Kris
Gledhill, Auckland
University of Technology
It has a
dull title – the Crimes
Amendment Act 2026 – but one aspect of its provisions
has had plenty
of publicity: the expanded right to make “citizen’s
arrests”.
Aimed
primarily at giving retail staff greater powers to
combat petty crime, and security guards more power to hold
people, the amendments raise an important question: what are
the risks if people misunderstand or misuse these new
powers?
In fact, “citizens” do not really have
powers of arrest – unless they are asked by a police
officer to help arrest someone committing (or suspected of
having committed) an imprisonable offence or disturbing the
peace.
This is covered under section 315 of the Crimes
Act 1961. What has changed is the defence available to
someone detaining or using force against someone else, which
might otherwise be a criminal offence in its own right.
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The main change is to section 35 of the Crimes
Act. Previously, it provided a defence in limited
circumstances: at night (defined as between 9pm and 6am) if
someone was committing an offence against the Crimes Act;
and during the day only if the offence carried three
years’ imprisonment or more.
In reality, most
people don’t know which offences committed during the day
would qualify – and offences such as low-value theft and
common assault would not.
Complicating
factors
The new wording provides a defence
whatever the time of day and whatever the maximum sentence
for the offence. But three complexities
remain:
-
it only applies if the person
is “found committing” an offence – a past offence will
not do -
it only applies to offences under
the Crimes Act – driving offences, drugs offences or
offences against multiple other laws require you to know if
they have their own separate defences -
and “reasonable suspicion” is not
enough – if no offence is being committed, there is no
defence.
There are other potential
complications. For example, what if the alleged offender is
very young? If they’re under ten, the law says they cannot
commit an offence; under 14, they cannot commit an offence
if they don’t know their action is wrong or against the
law.
What if they are mentally impaired to the
extent they cannot stand trial and be convicted? All these
factors could lead to court cases to determine the correct
interpretation.
The Crimes Amendment Act 2026 also
adds an obligation to section 35 and various other limited
defences in the Crimes Act, requiring the arresting person
to contact the police “as soon as practicable” and to
follow their directions. If not, the protection of the
defence is lost.
What about using
force?
The use of force is regulated separately by
section 39 of the Crimes Act. It allows “such force as may
be necessary to overcome any” resistance.
That
means unnecessary force is illegal. Importantly, this is not
what the person using the force thinks is necessary
– it means what is objectively necessary.
The law prevents this defence if “reasonable
means in a less violent manner” could be used. And it
forbids force intended or likely to cause death or serious
bodily harm, unless the police call on you to
assist.
This has been changed to specify that the
force used can include “physical or mechanical
restraints”. But the limitation of force being necessary
remains.
Of course, something necessary in the heat
of the moment may become unnecessary once people are calm.
We can expect to see future legal cases about whether a
continued use of restraint was necessary.
There has
also been a change to defences relating to property, such as
in a shoplifting situation.
Section 52 of the
Crimes Act allows “reasonable force” to be used to stop
the theft or recover the property. Previously, it expressly
prevented striking or causing bodily harm. A grapple was
fine, but not a punch.
It has been amended to
remove the prohibition on striking or doing bodily harm –
but it still has to be reasonable force. So a punch (or
more) will still be unlawful if not found
reasonable.
A legal can of worms
What if
the person detaining or using force against someone steps
outside the limits of these defences?
Detaining
someone unlawfully and without consent, intending to confine
them, is kidnapping. That carries up to 14 years’
imprisonment.
Unlawful use of force starts as
common assault, which under the Crimes Act carries a
one-year sentence. There are more serious offences if the
force causes an injury or serious harm.
Finally, we
need to remember these amendments cut both ways: a person
who is wrongly detained or has improper force used against
them can also rely on the expanded provisions to try to
arrest the person who has challenged them.
They
may also try to claim self-defence, which allows reasonable
force against a perceived assault. If everyone believes the
law is on their side, the result could be escalating
consequences.
There is a more fundamental problem
here. Police officers have training in methods of restraint,
partly because some actions can be very dangerous. For
example, positional
asphyxia can kill people who cannot breathe properly,
and some people are more susceptible to it.
Situations that warrant a citizen’s arrest or
the use of force will generally be stressful enough. It’s
debatable whether a potential legal can of worms improves
matters.
Kris
Gledhill, Professor of Law, Auckland
University of Technology
This
article is republished from The Conversation
under a Creative Commons license. Read the original
article.
