The Law and Arrest Part 2

Tony Security 3 Comments

Security Operatives Power of Arrest

Following on from the previous article on this subject I want to go a bit further into the topic of power of arrest. In the last article we covered some areas including the legality of arrest. The basis for arrest and some legislative areas. In this article I’m want to develop that a little. I want to talk in this article about the duty of care element of arrest, dealing with minors, and the use of force in effecting an arrest. There has been a huge amount of comments and questions from the first article and I’m going to do my best to make sure that they are all answered here as well. Lastly to say that this article was only ever meant to be an overview of the legal position of arrest and not a how to guide. Some of the feedback has been around more practical points of detection models etc. and I’ll cover that in a different article. Of course I need to finish with the usual disclaimer. I’m not a legal expert and dont claim to be a solicitor. I’m a security professional with a lot of years of experience and education in the sector and I spend a lot of my time researching teaching and testing this stuff in the real world. Don’t just take my word for this stuff. Go research it yourself.

Guilty Act & Guilty Mind

Actus non facit reum nisi mens sit rea: A person’s conduct cannot amount to a crime unless it is carried out with a blameworthy state of mind.

Most crimes have two elements to them.

Actus Reus – The guilty act

Mens Rea – The guilty mind

There are some crimes which only require a guilty act to take place. These are known as strict liability crimes (examples are speeding, driving without insurance) where only the act needs to be guilty and the intention or state of mind of the suspect is irrelevant. However most crimes also require the guilty person to have a guilty mind. This includes theft. So for example we may have a situation where a persons child unknowing places an item in their bag and they leave the premises with it or a person with profound intellectual disability takes an item. In both of these cases the absence of a guilty mind prevents them from being a crime even if the criteria for a guilty act is met. Behavior such as concealment, removal of tags, wearing of products under clothes etc. help to show the guilty mind aspect and should be included in any verbal and written statement about the incident.

Duty of Care

Duty of care as it applies to retailers and their responsibilities towards customers is covered in the Occupiers Liabilty Act 1995. The legal duty of care refers to the civil tort of negligence. The basic principles are:

1. A duty of care must be owed

2. That duty must be breached

3. The breach must result in injury, harm loss or damage to the person or their property.

The duty of care is owed to visitors, staff, recreational users and even trespassers. The occupier and by extension their employees must do what is reasonable to ensure that those on the premises and in their care are kept reasonably free from harm. The level of expectation differs with the category of person. For trespassers in particular the standard of care is quite low but for visitors the standard is very high.


Your probably asking how this applies to arrest? When we make an arrest we deprive a person of their liberty and have a legal right to prevent them from leaving. We don’t however have the right to compel them to go anywhere with us. This means we cannot force them to return to the store. We can ask but legally we can’t force them to go anywhere. So when we ask a person to return to the store they become a visitor for the purposes of the Occupiers Liability Act. This means the standard of expected care is high. As security operatives representing the employer we must take all reasonable precautions to keep them free from harm and their property free from damage until we can hand them over to Gardai. So while it’s probably safer from a security perspective to invite them back into the store it has to be recognised that by doing this we raise the standard for duty of care.

Arresting Minors

For the purposes of criminal law a child is any person under the age of 18. While the law on arrest makes no age discrimination there are specific pieces of legislation which protect children who have been arrested. Part 6 of the Children’s Act 2001 deals with the treatment of child suspects in the custody of Gardai. It says

55.—In any investigation relating to the commission or possible commission of an offence by children, members of the Garda Síochána shall act with due respect for the personal rights of the children and their dignity as human persons, for their vulnerability owing to their age and level of maturity and for the special needs of any of them who may be under a physical or mental disability, while complying with the obligation to prevent escapes from custody and continuing to act with diligence and determination in the investigation of crime and the protection and vindication of the personal rights of other persons.

Basically it recognised that children in custody require higher levels of supervision and care while detained. While I’m not aware of any case law relating to specifically security operatives I am of the opinion that this level of care in detention will also extend to the time they spend waiting for Gardai.

Criminal Responsibilty

Section 129 of the Criminal Justice Act 2006 which replaces sections of the Children’s Act say that a child under the age of 12 cannot be charged with an offence (there are 4 exceptions to this for very serious offences) . It says that any Garda who reasonably suspects that a child under 12 has committed an offence is obliged to bring the child directly to a parent or guardian or have them collect the child. There is some case law to support security operatives who have arrested a child younger than 12 and who decide to not notify Gardai and pass the child directly to a parent/guardian. However having consulted Tusla on this topic they still advise contacting Gardai and allowing them to do so as there may be a child protection issue which exists that the security operative is not aware of.

