This morning, the Sydney Morning Herald reported a story about a Sydney based hire-car driver who, sick of Uber X drivers, ordered one himself and proceeded to “arrest” him (J. Saulwicjk and M. Power, “Taxi and hire car drivers plot fight back against uberX“, Sydney Morning Herald, 24 November 2014).
The arrest was obviously a manufactured spectacle, with the disgruntled hire-car driver inviting SMH’s reporters to the Star to witness the thing.
The article wasn’t quite clear about what the driver did when the poor Uber X driver arrived. The scant detailing seemed to suggest that:
- somehow the hire-car vigilante got the Uber X driver out of his car; and,
- somehow the hire-car vigilante got the Uber X driver to stay at the scene, not only until Casino Security arrived, but until the police arrived.
Since the text of the article suggested that this was more than a mere venting of the hire-car driver’s spleen, but an “arrest”, I will assume that the traditional definition of arrest applies, simply, that the Vigilante deprived the Uber X driver of his liberty.
The SMH stated that it is perfectly legal to undertake a “citizen’s arrest” where you see someone committing an offence.
I don’t think that we should take this statement at face value. Rather, let’s break this down step by step.
The SMH statement seems to be based on S100 of LEPRA, which states:
Section 100 – Power of other persons to arrest without warrant
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
Section 231 of LEPRA then provides that, in the course of the arrest, the vigilante “may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”.
So, there are a few elements that need be carried out for the vigilante arrest to be within the law:
- the arresting person must not be a police officer [✓]
- the arrested person must satisfy one of the conditions in sub-s (a)-(c) [?]
- the arresting person must take the arrested person to an authorised officer [x]
The first requirement, here is uncontroversial.
… an offence under an Act …
The second is a little more complex. First, it has to be shown that the arrested person was doing something that is an offence under an Act.
There is relevant legislation. There are, here, provisions about who may be a taxi-driver, and what constitutes a hire-car.
That the arrested person does not comply with these requirements is not enough to arrest him or her. The arresting person must show that driving an Uber X is not only breaching a provision of these laws, but that such a breach is an offence under that legislation. This is not plain, and the NSW Government’s jawboning on the issue (despite what the SMH may say) does not make it more of an offence.
Further, even if it is shown that driving in such a manner is an offence, the arresting person must show that a breach was occurring or just occurred. If the Uber X was electronically hailed, but no offence was yet committed (despite the likelihood of the offence occurring), then the arrest is in breach of these provisions of LEPRA.
… an authorised officer …
The third requirement burdens the arresting person with producing the arrested person before an “authorised officer” (see s 3 definition of “authorised officer”). This is not an open-ended category, but is strictly defined, including only a magistrate, registrar or certain Attorney General’s department employees.
This certainly does not include police officers, who were the only persons called after the “arrest,” depriving the arrested person from the right to be “dealt with according to the law”.
This failure brings the whole process outside of the provisions for a “citizen’s arrest” under LEPRA – leaving the hire-car batman (likely) outside of the protections of an arresting person under LEPRA.
… such force as is reasonably necessary …
Even if the arrest is carried out to the letter of the law, our hire-car Batman is still not in the clear. If any force was used in making the arrest, it must have been reasonably necessary.
Here, you can get in trouble even if the crime that the arrested person was detained for was serious. There is not much flexibility here, as vigilantism is discouraged.
Where the “offence” was one of a type that would be ordinarily dissuaded by the issuance of a fine or a court attendance notice, and where a reasonable cop would be very unlikely to arrest someone (e.g. most traffic and licensing offences, and most offences covered by the relevant legislation), then leniency would be even narrower. You are unlikely to get away with anything.
If our Batman arrests a person improperly, or with greater force than is reasonably necessary, he himself will have committed at least tortious assault and false imprisonment and possibly some crimes as well.
This is a dangerous game (which could lead to the absurd result where one party “citizens arrests” the person who originally tried to “citizens arrest” them for committing crimes in the attempt of an arrest, potentially ad infinitum), and should definitely not have been encouraged by the SMH.
Don’t try this at home, or anywhere – even if you are doing it right, you can get in trouble.