To Catch a Thief

The complexities of undertaking a citizen's arrest in England and Wales

This article looks at the complexities of undertaking a citizen’s arrest in England and Wales including an insight into how these powers can be used and in what circumstances.

Furthermore, we will discuss the level of force that could be used to detain an individual and the wider context in order to keep you safe and prevent you from becoming legally accountable if a citizen's arrest goes wrong.

My Friend Phil and the TV Episode

I was playing football recently (with other people, like me, of a certain age!) and managed to get to the end of our session remarkably free of injuries. On returning back to the car I was approached by a friend, Phil, with whom I have played 5-a-side with over a number of years. A really sanguine guy, Phil would be classed as un-opinionated and to be fair would take a lot for him to be angry or emotional.

Phil recounted that he had watched a repeat of a documentary on TV a few days prior (24 Hours in Custody – Channel 4, 2022) which focused on a householder, Adam White, who disturbed two males trying to break into his house late at night. Having seen someone attempting to commit an offence Mr White immediately followed the burglars in his car. They had made off on a motor bike (later identified as stolen). This led to a short high-speed pursuit in a built up housing estate which led to the males on the bike crashing and sustaining serious injuries.

Mr White was arrested at the scene, later charged with grievous bodily harm (serious assault) and was later convicted at court where he received a 22-month prison sentence. The judge stated that Mr White should not have taken the law into his own hands by chasing down the burglars in the manner he did. Separately, the two males, Taylor Benford and Ryan Paul, were also charged in relation to the attempted burglary and, having pleaded guilty, received community service and a suspended sentence.

Both males had a significant slew of previous convictions. but the trial judge stated that due to their injuries a prison sentence would have been too punitive for them. Due to the trauma and fallout from the episode, Mr and Mrs White decided to terminate her pregnancy and were forced to leave their home due to debt. Since release from prison, Mr White has struggled to find work in his trade as an electrician. Mrs White has suffered episodes of fear because of the intrusion.

Anyway – back to my friend, Phil. He was hopping mad in relation to this perceived injustice for the Whites and wanted my opinion as an ex-police inspector regarding this matter. Other team pals had also gathered at this point as they could see the intensity in Phil’s eyes.

The Initial Discussion

I think anyone who has served in the public sector (most typically within the criminal justice system or the NHS) will have experienced scenarios like this where they are put on the spot regarding their opinion on some significant incident. Sometimes this can be at a party, a family meal or generally out and about with friends. It can be challenging because your own personal views are held in the spotlight, along with the fact you will have added knowledge of procedure, the law (in this case) and a whole area of other factors which may come into play. To try and reduce all these aspects into a response that would satisfy Phil at that point would have been nigh impossible. At some level you feel that you become an apologist for the police, policing standards and the criminal justice service as a whole.

I took the position that I had not seen the programme at that time (which was true - though I have since seen it) and I added that this seemed to be a terrible incident with awful consequences for Mr and Mrs White. Phil then dropped a key question onto my lap – “why would anyone tackle a burglar these days if this is what happens?” I was not sure if this was a rhetorical question from Phil but it certainly deserves a much better answer than some platitudes I could provide to Phil there and then.

So, this remains a key question and one that I regularly pose to UK police officers recruits in class. If a member of the public disturbs a burglar at (or heaven forbid - inside) their house, what powers do they have as citizen in England and Wales to detain that person? Furthermore, if that person escapes from the scene where do they stand from a legal perspective in terms of pursuing that person? How far can this pursuit last and what do we mean by a citizen’s arrest if they hope to detain them?

Framing the Debate on Citizen's Arrest in England & Wales

When these questions are posed to trainee police officers, the myriad of different responses is staggering – and these are young men and women who have a vested interest in this arena! Some have stated that the public have no powers to detain someone breaking into their house. They are uncertain what force can be used by a member of the public to detain a person or for how long. I am quite sure that this confusion exists in the wider population too. I undertook a (very unscientific) poll of family and friends and once again confusion reigned. This was worrying to me but not wholly unexpected.

Disconcertingly, if we, as members of the public, are ignorant regarding our understanding of what is lawful in situations like this then we are really handing an innate advantage to the criminal. In short, the burglar will be switched onto the general uncertainty from the householder which means they will back off rather than confront an intruder. This will be particularly prescient when you hear a noise downstairs at 3:00 am, and half asleep, make that decision whether to confront an intruder or not. With this in mind, the following section outlines the current situation in law in circumstances of this nature and we'll also explore some case law for England and Wales in terms of how this is actually determined. As in the case of the Whites, if your decision processes led to an outcome where you are gripping the dock in court can you defend your position?

The CPS and National Police Chiefs Council (NPCC) published a joint public statement on the use of force in these circumstance entitled ‘Householders and the use of force against intruders’ (2018). This makes it clear that if householders have done what they honestly and instinctively think is necessary in the heat of the moment, this will be the strongest evidence for them having acted lawfully and in self-defence

It is important to remember, particularly in the 3:00 am scenario where someone is disturbed from their sleep, the decision-making factors that can influence any action. These can be determined by the fact you have been disturbed from your reverie, you are probably disoriented and tired, your adrenaline is now surging due to the noises downstairs and your general concern for the safety of yourself and your loved ones will be extremely heightened. These are not minor issues for consideration because they could impact upon a situation where you overreact and potentially place yourself in a much more compromising scenario.

The Law Relating to Citizen's Arrest in England & Wales

So, firstly what is the position in relation to the concept of a citizen’s arrest in England and Wales and what does it mean in practice?