To simplify

1. If a child is under 12 is arrested they wont be charged with an offence.

2. You may if you choose transfer a child under 12 to a parent/guardian or contact the Gardai who are obliged to do so. Involving Gardai is the safest option for child protection reasons

3. A child over the age of 12 holds a higher standard of care while arrested but must still be transferred to Gardai to make the arrest lawful.

A quick note on child protection. Under the above legislation a child who has been arrested is a vulnerable person and child protection guidelines apply. This means that under no circumstances should a security operative be alone with a child.

Use of Force

Now for the bit that everybody has been asking for. Can we use force to make an arrest. The answer is yes provided that force is reasonable. That’s not a cop out but this is also not a reasonable force article (I’ll do one of those if the interest is there) . The legislation that deals with reasonable force is the Non Fatal Offences Against the Person Act 1997. Believe it or not every Arrest is a use of force regardless of whether you touch the person or not. Section 19 of the Act says

19.—(1) The use of force by a person in effecting or assisting in a lawful arrest, if only such as is reasonable in the circumstances as he or she believes them to be, does not constitute an offence.

(3) For the purposes of this section the question as to whether the arrest is lawful shall be determined according to the circumstances as the person using the force believed them to be

So we can use force to effect a lawful arrest provided that the person making the arrest believed the arrest to be lawful and the force is reasonable in the circumstances. However it goes beyond that when it comes to arrest. In Section 20(b) it says

a person shall be treated as using force in relation to another person if

(i) he or she threatens that person with its use, or

(ii) he or she detains that person without actually using it;

So the simple act of making an arrest is a use of force but a person may use further reasonable force to make an arrest or ensure the person does not escape. Reasonable force is a subject that needs at least a full article to itself but to be clear you can absolutely use reasonable force to make an arrest but that does not extend to compelling a person to another place after arrest. So no dragging a person back into the store.

Arresting other Genders

The law makes no distinction between genders when it comes to crime or arrest. Men can arrest women, women can arrest men and we can arrest transgender and gender fluid person regardless. Best practice is to have a person of the same gender as the person in attendance as a witness but that is simply to protect the security operatives from accusations of inappropriate behaviour and is not a legal requirement. Legally you can arrest any person you see commiting a crime and gender isn’t an issue.

Power of Search

Easy one here. There is no right of search for security operatives. This even extends to when a person is arrested. A person can of course give consent to be searched but there is also risk here. Risk of injury first of all but more than that. There is a risk that the fact that a person is under arrest at the time they may feel compelled to comply. If consent is given then the security operative must make the person aware of their right not be searched and the threat of further punishment cannot be used to gain consent. Best practice is to wait for Gardai to perform the search.

Continued detention

There will always be a period of time while waiting for Gardai. During this time the security operatives safety is obviously the highest priority but awareness must be given to the suspects rights also. This includes the right to privacy. While we may ask questions of the suspect they are not obliged to answer. Many people associate arrest with the Garda caution but they are completely different things. The person will be cautioned by Gardai when charged. Anything said after this can be used as evidence. This is not a security operatives role. DO NOT say a thing of this type to a suspect. Comments made by the suspect can of course be noted both to Gardai and in your report as a witness to a crime.


So to summarise.

Any private citizen can make an arrest.

An arrest is simply depriving a person of liberty.

A person must not just commit a guilty act but show signs of a guilty mind also

There is a duty of care owed to all arrested persons.

An arrested person must be informed that they are under arrest and for what.

The suspect should to transferred to Gardai as soon as is practicable. There is no power to release after arrest or to search a person.

There are additional duty of care considerations when children are arrested and children under the age of 12 will not be charged with an offence.

There is no gender distinction when it comes to arrest.

Every arrest is regarded as a use of force and the further use of reasonable force can be used to make a lawful arrest.

Part 2 finished but I’m now thinking that there are other pieces still to discuss. In the next few weeks I want to discuss false arrest and the legal aspects of it. I also want to cover a practical piece on detecting and carrying out an arrest for retail crime. If anything comes into your head to ask feel free to do so. For now though thank you for taking  the time to read this and please go and research your own approach to the subject.

Comments 3

  1. Hi…
    May I ask …
    If I persue an agenda of arrests
    What if the person I detain is in charge of a child.
    What if one person in a group has taken property (Ascone)

    1. Tony O Brien Post

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