A Citizen’s Arrest
September 21, 2013Posted by on
The powers of arrest now exercised by law enforcement officers are not available to members of the public wishing to carry out a citizen’s arrest, which is now a ‘far cry‘ from a ‘hue-and-cry‘. Anyone participating in a ‘hue-and-cry’ had the right to carry a weapon and to arrest a criminal, whom – should they violently resist – 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 support of his newly formed Bow Street Runners, in 1751 Henry Fielding wrote An Enquiry Into the Causes of the Late Increase of Robbers writing that:
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.
plus ça change, plus c’est la même chose — An epigram by Jean-Baptiste Alphonse Karr in the January 1849 issue of his journal Les Guêpes (“The Wasps”). Literally “The more it changes, the more it’s the same thing.” Aasof
Since that time, law enforcement officers have been given increasing powers of arrest for an ever increasing number of offences, while those afforded a citizen have been curtailed. A legal guide to citizen’s arrest (The Guardian) advises against getting involved. Hue and cry was dead and buried a long time ago, as the following excerpts from Rex v Smith case show.
In 1933 Mr Smith seized with force, and detained, a miscreant ripping the tyres off a stationary motor-car. Following the formal arrest by a policeman, the malefactor was prosecuted and punished for his offence; but he issued a counter-summons for assault against Mr. Smith who, on being convicted for carrying out what he saw as his duty, appealed against the conviction.
In opening Mr Smith’s appeal, The Lord Chief Justice stated:
“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”.
The Lord Chief Justice then continued:
“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 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”.
The Lord Chief Justice concluded:
“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”.
Adding: “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.
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 should know better than any other citizen what class of offence he is committing”.