Legal Beagle by Graeme Edgeler


On citizen’s arrests; or yet another law change I missed when Parliament created the Criminal Procedure Act

There’s another news story about a citizen’s arrest of a tourist driver.

I got asked about citizen's arrests on Twitter, and thought people who don’t follow me on Twitter might also be interested in the answer.

Citizens' arrests do exist, and are lawful, but they’re limited, and they’ve become more limited recently. Police and the Courts don’t seem to be big fans. The Court of Appeal has noted that there isn’t a “power” of citizen’s arrest, but recognises (as I suppose they must) that the Crimes Act provides immunities for citizen’s arrests in certain circumstances. They have also been clear that the Crimes Act is it – whatever common law right of arrest citizens might have had in the past is gone – if your citizen’s arrest falls within the few sections of the Crimes Act covering arrests, it’s “justified”. If it doesn’t, you’re likely breaking the law.

Judges, like the Police, like to caution people not to “take the law into their own hands”, but the law, at least was written in a time when there was still some inkling that “Constables were neighbours doing full-time what every decent citizen could and would do when necessary,” and arrests aren’t supposed to be punishments, just a process by which people are brought before the Courts to have the law take its course.

But a few years back, that changed, and I’m not sure anyone noticed. I didn’t, and probably should have, so this is another mea culpa like the one I ran here, on an unnoticed change to the law of burglary.

The law used to recognise lawful citizens' arrests where you found a crime being committed at night, or where, during the day, you found someone committing an offence for which the maximum penalty is 3 years, or more.

But that was when the law recognised a subset of offences that were officially classed as “crimes” (as distinct from less serious “summary offences”). And the law no longer does that. As with the change to burglary (which used to be unlawful entry with intent to commit a crime), when we abolished the distinction between crimes and summary offences, we had to amend law around when citizens' arrests were lawful.

And we did that by drastically limiting them.

Where previously, a citizen’s arrest could be for any “crime” (if at night), or any crime with a maximum penalty of at least three years (if during the day), the law was changed to only cover offences against the Crimes Act. Now, that is most of the big ones, but it’s far from all serious crime.

And that means that offences against the Land Transport Act aren’t covered. So a news story about a citizen's arrest for dangerous driving (an offence with a maximum penalty of three month's imprisonment) is really a story about the possible kidnapping of a tourist.

It also means that offences against the International Crimes and International Criminal Court Act aren’t covered either, so probably don’t try to arrest Bush or Blair, or Obama if they visit any time soon.

But citizens' arrests are still a thing in New Zealand, a legislative remnant from a time when the law and concepts of community had a different meaning than the government might now wish. The law welcomes them, The Law may not. And despite what the name may lead you to think, in New Zealand at least, the immunity for conducting arrests is not limited to citizens.

So, if you’re not a police office, please don’t forcibly take someone’s car keys from them. Unless, you’re a Māori Warden, of course, and the driver is Māori, or is in the vicinity of a gathering of Māori  Then you can go right ahead.

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