Security Guards

[kave]

I know it goes against everything Kiwibiker stands for, but here are some facts.

The Crimes Act 1961, s(35) states that everyone is justified in arresting without a warrant when you find:

(a) Any person you find commiting an offense against the act where the maximum penalty is no less than three (3) years.

or

(b)Any person you find by night committing any offense against the Act.
(night refers to the time between 2100 and 0600)

Also During Night Hours

s(36) Arrest of Person Believed to be Committing Crime by Night
Every one is protected from criminal responsibility for arresting without warrant any person whom he finds by night in circumstances affording reasonable and probable grounds for believing that that person is committing an offence against this Act.

and

During Daylight Hours

s(42) Preventing breach of the peace
(1) Every one who witnesses a breach of the peace is justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to give him into the custody of a constable:
Provided that the person interfering shall use no more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal.

All this information can be found here
http://www.acornconsulting.co.nz/sen...tch10aug08.pdf

In other words, if you see someone commiting a serious crime during the day, or any crime at night you can arrest them. If it turns out that no crime was actually comitted but you had good reason to believe one had been, then you are protected from prosecution by s(36).

Of course most reputable security guards will hang back and get in touch with the police if at all possible. Once police have requested that you detain someone then legally everything becomes even easier.

[p.dath]

I am familiarwith the powers of arrest you cite. However as I said, they do not give you the power to detain someone you arrest, and certainly not by force.

[Usarka]

I don't know about security gaurds, but bouncers have the right to smash you bro.

[p.dath]

Haha. There have been so many bouncers charged and convicted of common assault it is funny anymore.

[Ixion]

Out of interest - are you guys aware of the citizens arrest criteria?

There is always a lot of inuendo about it but not many people actually know the real answer. I'll get it if anyones interested, Ive got summary of it at work which I could throw in this thread later...

Given the (usual) amount of F.U.D. being generated,here that might be a very good idea.

Thank you

[kave]

I am familiarwith the powers of arrest you cite. However as I said, they do not give you the power to detain someone you arrest, and certainly not by force.

Arresting someone is detaining them by legal authority. That is what arresting means. Saying that you do not have the power to detain someone you arrest is the same as saying that "you do not have the power to detain someone that you detain", it is nonsensical.

The use of force is covered under s(39) which states:

Force used in executing process or in arrest

Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:

provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

In other words, as long as force is required to detain someone that you have arrested you may use it. You may not use excessive amounts though and you must not use force with is intended or likely to cause death or grievous bodily harm.

[SMOKEU]

I've heard on my scanner many times before "shoplifter being held by security at xxxxxxxxx supermarket, he/she is getting quite agitated etc" the courts don't give a fuck about store staff and/or security guards physically restraining a thief if need be, provided excessive force is not used.

[p.dath]

Arresting someone is detaining them by legal authority. That is what arresting means. Saying that you do not have the power to detain someone you arrest is the same as saying that "you do not have the power to detain someone that you detain", it is nonsensical.

The use of force is covered under s(39) which states:

Force used in executing process or in arrest

Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:

provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

In other words, as long as force is required to detain someone that you have arrested you may use it. You may not use excessive amounts though and you must not use force with is intended or likely to cause death or grievous bodily harm.

The key bit here is "any sentence, warrant, or process,". A civilian performing an arrest is not executing a sentence, warrant or process. So s(39) does not apply.

[Mully]

The key bit here is "any sentence, warrant, or process,". A civilian performing an arrest is not executing a sentence, warrant or process. So s(39) does not apply.

But it also says:

or in making or assisting to make any arrest

(emphasis mine)

So that should mean that s(39) does apply, correct?

I'm not trying to stir, I'm just curious about what the legal situation actually is.

[kave]

The key bit here is "any sentence, warrant, or process,". A civilian performing an arrest is not executing a sentence, warrant or process. So s(39) does not apply.

or in making or assisting to make any arrest

Read the whole thing. Dear lord, it's not actually particularly complicated.

[kave]

But it also says:

(emphasis mine)

So that should mean that s(39) does apply, correct?

I'm not trying to stir, I'm just curious about what the legal situation actually is.

Correct, s(39) does apply because you are making an arrest.

[sAsLEX]

Only patched up coppers can arrest or detain is my understanding.

Wrong. I can, and so can many like me, not being civilian has its perks....

[p.dath]

Lets pull together several bits.

Section 35 only allows arrest without a warrant (pretty much a citizens arrest) if the person is in breach of the Cimes Act 1961, and then only if the maximum setence for that crime exceeds three years.
Further at the point of the rest you have to be able to cite the charge you are laying, and comply with the criteria for said arrest.

Section 223 gives the penalties for theft. If under $500 its a maximum imprisonment of 3 months. If it is $500 and $1000 the maximum imprisonment is 1 year.

So in the supermarket case, it is highly likely they could not legally arrest someone. As a consequence, section 39 can not be applied.
However section 209, kidnapping (due to false imprisonment), does apply, and is a serious crime with a serious jail sentence.
Further, if the person is a child (under 16) then the provisions of section 209A apply.

So if you plan to arrest someone and detain then then you had be better be very sure of the section of the act that applies so you can quote it and the sentence for that act so you can certain your arrest is legal.


All in all, citizens arrest followed by detention in an enclosed room with no path of escape that is controlled by force is highly dangerous.

[p.dath]

I should also point out that if you do get it wrong, apart from facing criminal proceedings, you can also gave civil proceedings.

That means you can be personally sued.

[YellowDog]

At the end of the day the store guard security is actually assisting the Police in a way they could not otherwise achieve. To hold some with video evidece of the crime to ensure a safe conviction is something that is not in their interests to stop.

You state that the criminal has rights however these rights only come into force if anyone actually listens to them. The incentives to plead guilty and end the ordeal by far outweigh any potential for redress.

The police are unlikely to want to cut off the hand that feeds them.