The aim is to expand and clarify the powers, which would deter retailcrime because shop workers would be less hesitant about what they could do and how much force they could use.
Ministry of Justice officials questioned any deterrent effect or public safety benefit, and raised concerns about escalating violence.
The Government’s proposals to broaden and clarify citizen’s arrest powers have no public safety benefit, won’t deter retail crime, and could increase the risk of escalating violence, Justice Ministry officials say.
And police are warning officers may end up charging those who take the law intotheir own hands with excessive force.
Justice Minister Paul Goldsmith told the Herald he “fundamentally disagreed” with his officials’ concerns, outlined in the ministry’s regulatory impact statement (Ris), which include whether children or young people – who are inherently vulnerable – will be restrained, or Māori unfairly targeted.
“Perceived ability to use force, including mechanical restraints, may lead to unreasonable use of force and unlawful detention, which could be seen as being inconsistent with the Bill of Rights Act,” the Ris said.
The Government has announced proposals to broaden citizen’s arrest powers to help tackle rising retail crime, which is estimated to cost $2.6 billion a year and affect 92% of retailers. The number of theft reports to police from retail premises increased by 205% between September 2019 and September 2024.
Expanding citizens' arrest powers is part of the Government's attempt to tackle retail crime. Photo / Hayden Woodward
Currently, a citizen’s arrest for theft cannot be made outside the hours of 9pm-6am unless the goods being stolen are worth at least $1000, which is not so easy to ascertain. A citizen’s arrest at any time of the day is restricted to offences punishable by at least three years’ imprisonment.
The Government wants to expand the power and clarify the use of reasonable force, loosely defined as what is necessary and proportionate in the circumstances, including when someone is resisting arrest. Police must be contacted immediately and their instructions followed.
Goldsmith was scarce on details when announcing the proposals in February, but added that someone would be able to detain and restrain an offender, including tying them up.
The proposals followed feedback from the Ministerial Advisory Group (Mag) for Victims of Retail Crime, which called for making a citizen’s arrest before any offending took place, as long as there are reasonable and probable grounds it will occur.
Ministry of Justice officials said this increased the likelihood of capturing innocent people. Instead, they recommended dropping the $1000 threshold for stolen goods and getting rid of statutory restrictions on reasonable force (no striking, no bodily harm), which case law has already weakened.
Cabinet opted for somewhere in between, saying citizen’s arrest should apply to any offence under the Crimes Act at any time of day, and clarifying reasonable force: it can include physical or mechanical restraints, as well as striking or causing bodily harm, in the right circumstances.
“The Mag’s rationale is that increased certainty (with respect to when the public can intervene and what level of force is permitted) will enable and empower the public to intervene, which will then deter criminal offending,” the Ris said.
Guy Body's February editorial cartoon on the new citizens' arrest laws. Illustration / Guy Body
But officials doubted the proposals would make any difference. They would have no impact on the main reasons, identified in the Mag report, behind hesitancy to make a citizen’s arrest:
poor training among security guards
health and safety law (employers are risk-averse in exposing staff to risk)
perceptions over poor police resourcing and responsiveness
“Given these external factors, it is not expected that any proposed legislative amendments will ultimately lead to any significant deviation from the status quo,” the Ris said.
While the proposals may clarify the law around citizen’s arrests, “the lack of understanding is not what creates the hesitancy to intervene, so there is no anticipated effect on offending levels (ie, these proposals are not expected to deter offenders)”.
Nor did officials anticipate the proposals leading to greater use of citizens’ arrests, “so no impact on public safety is anticipated”.
“The ministry was unable to access any material evidence to substantiate the Mag’s policy problem, nor was it possible to gather any evidence from agencies in relation to arrests and defence of property.”
Goldsmith said the proposals - a balance between the more “radical” suggestions from the Mag and the “cautious” ones from his officials - provided additional tools for the “massive challenge” of retail crime.
“People worry about putting workers in harm’s way by doing this. Of course, nobody’s telling workers to do anything and every business can make a decision for themselves as to whether they use this ability.
“There may be circumstances for somebody to take hold of somebody and hold them until the police arrive.”
Even children?
“Yes, potentially.”
Mag chair Sunny Kaushal said the officials’ advice lacked balance.
“Did not officials say similar things about Three Strikes [which is yet to take effect] and banning gang patches? The officials’ concerns with the gang patch ban have not eventuated.”
Dairy worker Janak Patel was killed in 2022 after confronting a thief.
Police fear escalating violence
The proposals earned a rebuke from Retail NZ, which warned that retailers could die if the changes exacerbated the existing risk of escalating violence.
This is what happened in 2022, for example, when Frederick Hobson stole a cash register and stabbed Auckland dairy worker Janak Patel to death, after Patel confronted him 100m from the business. Hobson later pleaded guilty to murder.
Police echoed Retail NZ’s concerns in the Ris, “that situations of low-level theft escalate into more serious violent situations”.
Other police concerns included:
offenders could respond by targeting places with less security, such as lone retail operators, and then be more violent than otherwise to deter any attempt at a citizen’s arrest
citizens could make arrests where police would not, such as for relatively trivial matters or where the evidence to lay a charge is lacking
shop workers might use excessive force, leading to police prosecuting them; Ministry of Justice officials said the risk of knowingly using excessive force was minimal; that didn’t mean someone might use it but think it was reasonable
The latter point has been highlighted by Canterbury University Professor Jeremy Finn, a member of the Law Society’s criminal law committee.
“Tying somebody up, that’s an assault. That’s not using reasonable force to make the arrest," Finn said.
Retail crime is estimated to cost $2.6 billion a year.
“If you’ve arrested somebody and they’re just sitting quietly in a chair in the corner, I would have thought any attempt to physically restrain them, unless you can point to a particular statutory authorisation, I would have thought that’s very problematic.”
Police joined other agencies in their unease over whether children and young people could be restrained or detained, noting the Oranga Tamariki Act does not permit mechanical restraints due to children and young people’s inherent vulnerability.
The potential for unreasonable use of restraints was “especially concerning in relation to alleged youth offenders (who may be more likely to be arrested given they are typically physically easier to restrain that alleged adult offenders)“, the Ris said.
“Further, Māori are more likely to be disproportionately impacted by these changes (if more arrests occur).”
The Government intends to progress its citizen’s arrest proposals this year, and is awaiting feedback from the Mag on the next phase in its attempt to tackle retail crime.
That includes overhauling trespass law, introducing on-the-spot fines for shoplifting, and enabling facial recognition technology.
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Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the Press Gallery team and is a former deputy political editor.
