The K-Zone: What is a citizen's arrest?

[Revised March 2007 to incorporate changes made by the Serious Organized Crime and Police Act (2005)].

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.

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 indictable 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 indictable offences

An indictable offence is one which is subject - at least in principle - to trial by jury. So is stealing, say, a potato, an indictable offence? Undoubtedly, as theft, in general, is an offence cable of being tried by jury. Although most minor thefts -- shoplifting, for example -- are dealt with summarily by magistrates, a person charged with such an offence is entitled to demand a trial by jury in the Crown Court (although the courts discourage this sort of thing).
      Understandably, indictable offences include, as well as theft: homicide, serious and indecent assaults, assault and/or battery, rape, criminal damage, and arson.
      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 `indictable offences' and which do not. The use of the terminology `indictable' in this context is newly-introduced by the Serious Organized Crime and Police Act (2005), SOCPA. Consequently, it isn't particularly clear, at the time of writing, whether the courts will be sympathetic to private citizens carrying out arrests for offences which they honestly believed to be indictable, and which turned out not to be. The previous legislation -- the Police and Criminal Evidence Act (1984), PACE -- used the term `arrestable offence', the class of which offences being no better defined. But the courts did not appear sympathetic to private citizens who did not know the difference between arrestable and non-arrestable offences.
      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' as defined in PACE. 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.
      In short, while most serious crimes amount to indictable offences, as do all varieties of theft and offences against the person, there are a whole raft of minor and trivial offences which are not indictable, and for which there is, therefore, no power of arrest for the private citizen.

According to s.24A of PACE (as ammended by SOCPA), any person (call him `P') can arrest another person (call him `D', for `defendant') in the following circumstances.

However, even if these conditions are met, a further restriction is that

Rule (i) is 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 accept this explanation, 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).

Rules (iii) and (iv) are new provisions introduced into PACE by SOCPA, and appear at first sight to mark a fairly substantial change in the law in this area. Item (iii) requires an arrest to be performed by a constable (i.e., any sworn police officer) where `reasonably practicable', but does that mean that it must be reasonably practicable for the purpose of crime prevention? Or reasonably practicable to apprehend the suspect? This is not clear, and there isn't much case-law in this area at present. I suspect that you couldn't lawfully perform a citizen's arrest under these new provisions if a policeman was within hailing distance, but it's less clear how a citizen would be expected to deal with such a situation as (say) finding an intruder nosing around his garden shed with a torch in the middle of the night. This probably isn't a situation where anyone is in imminent danger, and it probably is reasonable to telephone the police -- that, after all, is what most people would do. So would it be lawful to apprehend this suspect yourself, even if you are satisfied that he is in the process of committing a burglary? I don't know and, lacking further judicial scrutiny of this provision, I'm not sure that anybody knows. Clearly the intention of the new provision is to prevent people carrying out violent and ill-timed arrests as an alternative to calling the police; so my suspicion is that you would have to be fairly certain that you couldn't prevent the crime by calling the police.
      Item (iv) above -- the short list of circumstances in which citizens arrest can be performed -- probably does not create as much a restriction on citizen's arrest as might initially be assumed. This is because the final provision -- that it is necessary to prevent the suspect running away -- seems to cover most circumstances in which a citizen's arrest would, in practice, be carried out. If the suspect is willing to wait quietly for the police to arrive, no arrest is even necessary.

A particular problem for private security personnel is that neither PACE nor SOCPA grant the power to make a citizen's arrest merely on suspicion that someone is about to commit an indictable 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 indictable offence to attempt to carry out an indictable 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.

All the above are subject to the proviso that P must be reasonably sure that calling the police is not a practicable way of dealing with the situation.
      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 indictable offence, and (ii) knowledge that D committed what there is reasonable grounds for believing is an indictable 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 indictable 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).
      According to s.28 of PACE, no arrest is lawful -- whoever performs it -- unless the arrestee is told (i) that he is under arrest, and (ii) why he is under arrest, at the time of arrest or as soon as practicable after. This is the case even when both the fact of arrest and the reason for it are blindingly obvious -- a rule that police officers still fall foul of from time to time. However, this is no particular form of words to be used, except that they must be appropriate to the circumstances: ``You're nicked!'' has been upheld as valid, but I wouldn't expect the courts to look kindly on a store detective who uses this form of address when apprehending a 70-year-old granny for shoplifting.

Summary

A private citizen can lawfully arrest someone whom he or she has evidence to suspect is committing, or has committed, an indictable offence, provided that the arrest cannot practicably be performed by the police. 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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