imprisonment (case (ii)).
      The term `reasonable grounds' also requires consideration. Why might a person have reasonable grounds to believe that an offence was being committed, or had been committed? Statute provides no definition of reasonable grounds, so we must turn to case law for assistance. In Castorina v Chief Constable of Surrey (1988), a woman was arrested in connection with thefts from her former employer. She was questioned for four hours without finally being charged, and brought legal proceedings for false imprisonment against the Chief Constable. At trial, she won the case and was awarded damages. The trial judge held that for there to be `reasonable grounds' to suspect someone of committing an offence, the facts had to be such that an ordinary person would have an `honest belief' that the person had committed the offence. The Court of Appeal held that this test was too strict. To justify the arrest, there had to be evidence that would lead a reasonable person to suspect that the arrestee had committed the offence. The test was objective: the fact that the arrestor was pathologically suspicious, or was racially biased towards believing that a certain ethnic group was naturally criminal, would not suffice. An `ordinary' person must have evidence to `reasonably suspect' the arrestee.

Citizen's arrest with warrant

In addition to a power of arrest without warrant for arrestable offences, a private citizen can carry out an arrest under the authority of an arrest warrant issued by a magistrate's court. This power has always existed in certain limited circumstances. However the Magistrates Courts (Civilian Enforcement Officers) Rules 2001 considerably widened the use of civilian officers to carry out arrests. The purpose of this enactment was to relieve the workload of the police by transferring responsibility for dealing with the arrest of non-violent offenders to civilian officers of the courts. Essentially, a person duly authorised by the court may arrest a person under the authority of an arrest warrant, for any offence. As with any other form of arrest, reasonable force may be used. However, private citizens do not have a power to force an entry to premises to execute an arrest warrant (the police do have this power, in some circumstances).
      Despite popular belief, the person executing an arrest warrant does not have to have the warrant about his person at the time. Legislation only requires that, after effecting the arrest, it be shown to the arrestee `as soon as practicable'. An arrest executed outside the terms of the warrant, or by a person not authorised to execute it, will almost certainly be unlawful.

Citizen's arrest of persons unlawfully at large

Section 3(1) of the Criminal Law Act 1967 provides that a person may use `such force as is reasonable' to effect the lawful arrest of `persons unlawfully at large'. In this context, `persons unlawfully at large' usually means people who have broken the terms of their bail, or have escaped from detention.

Citizen's arrest procedure

If you are arrested by anyone other than a constable, then the arrestor must either (i) hand you over to a constable, (ii) take you to a police station, or (iii) bring you before a magistrate to answer charges. The arrestor should do one of these things within a `reasonable' time, but the law does not require that it be done immediately (John Lewis v Timms (1952), where a one-hour delay was held to be acceptable).

Summary

A private citizen can lawfully arrest someone whom he or she has evidence to suspect is committing, or has committed, an arrestable offence. Caution is required when arresting someone who is believed to have committed an offence earlier, because if it turns out that the arrestee's actions did not amount to an offence, the arrest will have be unlawful. A private citizen can be authorised by a court to carry out an arrest under the authority of a search warrant. Finally, anybody can lawfully arrest a person who is unlawfully at large. A person carrying out a lawful arrest can use reasonable force. If the arrest turns out to be unlawful, then any force used will amount to a criminal offence and may also give rise to a claim for damages.

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