Citizen's power of arrest

You should never make a citizen's arrest merely on suspicion a person is committing or has just committed an offence. You must carefully consider a number of factors, including:

• are you risking your personal safety?
• do you have positive identification for the person?
• are they a 'regular customer' or known to the store?
• do you know where they live?

If you answered 'Yes' to any of these, do not detain the suspect and contact ACT Policing on 131 444.

You must also consider whether the circumstances constitute 'reasonable grounds' for making a citizen's arrest and your basis for forming a belief an offence is or has been committed.

The legislation that allows you, in appropriate circumstances, to make a citizen's arrest, states:

• A person who is NOT a police officer may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an offence.
• A person who arrests another person shall, as soon as practicable after the arrest, arrange for the other person, and any property found on the other person, to be delivered into the custody of a police officer.

You are legally required to inform the person why you have detained them, unless the suspect's actions make it impractical to inform them.

• You may place a person under citizen's arrest if you believe on reasonable grounds they have committed an offence or are in the course of committing such an offence.
• Reasonable grounds means you have direct evidence that 'constitutes belief' that the person has committed an offence. An obvious example of 'reasonable grounds' would be if you were to actually see a customer take an item from a store shelf, put it into their pocket and then walk out of the store with that item, thus indicating a clear intention to not pay for it, and therefore steal it.
• Suspicion means you have indirect evidence the customer has committed an offence. Examples of suspicion include: The theft protection buzzer sounds as someone exits the store; a person has spent an inordinate amount of time browsing and is consciously avoiding assistance.
• To affect a citizen's arrest you must use clear words and state the reason for your action. Note: To say "I am detaining you" is preferred to "I am arresting you." This is not a legislative requirement, simply a more accepted term, especially if the matter is later considered in the courts. You are also required to tell the person ‘detained’ the reason or offence that you are detaining them for.
• In the case of theft, it will be easier to prove that their intention was to commit an offence if you wait until they leave the premises. For offences like assault or criminal damage you do not have to wait until the person has left the business premises before detaining them.
• The customer is under no obligation to answer any questions you may ask, but any questions they do answer should be taken down in writing and may be used in court.
• The customer is under no obligation to give their name and address to you.

The legislation states, in connection with the use of force in making an arrest, that:

• A person shall not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.

As a general rule, any force used must be reasonable and proportionate. The circumstances when some level of force may be justified include:

• in self-defence
• to prevent the escape of the offender.

The best approach to detaining a suspect is to use subtle methods of restraint such as standing around in numbers. Be very careful if you have requested a suspect to remain (of their own free will) on the premises. Indicating to a suspect that they would not be allowed to leave even if they wanted to, means that you have affected an arrest. Closing them in a room would also mean that you have affected an arrest.

Some simple procedures to increase your personal safety, should you need to detain someone:

• citizen's arrests should always be made by a nominated senior member of the staff in the presence of a witness
• be sure of what has been stolen
• be sure that the suspect has no intention of paying for the item/s
• be sure the suspect possesses the item/s that have not been paid for and know where the item/s are concealed
• be sure the suspect has not replaced or disposed of the item/s
• if you are male, do not remain alone in any secluded area or office with a female suspect and visa versa
• do not search any suspect
• do not solicit information from any witnesses about the offence
• inform the person that you are detaining them for the purpose of discussing an item/items that the person may have that has not been paid for
• the suspect must have been under constant observation
• contact police immediately on 131 444