New Zealanders can now detain a person they find committing any offence under the Crimes Act, at any hour of the day, after the biggest expansion of citizen’s arrest powers in decades took effect this month. Police have since put out a public guide on how to do it lawfully, and their first piece of advice is that in most situations you should not do it at all.
The change came through the Crimes Amendment Bill, which passed its final reading on 6 August. Justice Minister Paul Goldsmith said at the time that the majority of the legislation would take effect within a week, and 1News reported on Sunday that the citizen’s arrest provisions are now operating. NEWS WIRE covered the bill as it headed for its final vote earlier this month.
Until this month the law drew an awkward line around the clock. Between 9pm and 6am a person could rely on the citizen’s arrest defence for any Crimes Act offence. In daylight hours the defence only applied to offences carrying a maximum penalty of at least three years in prison. That left shopkeepers in the strange position where the same act of shoplifting could be dealt with at 10pm but not at 10am. Goldsmith used the example of theft under $1,000, which under the old wording was only covered overnight.
The rewritten section 35 of the Crimes Act removes both the time limit and the seriousness threshold. Two related sections changed as well. Section 39 now spells out that physical or mechanical restraints may be used where that is reasonable, and section 52, which covers the defence of property, has been reworked so that reasonable force is available in a wider set of circumstances. There is a new string attached. A person who makes an arrest has to contact police as soon as practicable and follow their instructions, and skipping that step costs them the legal protection the change was meant to provide.
The police guidance, published on the retail crime prevention hub, sets out a short list of things that have to happen for an arrest to hold up. You need reasonable grounds to believe an offence under the Crimes Act has been committed, and you need to be sure you have the right person. You have to tell the person clearly that you are making a citizen’s arrest and that you are holding them until police arrive. You have to ring 111 straight away and do what the officers on the phone tell you. Force should be avoided, and where it cannot be avoided it must be necessary, proportionate and kept to the minimum. You are told not to question the person and not to search them, and to expect to give police a statement afterwards.
The guidance is blunt about when to stay out of it. Police say people should not intervene if doing so may put them or others in harm’s way, and that it is worth considering whether the person may be carrying a hidden weapon. In most situations, the advice runs, the safest course is to call 111, watch what is happening and let police respond.
Anyone who does step in takes on responsibility for the detained person’s welfare until police arrive. That covers their physical condition and their state of mind, and it includes never applying pressure to the neck or head. The police material also draws a distinction that matters in court. Section 35 gives a full justification where a person is found actually committing an offence, while sections 36 to 38 offer narrower cover, protecting someone from criminal liability but not from being sued.
Writing for The Conversation and republished on Scoop on 11 August, Auckland University of Technology law professor Kris Gledhill said the wider defence still has hard edges that will catch people out. It applies only where someone is found committing an offence, so a person who is chased down for something they did last week is not covered. It applies only to Crimes Act offences, and plenty of everyday wrongdoing sits in other statutes with different rules. Reasonable suspicion is not enough, because an offence has to have actually been committed.
Age and capacity complicate it further. A child under 10 cannot commit an offence at all, and a child aged 10 to 13 can only be held responsible if they knew what they were doing was wrong. Someone who is mentally impaired may not be criminally culpable either. Gledhill noted that situations warranting an arrest are stressful enough without the person intervening having to work all of that out on the spot.
The consequences of misjudging it are not small. Detaining a person who turns out not to have committed an offence can amount to kidnapping, which carries up to 14 years in prison, and using force a court later decides was unreasonable is an assault. Gledhill also pointed out that police are trained in restraint and members of the public are not, which brings risks such as positional asphyxia when someone is held face down.
Retailers, who were the intended beneficiaries, spent the passage of the bill asking for it to be dropped. Retail NZ chief executive Carolyn Young said after the final reading that “retailers are deeply concerned about this new legislation, which will put their staff and customers at greater risk of harm”. Speaking to RNZ the following day, Young said the law “assumes that business owners and businesses are wanting to intervene physically and get involved with offenders” and that it was “actually putting retail staff in harm’s way and you have an obligation under the Health and Safety Act to ensure that your staff are safe”. Retail NZ has told members its advice is to avoid engaging violent offenders, use de escalation training and call police when it is safe to do so.
The New Zealand Police Association opposed the change too. In its submission on the bill in March, association president Steve Watt said the organisation “fails to see any merit in encouraging untrained civilians/retailers to engage in potentially dangerous situations traditionally handled by trained police officers”, and called the proposal a train wreck waiting to happen. Watt also warned that people who detain someone should not assume a fast response, saying police officers “will not have the luxury of just dropping tools to attend citizen’s arrests”. The association supported other parts of the bill, including tougher penalties for assaults on first responders.
Business NZ opposed the expansion at select committee as well. The government pressed on, with Goldsmith saying it was committed to fixing the basics in law and order and that meant ensuring retailers are effectively protected.
For most people the practical effect is narrower than the headlines suggest. The powers are wider, but the safest response to watching a theft is unchanged, which is to record what you can, keep your distance and ring 111. If you do end up detained by someone else, or by police, our guide to your rights when you are arrested in New Zealand sets out what has to happen next.
Have you had to deal with theft or aggression at work, and would you use the new powers? Tell us what you think in the comments below.
This article was written by AI, briefed to report the facts, hopefully without some of the bias people bring to the job 🙂
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