August 17, 2012Posted by on
A member of the public’s right to emulate the powers of arrest exercised by a law enforcement officer are a ‘far cry‘ from a ‘hue-and-cry‘. Anyone participating in a hue-and-cry had the right to arrest a criminal, whom, if they violently resist arrest might be killed with impunity, but not otherwise – lynchings were very rare, and even wounding or killing a criminal to hinder flight was unlawful. In this context it’s hard to imagine the need for modern law enforcement that Henry Fielding foresaw when he inaugurated the Bow Street Runners . Yet, as he hypothesized in An Enquiry Into the Causes of the Late Increase of Robbers:
There were too many people coming to London expecting an easy life, that corruption in government was endemic, that people were choosing crime rather than hard work, and that only 6 out of 10 constables were worth keeping on.
The Bow Street Runners were a precursor to the formation of today’s law enforcement officers and the formalizing of the right to arrest and detain a criminal by a member of the public. However, while the powers of formal arrest eventually given to these new law enforcers extended to misdemeanour and felony, a member of the public was not afforded such powers. A citizen’s arrest was limited to felonious acts only. Something a Mr Smith found out having seized and, with force, detained a miscreant ripping the tyres of a stationary motor-car. Following the formal arrest by a policeman, the malefactor was duly prosecuted and punished for his offence; but he issued a counter-summons against Mr. Smith for assault, upon which Mr. Smith was convicted. Mr. Smith, unhappy at being convicted for carrying out what he saw as his duty, appealed against the conviction.
In opening the appeal in the 1933 case of Rex v Smith, The Lord Chief Justiceremarked: “I am sorry to have to say that the magistrate was right and that Mr. Smith was properly convicted. Mr. Smith may well be surprised, for the citizen is frequently informed that it is the duty of all able-bodied persons to assist the officers of the law to the utmost of their powers in the prevention of crime and, in certain circumstances, the apprehension of the criminal. Unfortunately the important words in the sentence last spoken are the words, ‘in certain circumstances’, and they are the snare into which the gallant Mr. Smith has fallen. Mr Smith’s conviction rests upon the ancient but now, in substance, meaningless distinction between felony and misdemeanour which ought to be abolished”.
Continuing, The Lord Chief Justice said: “All indictable offences are either felonies or misdemeanours. A felony, at Common Law, was a crime so strongly deprecated by the State that, apart from any other punishment, it involved the forfeiture of the offender’s property. Lesser crimes were known as Misdemeanours and these did not inevitably carry forfeiture. Originally all felonies (except petty larceny) were punished with death, but no misdemeanours. Felonies, to particularize, include murder, suicide, manslaughter, burglary, housebreaking, embezzlement, larceny, and bigamy; while some of the better-known misdemeanours are perjury, conspiracy, fraud, libel, false pretences, riot, and assault.
It cannot even be said that all felonies are more repellent crimes than all misdemeanours; for it is a felony to steal a penny, but only a misdemeanour to defraud a man of a million pounds. Most of us would think that perjury, conspiracy, and criminal libel were offences at least as dangerous and detestable as a mild burglary or inadvertent act of bigamy. But the former are misdemeanours only and the latter felonies. Embezzlement is a felony but fraud a misdemeanour. To carry off a young woman is sometimes one and sometimes the other.
To slash the tyres of a stationary motor-car is not a felony but a misdemeanour; at law, therefore, Mr. Smith was not entitled to seize the body of the miscreant. His proper course was to stand at a reasonable distance and deliver a moral address upon the iniquity of malicious damage. He might, I think, have added a warning that if the miscreant was not careful he would tell his mother; but even this might have made Mr. Smith liable to a summons for using abusive or threatening language. I would add, for the general guidance of citizens like Mr. Smith who go about seeking to protect the lives and property of their fellow-citizens, the following rule of conduct: ‘Ignorance of the law excuses no man and, though there are vast areas of the law with which I am not familiar, the citizen is expected to know it all”.
The The Lord Chief Justice’s following and abridged remarks regarding citizen’s arrest, as made in 1933, are as relevant today as they were at the time.
On perceiving another citizen engaged in what appears to be an unlawful act, they should not lay hands upon him until they have assured themselves that the circumstances are such as to justify them in making an arrest. If after this precaution they are still in doubt as to the precise nature of the offence, the only proper course is to invite the assistance of the miscreant, who, ex hypothesi, should know better than any other citizen what class of offence he is committing.
Although the distinction between a felony and a misdemeanour has now been abolished, a citizen’s arrest may only be exercised for indictable offences only and excludes Summary Offences. The distinction between such offences being – ex hypothesi – the responsibility of the arrester and not just the arrestee. Members of the public should be mindful that the snare into which Mr Smith had fallen is also extant, albeit the requirement is now that of distinguishing between indictable and summary offences.
Some useful and cautionary advice on making a citizen’s arrest, recently appeared in The Guardian:
On a practical level, it is usually best to avoid getting involved as this story and this story show. If you do intervene, do so carefully, respectfully, and with, at most, a reasonable and proportionate use of force — only having first checked that there is no possibility of a police officer doing the job for you. Always call the police, and make sure that anyone you have arrested is transferred to the police as soon as possible (sic).
Even here there is some difficulty, primarily that of being able to contact the police though any communication medium and, if successful, of the police despatching an arresting officer before you are hospitalised. Nevertheless; with most people carrying some kind of messaging and data storage device on their person, modern communications and policing does offer the public minded citizen with some means of rendering a public service. The following could be the form in which a member of the public raises a hue-and-cry:
- Downloaded and store the data on indictable offences to your android, iPod, kindle etc. and make sure you have it with you.
- When you see an offence being committed – from a discreet distance – consult you mobile device and confirm that it is an indictable one.
- Using a suitable mobile device, take a picture/video of the offence being committed and send it to a remote and secure storage (e.g. iCloud)- DO NOT ATTEMPT A CITIZEN’S ARREST YET.
- When they are appointed (November 2012) send your Police and Crime Commissioner (PCC) a text message (ensuring that ‘location’ is active on your mobile device) indicating what you are about to do – including the indictable offence you believe is being perpetrated – and requesting confirmation of the action you are about to take, and the ETA of a police-constable (PC).
- Confirm your proposed action by tweeting the PCC and also by leaving a message on their Facebook page (you could also consider posting your picture/video here).
- Wait for a response and advice from the PCC confirming your action – DO NOT ACT WITHOUT A CONFIRMED ETA FOR THE PC.
- If you feel ‘absolutely’ compelled to take immediate action – SECRETE ANY VALUABLES AND YOUR MOBILE DEVICE .
- Politely ascertain that the suspect(s) is/are aware that an indictable offence is being committed and seek their concurrence. They may respond impolitely, even deny that any indictable offence is being undertaken (desist from exacerbating the situation by pointing out that an awareness of the indictable offence, if not before, is now ex hypothesi) – DO NOT BECOME EMBROILED IN A VERBAL ALTERCATION.
- Politely let it be known that you intend to perform a citizen’s arrest for the aforesaid indictable offence and that they are to remain where they are and await the arrival of a police-constable. At which point there may appear some signs of aggression (if this has not already occurred) – DO NOT BECOME EMBROILED IN A PHYSICAL ALTERCATION BY ATTEMPTING TO RESTRAIN THE SUSPECT(s).
- If you feel that the situation is beyond your control extricate yourself and, if required, call for an ambulance before repeating steps 4 & 5 with a SNAFU message.