The citizen’s power of arrest

I may not be any police officer, a member of the armed forces, a community officer, a prison warden, a security officer or any other enforcement officer, but I can lawfully arrest you if I were to encounter you in several specific situations. Situations o

If I were to catch you in the act of committing or having just committed any crime concerning sexual offences, any crime of wilful homicide or bodily harm or any crime of theft or of wilful unlawful entry or damage to property, I can proceed to arrest you there and then, even if I am unarmed and cannot handcuff you. Reverse those roles and it is vice-versa.

This scenario emerges from the short provision contained in Article 355W of our Criminal Code. Many countries around the world have this citizen’s power of arrest, but the extent to which, and the situations in which it may be exercised vary from one country to another. While, perhaps, there is a growing perception of public indifference to the needs of fellow citizens, the citizen’s limited power of arrest afforded by the legislator illustrates both the individual’s responsibility for the prevention of crime and society’s need for private intervention in public law enforcement. This responsibility and this need are becoming more important as our modern urban society, beset with mounting pressures from crowding living conditions and budding social unrest, is confronted with an ever-increasing incidence of crime. The citizen’s power of arrest is an outgrowth of stagnated common-law rules that were derived from English practices of the Middle Ages and that eventually found their way into our criminal code as a result of Malta’s colonial past.

“While the practice of citizen's arrest holds an important place in community enforcement, the specifics are often hard to nail down and even harder for legal professionals to interpret and apply.”

The general pattern in Europe follows the Roman principle venices injuriam, the vengeance of the injured, which allows anyone who is harmed, or even a witness, to raise a hue and cry and arrest the perpetrator. It is designed for an environment in which police are not widely present. This is also why, in other exceptional circumstances, our law affords us the right to self-defence and exempts us from all legal consequences, even in the case of wilful homicide. It will be recalled that not long ago, and for quite some time, we had in place in some local towns and villages the Neighbourhood Watch practice entrusted with keeping an eye out for any criminal activity or suspicious behaviour. Of course, at the time, the citizen’s power of arrest was already in our statute book, but we hardly ever heard of that power of arrest being exercised. Today, all that is being replaced by the community police system. Yet, lately, it was reported that this citizen’s power of arrest was effectively resorted to in the odd incident, ranging from the usual shoplifter or aggressor in a snatch-and-run case, to a person who had just committed a wilful homicide in

Marsa.

Whatever the circumstances, in practising this exceptional power of arrest, one can easily find oneself in a very complex legal dilemma, namely how to go about it, the amount of force that can be used, if at all, and what to do thereafter. The criminal code directs that the person making the arrest shall, without delay, inform the police of the fact of the arrest and shall exercise such power only until it is strictly necessary for the police to take over the person arrested. So one has to be sure that someone is indeed committing, or has just committed, one of the listed offences before proceeding to arrest that person. Yet, how is one to arrest if the subject adopts aggressive, violent or other threatening behaviour to resist arrest? Reasonableness and good judgement come into play here.

Robert Peel, one of the founders of the modern police corps as a disciplined force, had to go to a lot of effort to create a police force that did not appear military and did not essentially have any more power than a normal citizen. This is where the citizen arrest term came from. It was an attempt to prove that these men in uniform were only doing what any citizen had the right to do. In England, there were no police until 1829, and, even then, it was only established in London (the "bobbies" created by the Metropolitan Police Act of 1829). Before this, there were only the Bow Street Runners, who were a vigilante-type group.

While the practice of citizen's arrest holds an important place in community enforcement, the specifics are often hard to nail down and even harder for legal professionals to interpret and apply. It is, therefore, important to know about what it means to conduct a citizen's arrest, and just as importantly, what it does not mean. For example, our law does not expressly eliminate the possibility that someone will be held liable if something happens after the fact, as perhaps might be found in our Good Samaritan legislation. If a citizen stops a purse snatcher in the act and the snatcher falls and breaks his arm, will the citizen who stopped him be held liable for the ensuing injury?

The decision to make a citizen’s arrest is not to be taken lightly, given the risks it poses to the citizen. In practice, when the police do arrive on the spot, you would see both the citizen making the arrest and the person arrested both detained and the citizen would be compelled to give a statement concerning what he or she saw.

Depending on how well you judge any one of those situations laid down in the law and your courage to overcome the fear of resorting to arrest, you may easily find yourself being acclaimed as a veritable hero or simply a villain.