by Candice Fraser
Senior Paralegal @ Colin Biggers & Paisley
In brief – Retailers and their employees have a right to make a citizen’s arrest
f you are sure that you have seen someone shoplifting, you have the right to make a citizen’s arrest and use reasonable force to detain the shoplifter. However, bear in mind that the police advise that a citizen’s arrest not be made except in extreme circumstances.
Importance of minimising risk when making a citizen’s arrest
In Australia a member of the public, including a shop owner or employee, can make a “citizen’s arrest” if a person has just committed an offence or is in the process of committing an offence. Following these ten steps will ensure that you minimise your risks when making a citizen’s arrest.
- Make sure you see the person take the item. Courts have confirmed that a member of the public cannot detain someone on a suspicion. You must be satisfied that an offence has actually been committed. A citizen’s arrest must also be made at the time of the offence, it cannot be made the day after or a few days later.
- Confront the shoplifter. Introduce yourself to the shoplifter, show your identification and explain that you wish to talk to them about items they may have taken from the store.
- Ask the shoplifter to accompany you back to the store office. If you speak in a firm, confident and polite manner most shoplifters will cooperate.
- Balance the risks. You should consider whether the shoplifter poses a danger to any customer or employee in the store. You should note that if an employee is injured in the course of carrying out a citizen’s arrest, the employee may have a civil claim for damages against the shop owner, particularly if the employee has not received adequate security training.
- Use reasonable force to detain the shoplifter. If the shoplifter refuses to accompany you to the store office, you can tell the shoplifter why they are being detained and use reasonable force to detain the shoplifter. Reasonable force is any force that a reasonable person in your situation would use. However, what seems to be reasonable force to you may not be what the courts deem to be reasonable.
- Call the police. You should advise the shoplifter that the police are being called and call the police as soon as possible. The person making the arrest is under an obligation to present the shoplifter to the police as soon as possible so they can be dealt with according to the law.
- Ask the person to hand over stolen property. You should ask the shoplifter to hand over any property that does not belong to them. If the shoplifter refuses, you are not allowed to conduct a search of their person or any property they have in their possession. If a search of their person is conducted against their wishes, you could find yourself charged with assault.
- Do not leave the shoplifter unattended. Leaving the shoplifter unattended may give them an opportunity to dispose of any stolen items before the police arrive.
- Make notes about the incident. You may be required to give evidence about the incident in court, so you should make notes about what you saw, the time, what you did and what was said. The police will rely on your observations to determine whether there is enough evidence to arrest and charge the shoplifter.
- Release the shoplifter. You can release the shoplifter at any time. However, if the shoplifter is under 18 years of age, you should only release them into the care of the police, their parent or guardian.
Be careful to avoid assault charges and false imprisonment claims
If a citizen’s arrest is made, you must remember that you will owe a duty of care to the person you are detaining. If you use too much force, the shoplifter could bring charges of assault against you and you may be called to court to justify your actions. If an incident is investigated and the shoplifter is not charged, you could be at risk of a civil claim for damages for false imprisonment.<