Legal academics Andrew Geddis and Henry Benson-Pope lay out the risks inherent in the government’s new proposal to tackle retail crime.

The government wants to expand the situations where someone can carry out a citizen’s arrest. Catch me up – what are these?

The positive power to arrest a person for a suspected breach of the law lies with state officials – most obviously the police, but also in some circumstances officials such as fisheries officers or immigration compliance officers. Those powers are expressly given by statute and are hedged around with various limitations and qualifications in terms of when they can be used.

A “citizen’s arrest” then refers to generally available statutory defences and justifications that remove forms of legal liability for anyone else carrying out an arrest. “Arresting” someone involves depriving them of their liberty, which normally would be a criminal offence in and of itself. Therefore, having these defences and justifications in the law lets people do something that the law otherwise prohibits.

The term doesn’t actually appear in any statute, but is an umbrella concept that refers to situations in which these sorts of general excuse and justification provisions apply. 

OK, so when can you “citizen’s arrest” someone at the moment?

The simple answer is, it’s complicated and situation-specific. The broad powers of private arrest and prosecution that existed before modern police forces were established have over the years been diminished to a limited range of circumstances. Meaning that, as the courts previously have stated, there are “puzzling variations” in the different circumstances in which a citizen’s arrest still is able to be carried out.

Where a person has not been requested to assist a police officer carrying out an arrest, the main circumstances in which a citizen’s arrest can be carried out are when someone finds a person committing an offence against the Crimes Act 1961:

• that has a maximum penalty of not less than three years’ imprisonment; or
• is occurring at nighttime, which is defined as between 9pm and 6am.

Having a power for citizens to forcibly detain other citizens based on maximum penalties they are unlikely to be aware of has never seemed to us to be a great idea.

However, the real relevance of the maximum penalties for the government’s concern about retail crime is that theft (read, shoplifting) of items under $1,000 in value has a maximum penalty of no more than one year’s imprisonment. That means for shoplifting from retail stores (before 9pm at least), the citizen’s arrest power is unlikely to be able to be used to stop a shoplifter leaving the store (unless they are carrying something like a 50-inch tv with them).

It is important to note that for more serious offences like burglary, robbery or aggravated robbery, citizen’s arrest powers already exist, as the maximum penalties for these actions are above three years’ imprisonment.

Some protection is also provided to someone arresting a person who they have reasonable or probable grounds to believe has committed an offence against the Crimes Act. One issue with this in relation to shoplifting is that it is often difficult to assess whether the offence has been committed (did they actually intend to steal the goods?) until the person has in fact left the store and therefore may already be beyond the reach of the shopkeepers.

So far, so complicated. What is the government now proposing by way of change?

At the moment we’ve only got a skeletal description of the headline proposals from a press release, but these include:

• Changing the Crimes Act so citizens can intervene to stop any Crimes Act offence at any time of the day (that would include theft of items worth only a few dollars).
• Requiring a person making an arrest to contact the police and follow their instructions.
• Clarifying restraints can be used, when reasonable, when making an arrest.
• Changing the defence of property provisions in the Crimes Act so it is clear that reasonable force may be used.

Interestingly, missing from the release is any express mention of this issue from earlier reporting on the government’s proposals: “It was understood the proposed changes … wouldn’t have age limitations.” Justice minister Paul Goldsmith was asked about this at the press conference announcing the changes, and appeared to confirm there would be no restrictions in terms of the age of the person being detained: “It applies equally to young people.” That’s important because at the moment our law has strict rules about the arrest of children and young people without a warrant.

The age of criminal responsibility in New Zealand is 10 years, so a child under 10 cannot be arrested and charged with an offence. For children and young people older than 10 but younger than 18 there are extra protections in cases involving lower-level offences like shoplifting to ensure they are not arrested in situations where it’s not necessary due to the likely impact of arrest on them. The importance of these restrictions is highlighted by the fact that when a child or young person is arrested without a warrant, a report about the arrest must be provided to the commissioner of police.

How exactly these protections in relation to arrest by the police and other state agencies will map onto the proposed expanded citizen’s arrest defences and justifications will be interesting to see. It would seem somewhat odd if a member of the public can arrest and physically detain a young person, only for the police to then turn up and say “we have no power in law to arrest them”.

What are the potential problems with this?

Oh, so many. Let’s start with their potential breadth. The government says that it’s making the changes to give shop owners a greater ability to respond to “retail crime” and “retail offending”. However, the proposal is for a legal defence to be available to anyone who arrests anyone for any Crimes Act offending. 

Then there’s the question of when the defence will apply. The press release says the law change will mean “citizens can intervene to stop any Crimes Act offence”. But what if someone thinks that an offence is being committed and it then turns out that one hasn’t been? Does that then mean there is no legal defence available for the purported citizen arrester?

Alternatively, if the defence is going to apply any time someone “reasonably believes” that a Crimes Act offence is being committed, then that’s a pretty expansive field for wannabe vigilante heroes. Brian Tamaki, for instance, already has expressed that he is “excited” at the thought of getting “increased powers to police … where law and order has failed”.

History shows we then can be rightly concerned about the influence of bias in the use of such an expanded power of citizen’s arrest. Experiments like New York stop-and-frisk laws would indicate that it will likely be young brown men who this will be disproportionately exercised against.

Real concerns also exist about the potential use of excessive force by those carrying out citizen’s arrest for alleged less serious offending. Those authorised by statute in New Zealand to use force, like police and corrections officers, go through significant training to promote the safe use of force in difficult and confrontational situations. We know that despite this, they do not always get it right. The risk must be greater when citizens with no such training are the ones forcefully restraining other members of the public. 

While those who exercise excessive force may not be protected by the new laws, the encouragement of the use of force in a broader range of circumstances makes the use of such force much more likely. Vigilante action can be ugly and may be excused by a public unsympathetic to those committing criminal offences. Readers may remember the recent acquittal of two men who cut off the finger of a teenage intruder into their home.

But these new laws do not only pose risks to those being placed under citizen’s arrest. The death of a shopworker in Sandringham in 2022 and a Countdown security guard in 2018 after confronting people for stealing provide very real examples of this danger. In fact, in 2017 a member of the public was killed trying to carry out a citizen’s arrest on young people who were attempting to steal his car.

Then there is the question of what happens to those who are the subject of a false citizen’s arrest, potentially being held captive for a period of time (and maybe even tied up, under the government’s proposals). The potential remedies are limited, with the victim being forced to take civil action in the courts. There are not the same protections provided by the Bill of Rights Act when arrested by police, nor the safeguard of bodies such as the IPCA to examine improper police conduct during arrests.

Given the concerns outlined above, it is difficult to see how these proposals are worth the risks. We are not in Victorian times when a thief not apprehended at the time of their offending might disappear for ever into the murky gloom of a London fog. Technological developments have meant that increasingly businesses have available sophisticated and co-ordinated tools to combat retail crime (although these too have their civil liberty and privacy concerns). Would public money be better spent assisting small business owners to acquire and use these tools or on extra resources for police in investigating retail crime rather than advancing these legislative reforms? 

You don’t seem sold on this proposal. But surely it’s got its backers, right?

Well, as noted, Brian Tamaki is positively frothing at the thought of it.

On the other hand, the Police Association and individual police officers don’t like it. Nor do the Employers and Manufacturers Association and Retail NZ. And nor does the NZCTU, whose members working in retail environments may be the ones told to take action in relation to shoplifters.

Which I guess pretty much balances the scales out, right?