Citizen's arrest: A tool or a trap?

Among many notable comments emerging from this year’s Conservative party conference was Chris Philp’s suggestion (made at a fringe event hosted by Policy Exchange) that members of the public could 'help tackle the epidemic in shoplifting' by making citizens’ arrests of suspects. 

This comment deserves closer analysis, as it opens up an area of the law which is complex and raises a number of legal risks (in addition to the risks to personal safety which could easily arise when tackling a suspected criminal). Members of the public do not have the same powers of arrest as the police, and it is no coincidence that many shop-workers have been trained not to intervene in suspected shoplifting.

In reporting Philp’s comments, The Times rightly noted section 3 of the Criminal Law Act 1967 (CLA). This statutory provision replaces the common law position, and permits any person to use 'such force as is reasonable in the circumstances' in relation to the prevention of crime, or in effecting or assisting in the lawful arrest of an offender, a suspected offender, or a person 'unlawfully at large'.

Also of relevance here – perhaps more so – is section 24A of the Police and Criminal Evidence Act 1984, which was introduced on 1 January 2006. This section explicitly permits a person (not necessarily a 'citizen') who is not a police officer to arrest another person who is in the act of committing an 'indictable' criminal offence, a person who is guilty of such an offence, or someone who the bystander has reasonable grounds for suspecting to be committing or to have committed an indictable offence.

The potential hero must therefore understand which offences fall into the 'indictable' category, those offences that may be tried at the Crown Court. Some are obvious: rape, murder, grievous bodily harm, and illegal possession of a firearm. But some ostensibly 'serious' offences fall into the 'summary only' category, meaning they can only be dealt with at the magistrates’ court and in respect of which the citizen is not permitted to arrest. Such summary offences include criminal damage (other than arson) up to a value of £5,000, common assault and threatening and disorderly behaviour. 

The problem is becoming clear: there can be few members of the general public who would be able to make the properly informed assessment, in the heat of the moment, of whether the potential criminal offence they suspect they are witnessing falls into the correct category to trigger lawful powers of arrest under section 24A. Even police officers can and do misclassify suspected offences.

Relying on section 3 of the CLA may help avoid having to assess the seriousness of the offence, but it nevertheless does require the potentially difficult assessment of what constitutes 'reasonable' force in the circumstances. As we know from several highly publicised cases of householders facing prosecution for fighting off burglars, the concept of 'reasonable' is not fixed and the consequences of getting it wrong can be severe. 

Philp was noted as accepting that the police cannot be everywhere. While undoubtedly true, it does not provide much reassurance to a member of the public pinning down a suspected thief and urgently awaiting the arrival of police support. Indeed it is plausible that the scarcity of police resources - a consequence of funding decisions - is the main driver behind Philp's plea for public assistance.

Yet further disincentive to take matters into one's own hands came in the form of other plans promoted at the Conservative party conference (this time by Alex Chalk, current lord chancellor and justice secretary): should these come to fruition, a citizen who makes a well-intentioned but ultimately unlawful arrest, leading in the worst-case scenario to conviction and imprisonment for assault, will face the prospect of being detained in a far-distant, foreign prison cell.

The conclusion can only be that it is, in almost all cases, best to leave the apprehension of criminals to the professionals (and so to ensure that those professional services are effectively resourced). The only exception may be where there is a real and direct threat to personal safety, when the law on self-defence is likely to be engaged.

Ed Smyth is a criminal litigation partner at Kingsley Napley