Citizens arrest changes unlikely to improve safety: ministry

Otago Daily Times

3 days ago

The government's proposed citizen's arrest changes are unlikely to have much impact on public safety, according to the justice ministry's analysis.
It says there are also risks people would be more likely to use unreasonable force, particularly on children who - being physically smaller - are easier to catch and restrain.
In February, the justice minister unveiled proposals for changing up the citizen's arrest regime, after a Ministerial Advisory Group (MAG) led by Sunny Kaushal came up with the recommendations.
The changes would remove an old limitation on making citizens arrests at certain hours of the day, and clarify other aspects of the law including that restraints and reasonable force could be used, and requiring people to call police and follow their instructions as soon as practicable.
They are set to be combined with a raft of changes to Crimes Act announced this week, including instant fines for shoplifters, higher penalties for assaulting first responders, and making a "coward punch" a specific offence.
The ministry's Regulatory Impact Statement showed the approach taken by the government was more conservative than what the MAG initially proposed, but more ambitious than what the ministry would have wanted.
It found the changes likely to improve how people understood the law, but unlikely to materially improve public safety.
"The changes are coherent, and somewhat minimise the scope for unintended consequences. In of themselves, these proposals are not expected to reduce offending levels but will provide more clarity around how intervention can occur, what should be done following an arrest, and remove confusion as to what degree of force can be used to defend one's property," it said.
It found clarifying the rules - that people making citizen's arrests can use restraints and should contact police as soon as practicable - was likely to "codify (but not change) the status quo".
However, people could also be encouraged by the changes to use force and restraints to make such arrests, which "may lead to unreasonable use of force and unlawful detention".
The ministry said this could be seen as inconsistent with the Bill of Rights, and the use of restraints "is inconsistent with laws regulating the use of force on children and young people".
"Agencies believe that specifying the use of restraints (although already allowed under the law) may lead to unreasonable use of restraints, which is especially concerning in relation to alleged youth offenders (who may be more likely to be arrested given they are typically physically easier to restrain that alleged adult offenders).
"Further, Māori are more likely to be disproportionately impacted by these changes (if more arrests occur)."
Removing restrictions on hitting or doing bodily harm when making an arrest would also mean less confusion about the law and make it more workable and consistent - but again, with no material change to public safety.
"No impact on public safety expected as the proposal does not allow for more than reasonable force and there is a minimal risk that retailers or the public will interpret this as allowing excessive force in applicable defence of property scenarios."
A cost-benefit analysis suggested the changes would make retailers and security guards' rights and obligations clearer, but this could also come with "minimal" one-off costs and the changes would overall have a "low" level of impact.
It also said police had raised concern about several aspects of the changes:
a. the inconsistent use of arrest powers and the relative lack of training retailers are likely to have in relation to arrests;
b. the risk that more than reasonable force is used - and that prosecutions follow, undermining the policy objectives;
c. the vulnerability of children and young people and how they may be detained;
d. offenders targeting places with less security (e.g., lone retail operators) or an escalation of violence (that would otherwise not occur) aimed at deterring arrests by retailers;
e. that citizens will perform arrests where Police would not, due to evidentiary or public interest thresholds for arrest and charging a suspect not being met - undermining confidence in the criminal justice system; and
f. that situations of low-level theft escalate into more serious violent situations.
The document said limited time, a narrow scope, few options to consider and a lack of broader consultation all limited the depth of the analysis, and said it would be difficult to assess how effective it was.
"This data may be difficult to gather, even with an excess of time, as police are unlikely to record the occurrence of 'citizens' arrests', for example."
While police would continue monitoring things like rates of shoplifting, "it will not be possible to determine whether any changes in offending rates are attributed to the changes proposed here, due to the many factors that give rise to offending behaviours".
The government is also looking at making sentences for a "coward punch" - a single-strike surprise attack on the head or neck - more strict.
An Auckland law professor has previously warned it would be easy for people making citizen's arrests to stray into using unreasonable force - including, for example, a deadly punch.