Citizens Arrest: What it is, what it’s becoming and what it means for our local community

Citizen’s Arrest – We’ve all heard of it, but for many of us, it’s something we haven’t given much thought. To be honest, if you asked me last month, I wouldn’t have been able to tell you if it was real, made up for American movies, or just an old-fashioned practice lost to history. 

But recently, it started turning up in the news and I started paying attention. I learned that citizen’s arrest is very real, legal in New Zealand and about to change in some important ways. 

The Announcement

On Wednesday, Feb 26th, Justice Minister Paul Goldsmith announced upcoming changes to citizen’s arrest regulations, in response to the rising rates of retail crime. 

He said that in the next few months, the government will be introducing legislation to amend the Crimes Act (which governs laws and their enforcement). The amendments will grant all citizens a greater ability to arrest and detain suspected thieves, empowering business owners to defend their property without fear of legal liability. The minister said he believed the expanded citizen’s arrest powers would deter criminals from committing retail crime.

Goldsmith is acting on advice from the Government’s $3.6 million advisory committee, headed by the chair of the Dairy and Business Owners Group, Sunny Kaushal. Kaushal and his organisation have brought forward internal police data indicating a retail crime surge under the National-led Government. The data show a 17% increase (8207 more offences) in the first five months of 2024 compared to the same period last year. 

The Justice Minister said in his statement:  

The economic cost of retail crime in New Zealand is in the billions, and retailers and security guards face abuse and assault that no New Zealander should be subjected to. These changes will ensure that people working in the retail sector are being effectively protected, are empowered to stop offending, and that offenders are caught and deterred from future offending.

Citizen’s Arrest Now

Currently under the New Zealand Crimes Act of 1961, anyone can make an arrest at night where there are reasonable grounds for believing a person is committing a crime. A citizen’s arrest can be carried out during the day for an adult suspected of committing a crime punishable by more than three years imprisonment.

What this means in terms of retail crime is that during the day, a citizen’s arrest can only be made if the goods stolen have a value of $300 or more. At night, which in the law is defined as 9 pm – 6 am, a citizen’s arrest can be made for goods of any value. 

In theory, any member of the public can restrain a suspected thief until police arrive, but in practice, it’s mostly security guards performing citizen’s arrest and very few suspects are forcibly restrained. A common scenario is a security guard verbally instructing the offender to wait for the police. 

For Raj Patel, the owner of several local businesses, the current citizen’s arrest law doesn’t go far enough to prevent crime or protect shopkeepers. He’s watched the rise of retail crime from the frontlines, his vape shop and dairy are constant targets for theft. Two years ago he was the victim of a ram-raid which caused $25,000 in damage. Things have gotten so bad, Raj won’t bring his young daughter to the shops in fear for her safety. 

He has pursued justice through the courts and found that process unsatisfying. He would like to take a more active role in protecting his property, but uncertainty about the current law has held him back. He explained it to me with this hypothetical example: 

“If you make a citizens arrest, and use force, causing, let’s say a broken finger… are you then held accountable? Nobody knows.”

Raj plans to exercise his expanded rights to detain suspects, saying: 

“Before we could not detain someone, but now, if there are three of us in the shop, we have no hesitation. We will overpower that person. There will be repercussions, there will be an impact.”

He is doubtful that the new rules will deter would-be thieves, but he thinks it will help him retrieve stolen goods and is hopeful the changes will provide more clarity and protection for shop owners. 

Changes To The Law

The changes are meant to enable shop owners and security guards, giving them the power to arrest and hold a suspected thief, without the risk of being criminally charged for using force. 

Proposed changes to citizen’s arrest include: 

The Value And Time of Day

The proposed changes mean any person could intervene and detain a suspected offender at any time of the day, regardless of the severity of the crime and for goods of any amount. 

The Use of Force And Restraint

The changes are meant to clarify that “reasonable” force and restraints can be used when making an arrest. On what reasonable force would look like, there is no guidance as of yet, but the Justice Minister described it as the minimum force required to stop someone from moving or leaving. 

He added that it would be made clear later what level of “reasonable force” could be used, saying:

 “Not necessarily a headlock, it’s just holding someone steady.” he said, adding,  “We’re not talking about people using weapons.”

Age*

The new guidelines would eliminate age restrictions on citizen’s arrest. It’s not entirely clear what the previous rules were around youth suspects, but it’s understood that the changes will allow for wider citizen enforcement of young people suspected of shoplifting. 

Despite young people’s protections in the justice system, and the complexities around youth offending, the ministers feel the new rules will act as a deterrent to shoplifting among young people. 

*The age of criminal responsibility in New Zealand is 10 years, so a child under 10 cannot be arrested and charged with an offence. 

Can anyone make a citizen’s arrest?

According to the law, yes – but just because you can doesn’t mean you should. There’s the danger of making a mistake about what the person did and whether it was a crime. And there’s the danger of getting hurt. Most citizens aren’t trained or equipped to arrest someone safely. In practice, it’s typically senior shop staff or security guards who carry out a citizen’s arrest for shoplifting. 

Ian Huang, owner of Paper Power in Browns Bay, has given the matter a lot of thought. His shop has experienced an increase in theft since Covid, prompting him to invest in a $3,000 surveillance system. When it comes to help from the police, he expressed some frustration, saying: 

“I can sense that they want to tackle these crime issues, but they don’t seem to have the resources or solutions.”

In Ian’s opinion, more rights for retailers is a good thing. However, when it comes to his own business, he told me: 

Potential Problems 

Despite the support of the The Dairy and Business Owners’ Group, Members of Parliament and some local businesses, there are opposing views around the expansion of citizen’s arrest protection. For example, the Employers and Manufacturers Association and Retail NZ, local officials and others have expressed concern for the safety of both retailers and suspects. 

Real concerns exist about the potential use of excessive force by those carrying out citizen’s arrest for less serious offending. Remember, police and corrections officers go through significant training around the safe and reasonable use of force. Despite this, they don’t always get it right. The risk is even greater when citizens with no training are forcefully restraining other members of the public. 

While excessive force is not protected by the new laws, the encouragement of the use of force and physical restraint makes the use of such excessive force much more likely. Vigilante action can be ugly and may be excused or encouraged by a public unsympathetic to shoplifters.

Then there’s the issue of mistakes. Shopkeepers are only human after all – so what happens to someone held under a false citizen’s arrest? Under the new rules, an innocent person could potentially be held captive, tied-up or otherwise restrained for quite some time.