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, such as shoplifting. But you need to know your rights and responsibilities.
Bear in mind that the police do not advise that a citizen’s arrest is made except in extreme circumstances.
Here are 10 key steps for business owners to minimise risk should the need arise to carry out a citizen's arrest:
1. Did you see them 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, not the day after or a few days later.
2. You should confront the shoplifter, show your identification and explain that you wish to talk to them about items they may have taken from the store.
3. 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.
4. Balance the risks. You should consider whether the shoplifter poses a danger to customers or employees in the store.
If an employee is injured while carrying out a citizen’s arrest, they may have a civil claim for damages against the shop owner, particularly if they have not received adequate security training.
5. 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 reasonable force to you may not be what the courts deem to be reasonable.
6. You should advise the shoplifter that the police are being called and call the police immediately. The person making the arrest must present the shoplifter to the police as soon as possible so they can be dealt with according to the law.
7. 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 their property. If a search of their person is conducted against their wishes, you could find yourself charged with assault.
8. Do not leave the shoplifter unattended, as this may give them an opportunity to dispose of any stolen items before the police arrive.
9. 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.
10. 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.
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.
Candice Fraser is a senior paralegal in the dispute resolution team at Colin Biggers & Paisley.