Can you really make a citizen’s arrest?

Now what? Shutterstock

People often talk about making a “citizen’s arrest”, but few know what it actually means – or even whether it’s legal. Notorious examples include Dan Snow rugby-tackling a rioter in London; a man charged with assault after performing a citizen’s arrest on a person who allegedly smashed the window of a shop – and, rather infamously, the story of Fergus Beeley, ex-BBC producer, effecting a “citizen’s arrest” on a man and his family for alleged reckless driving. Video of the latter example went viral, largely because Beeley rather dramatically lost his temper.

But did they have the law on their side? In England and Wales, the relevant rules governing a civilian’s (that is, a non-sworn police officer’s) right to make an arrest are contained in section 24A of the Police and Criminal Evidence Act 1984 (often referred to as PACE). Basically, section 24A prescribes a three-stage approach to a citizen’s arrest.

1) Consider the basis

First, consider the basis for making an arrest. In essence, citizens only have cause to arrest any individual who: is in the act of committing an offence at the present time; is suspected to be in the act of committing an offence at the present time; has committed an offence at an earlier time; or is suspected to have committed an offence at an earlier time.

But there are a few things to be aware of. The first is the specific reference to the time period. There is no power to arrest an individual who is going to commit an offence – that is, an anticipated or future offence. Civilians are therefore unable to arrest any individual who they know or suspect will go on to commit an offence. In such a case, contact the police who do have such power of arrest for anticipated offences.

The legislation also requires that the individual being arrested is committing or has committed an “indictable offence”. An indictable offence is defined as one which is capable of being tried in the Crown Court. This includes both “either-way offences” (offences which can be tried in either the magistrates’ court or the Crown Court, such as theft and burglary) and “indictable-only offences” (offences which can only be tried in the Crown Court, such as murder and robbery).

Many road traffic offences and some offences against the person, such as assault and battery (they are less serious than they sound), are considered to be “summary-only offences”. They can only be tried in the magistrates’ court and fall outside of the operation of the power in section 24A.

For the layperson, the word “indictable” is likely to mean very little, so citizens must consider their options carefully, contemplate the character of the offence and ask themselves whether the offence is sufficiently serious to justify their intervention.

Case law has also ruled that for an arrest to be in line with section 24A(2), the indictable offence must have actually been committed. This means that if a defendant is later acquitted of an offence, or no offence is charged against them in the first place, the lawfulness of the arrest will be invalidated. This may mean that the citizen’s conduct is not considered lawful and an action could possibly be brought against the citizen who effected the unlawful arrest.

2) Identify the necessity for the arrest

Once it has been established that there is a cause for the arrest, the citizen must have “reasonable grounds” for believing that the arrest is necessary in the circumstances. “Reasonable grounds” means that the arresting citizen’s actions and beliefs are to be judged according to an objective standard – that is, whether a reasonable man or woman would also feel it necessary.

With great power comes great responsibility. Shutterstock

The necessity of the arrest is determined according to what was reasonably believed to be needed in order to prevent the arrestee from: causing physical injury to any person (including himself); suffering physical harm from another person; causing loss of, or damage to, property; or making off before a police officer can take responsibility for him or her.

It should be noted that only one of the four reasons needs to be proven for the arrest to be lawful.

3) Identify the reason for the arrest

Finally, it must be the case that the civilian believes that it is not reasonably practicable for a police officer to make the arrest instead. Ordinarily, this reason will be justified in circumstances where a suspect would escape from the scene of a crime but for the civilian’s intervention.

Section 24A clearly affords a great deal of power (and responsibility) to civilians should the circumstances justify it. But care is needed.

One consideration is the extent to which civilians may use force in effecting their arrest. Section 3 of the Criminal Law Act 1967 prescribes that:

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

Essentially, those effecting arrests must consider whether the force they are using is no more than is necessary in the circumstances to effect the arrest. Should the citizen use excessive force, they themselves may be liable for a criminal offence – section 24A is not a vigilante’s charter.

In fact, should you seek to arrest another in circumstances outside of the scope of the PACE provisions, you may be the subject yourself of both criminal and civil action. Specifically, you may be liable for false imprisonment and/or battery (both of which are criminal offences and civil wrongs).

And so civilians must also be aware of their “obligations” in making such an arrest. First, the law requires citizens, as soon as is practicable, to place the suspect into lawful custody (that is, with the police or a magistrate). The citizen is also obliged to inform the suspect that they are under arrest and the grounds for that arrest (that is, the offence they have allegedly committed). There is, however, no requirement to issue a caution or use a particular set of wording in making known the reasons for arrest.

Proceed with caution

Members of the public should exercise a strong degree of caution before making a citizen’s arrest and consider whether there is genuinely no possibility of a police officer carrying out the role.

In any event, where a citizen’s arrest is to be made, contact with the police ought to be the priority to ensure that a suspect is appropriately arrested and detained in accordance with the law. Likewise, if a citizen’s arrest is inevitable, consider acting with another person and recording the actions taken – in case the arrestee alleges that a citizen acted improperly in the arrest. Also consider the potential harm and risk involved (to oneself and others) in making the arrest.

It is commendable that the power of citizen’s arrest has continued to co-exist with police powers over the years. But while the right exists, it must be exercised professionally, exceptionally and cautiously.