Proposed citizen’s arrest laws for retail — calls for more detail

Calls for greater clarity have emerged about what new citizens arrest law reforms would look like in practice, including what constitutes “reasonable force” to detain offenders.

The Government announced yesterday it would give retailers and members of the public more power to detain shoplifters under legislative reforms.

Under existing laws, ordinary people could detain someone they found committing a Crimes Act offence at night between 9pm and 6am. The provision also applied to crimes where the maximum punishment was at least three years imprisonment.

The recommended changes included:

Retail NZ chief executive Carolyn Young said today that feedback from member businesses was that they did not want to physically engage with customers in store.

“What we know is, when people have chased after offenders in store, people have got hurt and they’ve died.”

Justice Minister Paul Goldsmith said the reforms were a recommendation from the Ministerial Advisory Group chaired by Sunny Kaushal which was set up in July last year.

“[Kaushal has] been talking to a range of people right across the retail sector. These proposals particularly have been something that the smaller dairy owners have been pushing for a long time,” Goldsmith said.

Asked who had been consulted, Kaushal said he had spoken with a variety of stakeholders and victims of crime.

"We have to take all those views on board, combine them with international practices, then that’s how we go with our independent advice to ministers."

Opinions would "obviously" differ on the proposed law changes between retailers, he said.

“Dairies and small businesses may not be able to employ security guards while supermarkets can, so the needs are different from sector to sector.”

A key point of contention with the new laws was the lack of clarity surrounding the use of “reasonable force” in detaining offenders.

University of Auckland law professor Mark Henegan said he wanted specifics about what reasonable force meant, emphasising it was not always as simple as putting someone in a headlock or grabbing them a certain way.

“It is a matter of what are they doing so you can use sufficient force to contain them, and that’s hard to measure,” he said.

Law enforcement acknowledged the challenge of what constituted reasonable force, with Police Association president Chris Cahill saying reasonable force was often difficult to implement.

“We have officers charged with assaults or excess force numerous times a year and it is a very hard thing to judge.”

He said determining this was a “two-pronged” approach in that you have to look at the circumstances faced by the person exercising the force as well as what a normal person might do.

“That can be very different for different people and can easily escalate from holding someone down to having to find someone to hold them down.”

Goldsmith, however, said reasonable force was a concept that had been considered by the courts many times.

“The average person could figure out holding somebody and stopping them from carrying away stolen goods was reasonable force and everybody has to deal with the situation they face or their circumstances.”