ABSTRACT
Under sub-s (a), any person, including the police, may arrest without a warrant anyone who is caught in the act of committing an arrestable offence. If a suspect is arrested on that basis and if he or she is not committing an arrestable offence, then the arrest is unlawful. However, if an arrest is made under sub-s (b) on the basis that the police or an ordinary citizen has reasonable grounds for suspecting a person to be committing an arrestable offence, the arrest will be lawful, even if the suspect was not committing such an offence. This is illustrated in R v Brosch (1988), where a store manager had lawfully arrested a man seen in the toilets who was looking dazed and had a syringe in his possession. The store manager asked him some questions about drugs and then took hold of him when he tried to leave and said ‘You are not going anywhere’. In this case, the store manager had reasonable grounds for suspecting the defendant to be unlawfully in possession of controlled drugs which is an arrestable offence. But, if, for instance, the suspect did not unlawfully have drugs in his possession, the arrest would have still been lawful, because the store manager had reasonable grounds for suspecting that an arrestable offence was being committed. This constitutes the well known ‘citizen’s arrest power’, which is often relied upon by security professionals, such as store detectives, since the focus of their attention is on theft, which is an arrestable offence, as it can attract a maximum seven year prison sentence. But such powers should always be exercised with care, since an arrest which is declared unlawful can result in civil or even criminal action being taken against the arrestor. If the police make an unlawful arrest, as far as the former is concerned, they are usually protected by the vicarious liability mentioned in Chapter 1. Others may not have the same legal protection and may suffer the punitive effects of being sued for making an unlawful arrest (see the coverage below regarding the consequences of such action).
