Security Operatives and Arrest
This weeks article is about the the technical subject of arrest. It’s a basic legal principle which both confuses and scares people on equal measure. While it should be an easy topic to explain it is also one which has to be taken very seriously. There are many very serious legal, safety and ethical issues to be considered when approaching the subject and all security operatives should take the time to make sure that they are fully aware of all of these issues. I’m going to do my best to summarise the subject here but as I have said before I’m not a solicitor and don’t claim to be. I am a person who have spent many hours researching the subject and testing that research in the real world. I’m by no means an expert and I implore you to do your own research and get legal advise after reading this. Don’t rely on me, anybody else or any company policy (many of which are legally flawed) to inform you. They can’t save you if it goes wrong. This is probably going to turn into a two part article as the subject is so important.
Arrest is one of the topics that should be covered as a learning outcome on the entry level security training courses. It’s specified as a thing that all learners should know and be assessed on by the end of the course. But that doesn’t guarantee that its taught correctly. I’ve met a number of people who are working in the industry and have been told wholly inaccurate information about arrest. There are others who have been told nothing at all. I’ve also looked at company policies that are telling people to do things which aren’t legal and have the potential to get the individual operative into a lot of trouble criminally.
Arrest as an option
Arrest is a legal option open to all citizens of Ireland including security operatives under a defined set of circumstances which will be discussed below. Security operatives have no additional power of arrest but we don’t need it in reality. What we have in current legislation is fine for what we have to do. What we also have to bear in mind is that while we have the option to arrest it may not be the best option. When dealing with criminal acts (like any risk) prevention is always better than cure and arrest is a last option response when prevention has failed.
Definition of arrest
Arrest is defined as “the deprivation of liberty for the purpose of bringing a person before a competent legal authority”. That’s a quite straightforward definition but it’s often not understood. Arrest is preventing a person leaving a place so that we can pass them onto the legal authorities. You will note that it doesn’t require the arrested person to go anywhere with you or allow you to force a person to go anywhere with you aside from the place in which they have been arrested.
Arrest in Irish Law
The circumstances of arrest by a private citizen in Irish Law is explained in Section 4 of the Criminal Law Act 1997. The sections in question say:
Section 4 (1) “ any person may arrest without warrant anyone who is or whom he or she, with reasonable grounds suspects is in the act of committing an arrestable offence”
Section 4 (2) “ where an arrestable offence has been committed, any person may arrest without warrant anyone who is or whom he or she, with reasonable cause, suspects to be guilty of the offence.”
Both of those are relatively straightforward. If you see somebody commit an arrestable offence or somebody has just committed an arrestable offence you can make an arrest. However both of these acts are subject to 2 further conditions
Section 4 (4) says that a person other than a Garda can only make an arrest if they reasonable believe that the person unless arrested by them would attempt to avoid arrest for that crime by the Gardai
Section 4(5) says once a person is arrested they must be transferred to the Gardai as soon as practicable.
So overall if I see a person commit an arrestable offence I can deprive them of their liberty (arrest). As long as I believe it is necessary to prevent them avoiding arrest and as long as I hand them over to Gardai as soon as practicable.
What’s an arrestable offence?
So now we know that we can arrest the next question is what can we arrest for. The term arrestable offence is used in the law but what is an arrestable offence? You can read about the different types of offences here but basically an arrestable offence is one which carries a maximum sentence on indictment of 5 years or more. So it’s a crime that carries a maximum sentence in law of 5 years or more. It’s doesn’t mean that the person will get 5 years or more just that they are capable of being given this sentence. This is why it’s important to know your law. There are some offences which you might assume are arrestable but aren’t in fact such as assault.
The law above mentions the term reasonable grounds to suspect a person is committing an offence. I advise real caution here. The only safe way to be sure that a person has committed a crime is if you yourself witness it either in person or on CCTV prior to the arrest. Reasonable suspicion is fine in theory but in practicality trying to define reasonable is a nightmare especially if you make an error. Situations like a shop manager ordering you to make an arrest or a club manager ordering you to hold a person for Gardai for a crime you haven’t witnessed is a legal minefield for you as a person and could see you facing criminal charges of assault personally. If you didn’t see it then it didn’t happen is my basic rule of thumb.
Transfer to Gardai
The law also says that the person should be handed to Gardai as soon as practicable. This is where many retailers polices actually break the law and place the Security operative in a precarious legal position. If you arrest a person let’s say for theft (which is an arrestable offence) and then release them because the value falls below the store prosecution policy then you have not completed a lawful arrest. For the arrest to be lawful the person must be handed to Gardai. The individual who made the arrest could be both criminally and civilly liable here as well as the store being civilly liable. I’m afraid the excuse of I was only following procedure won’t wash in a criminal court.
Making an arrest
As we said above making an arrest is a deprivation of a person’s liberty and as such falls under the Human Rights legislation. Every person has a qualified human right to liberty and can only have their liberty taken away in certain circumstances. Those circumstances are outlined in Article 5 of the European Convention on Human Rights Act 2003. One of those criteria is to the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
Straightforward so far but a qualifying criteria for this is that a person is entitled to be informed promptly in a language which he understands of the reason for his arrest. This doesn’t mean you have to be multilingual (although Google translate can help), it just means that you have to explain to a person in plain English that they have been arrested and why. Again many incidents fall short of these expectations . How many store policies in retail contain phrases such as “I believe there may be an issue with your purchases please return to the store with me”. To do this could be a breach of human rights legislation and again open you up to civil liability. There is a caveat here. If it isn’t safe or practicable to inform the person at the time of arrest or their actions prevent you from doing so then they should be informed as soon as it does become practicable.
End of Part 1
There’s still so much to cover here and we are already almost 1500 words here so I’ll leave it there for part 1. In part 2 I intend to cover the health and safety implications of arrest, duty of care, use of force, dealing with minors and much more. If you have any questions on it before part 2 then drop me a message or email and I’ll get it included. Until then thanks for your time.