If we refer to Blackstones, (2023) The whole aspect of a so-called citizen’s arrest is enshrined under the powers of section 24A of the Police and Criminal Evidence Act 1984 (PACE). These powers for a regular citizen are much less than that which is available to a police officer. This means that citizens have the authority to detain someone who they reasonably believe has committed an indictable offence, or is about to commit one, until the arrival of the police.

To make a citizen's arrest, the following conditions generally apply (Click arrow to expand):

The arrest must be necessary to prevent someone in the act of committing an indictable offence, or to apprehend someone who has committed an indictable offence
The person making the arrest must have reasonable grounds to believe that the individual being detained has committed the indictable offence
The arrest must be carried out promptly after the alleged offence and where it is clearly not reasonable for a constable to be able to undertake the arrest themselves.
The person making the arrest should use only reasonable and proportionate force to detain the individual until the police arrive.

In terms of necessity the arresting person has to also show one of the following reasons for the arrest (Click arrow to expand):

Causing injury to himself or any other person
Suffering physical injury
Causing loss of or damage to property
Making off before constable can assume responsibility for him

So that is the cold hard legislative take on a citizen's arrest but what does this actually mean in practice? Most people for instance are not familiar with the term “indictable offence” so let's try and explain what that term actually means. An indictable offence is one where can potentially be tried at Crown Court so tends to relate to more serious offences of burglary from a dwelling, organised theft, robbery and violent criminality, serious (typically supply) drugs offences and human trafficking. What this also means is that there is not a citizen's power of arrest for most traffic related incidents such as speeding or minor cases of road rage.

In the circumstances of a burglary at your house, for instance, this meets the criteria of an indictable offence as burglaries in a dwelling tend to be dealt with at Crown Court. In the “act of committing” an offence could include someone trying your doors or windows to try and enter into to your property. If you saw this directly or on your CCTV system, you could undertake a citizen’s arrest on the basis that this could be loss or damage to your property and if disturbed, most burglars would make off before the police could detain them. You may also be afraid that if somebody actually enters your property they could cause a physical threat to you or your family. At this stage you don't know if the burglar is armed with a weapon of offence or could pick up something to be used as a weapon if they were disturbed.

The question tends to arise whether how far you can chase a burglar away from your home particularly if they've actually stolen something?. You may have reasonable grounds to believe this to be the case because you may have seen them steal something and they are clearly running away from the scene. There is some case law in this issue and the wider aspect of how much force can be used and when (say, for instance, in the case of a burglary)

Let us address some queries by way of a question and answer session:

Q -If you confront someone engaged in committing an indictable offence do you have to wait until the offender hits you before you can retaliate?

A - No there is no rule in law to say that you have to wait until you are struck before you seek to defend yourself. This may include undertaking a pre-emptive strike to immobilise the offender (see R v Deana, 2 Cr App R 75)

Q -If you have to retreat if being confronted by someone engaged in committing an indictable offence. If you did not back away would this negate the position you were acting in self defence?

A - No there is no requirement to back away or retreat. In other words you are within your rights to stand your ground to defend yourself and/or others.

Q - How much force can be used to arrest an individual?

A - This is a really tricky question and deserves a full answer. In terms of encountering someone involved in committing an indictable offence you can use as much force is as reasonable in the circumstances for the purposes of self-defence, defence of another, defence of property, prevention of crime, or to make a lawful arrest. The two questions which are typically considered is whether the use of force was necessary in the circumstances (was there need for any force to be used at all?) and was the force used reasonable in the circumstances?

If, for instance, the person undertaking the citizen’s arrest having used force was later prosecuted the jury must ask themselves whether on the basis of the facts, a reasonable person would see the use of force as reasonable or excessive. The court is entitled to take account such issues as whether the offender was armed, was approaching the arresting person in an aggressive/intimidating way or the relative size between offender and arresting person.

Q - How far can you pursue someone who can committed an indictable offence?

A - There is no specific ruling here. It is a misconception for instance that any pursuit needs to stop at the curtilage of your house. In other words, the notion that if the burglar leaves your house boundary then you have to halt your chase is not the case. What will be more relevant is in the context of a pursuit and the detaining of an individual, for instance, was that any evidence of a degree of excessive force used, particularly if it leads to death or serious injury. Furthermore, it will be taken into account regarding the way force was applied and whether a weapon was used in the application of this force.

In Summary

Finally, tackling anyone in the context of a citizen's arrest is a significant deal. Your adrenaline will be surging, there will be an element of fear for your safety and that of others and there is also no certainty that you will achieve your aim in terms of detaining this person. What if this person is armed? Are they high on drugs or alcohol? Do they have an accomplice?

We have heard many recent tales in England and Wales of how long the police may take to arrive, even for a priority 1 response and this creates extra tension in terms of feeling vulnerable and potentially isolated with your detained person. if you live in a semi-rural area it could be many minutes before you get blue light assistance. You also need to consider who can contact police on your behalf and be able to direct them to your location if you cant do it. it is therefore to remember all the points discussed above and also rehearse some scenarios either internally or with your loved ones. You cant account for every scenario but developing your mental route map may be vital in making split second decisions in future.

Eyes on Crime are clear advocates of crime prevention so identifying the opportunities to target harden yourself and loved ones from becoming potential victims/complainants is a priority and may help such situations becoming a rarity.

We would advise in the case of householders and the use of force against intruders that you take the opportunity to read this document

Ken Kirwan: Editor: Eyes on Crime

To Catch a Thief

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