Citizen’s Arrests (NSW)
While arrests are usually carried out by police, New South Wales legislation empowers any member of the public to carry out an arrest in certain circumstances. An arrest that is carried out by someone who is not a police officer is known as a citizen’s arrest. This page deals with citizen’s arrests in New South Wales.
Who can carry out a citizen’s arrest?
Citizen’s arrests are most often carried out by security guards and shopkeepers. However, any member of the public can carry out an arrest if there are grounds to do so. The arrestor must then take the person arrested before an authorized officer to be dealt with.
When can a citizen’s arrest occur?
Under section 100 of the Law Enforcement (Powers and Responsibilities) Act 2002, a person may arrest a person without a warrant if:
- The person is in the act of committing an offence;
- The person has just committed an offence;
- The person has committed a serious indictable offence for which they have not been tried.
A serious indictable offence means an offence punishable by five years’ imprisonment or more.
Unlawful arrests
If a citizen’s arrest is carried out, it must be done within the limits prescribed by law.
A person is permitted to use reasonable force when carrying out a citizen’s arrest. If more than reasonable force is used, the person being arrested may take legal action against the arrestor.
A person who carries out a citizen’s arrest must do so on the basis of actual knowledge that the person has committed an offence. While the police may carry out an arrest based on a reasonable suspicion, a member of the public may not do so.
If the person arrested is injured, subjected to unnecessary humiliation or degradation, or if they are not delivered promptly into police custody, this may also render the arrest unlawful.
An unlawful arrest may lead to civil consequences such as an action in tort law. It could also lead to criminal consequences such as the arrestor being charged with an offence like assault or deprivation of liberty.
A citizen’s arrest should only be carried out where it is a necessity as doing so comes with significant risks such as the possibility of getting injured, injuring the person being arrested, or exposing oneself to legal consequences because the arrest was carried out wrongly or without sufficient cause.
Other jurisdictions
Each state and territory has its own laws about the circumstances where a person may carry out a citizen’s arrest. There are significant differences in where this may occur from one jurisdiction to another.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.