Power of citizen's arrest put in doubt

By SIMON HENDERY

Justice reporter

Many shoplifters and petty criminals could get off scot-free after the Court of Appeal ruled that, contrary to common understanding, members of the public have only limited rights to make citizen's arrests.

The judgment, which overturns a long-held legal assumption, has stunned lawyers.
It has also prompted an urgent review by the Law Commission to see if a law change is needed.

The ruling could render security guards powerless to hold some crime suspects and prevent store detectives collaring shoplifters, both practices which are commonly undertaken.

Five judges, including Chief Justice Sir Thomas Eichelbaum and the Appeal Court President, Sir Ivor Richardson, were ruling on the case of a man accused of stealing a $100 video game power pack from a Wellington department store.

Defence lawyer Tony Ellis argued that evidence from two shop workers, who had marched the man into the manager's office, was inadmissible because the man had been illegally detained under the Bill of Rights Act.

But the Appeal Court ruled the alleged shoplifter had not been illegally detained because the workers did not have any power to arrest him in the first place.

Under the Crimes Act, members of the public (including security workers) are "justified" in making an arrest at night only when called to assist a police officer, or when a daylight crime carrying at least a maximum three-year jail penalty is being committed.

The New Zealand Law Journal said the ruling was surprising because it contradicted a widely held assumption that powers of citizen's arrest beyond those specified in the act were enshrined in legal precedents going back more than 100 years.

"If there is no power to arrest, then presumably a shoplifter can use force to escape," the journal said.

The Registrar of Private Investigators and Security Guards, barrister Gary Harrison, said: "I can see the security industry being faced with real problems, particularly in areas with a low police presence.

"It's important that security guards have some power of detention. The public should also have the same powers to stop a crime."

Police chiefs refused to discuss the case while the man's trial is pending.
However, Barry Hellberg, of the Retail Merchants Association, said they were taking legal advice on the ruling's implications for tackling shoplifters.

The president of the Law Commission, Justice Baragwanath, said: "If we think it warrants further investigation we will recommend that it be considered either by the ministry or by us."

The advantage of clearly separating the powers of police and civilians had to be weighed against the benefits of allowing the public to intervene when a crime was being committed, he said.

A spokesman for the Auckland District Law Society, Bruce Davidson, said that unless the decision was reviewed, it might be possible in the future for burglars or car thieves caught red-handed to potentially sue their captors for unjustified detention.