Although it has been much amended, its general principles remain much as drafted. The fundamentals of the Act were established through centuries of legislation to define and punish crime and common law interpretation of how those concepts functioned in the real world.
While successive governments have pledged to get tough on crime, that has essentially meant changing the numbers in the Crimes Act: the words remain much the same.
However, that may all change as the current government’s determination to clamp down on retail crime has inspired proposed legislation to give businesses and citizens more power to tackle crime when they see it committed in front of them.
The government proposes that citizens can intervene to stop any Crimes Act offence at any time of the day, that restraints can be used, when reasonable, when making an arrest, and to amend the Act so it is clear that reasonable force may be used to defend property.
In announcing the proposed law changes, Justice Minister Paul Goldsmith claimed the Crimes Act hindered people from stopping offending as it happened right in front of them.
To a degree he is right, and there is good reason why it does so.
The power to arrest or detain is a severe power and for good reason it is only afforded to a select few, most notably the police. Even then, the police have several hurdles to clear and regimented procedures to follow before they exercise that power, and doing so wrongfully will have consequences for officers and for any legal proceeding.
They are well trained to know both when they can arrest, and how. Will such training be afforded to retail staff and casual shoppers?
There will also need to be legislative consideration to the issue of wrongful arrest: what protections will be available to staff or citizens who make an honest mistake, or who detain someone maliciously?
What recourse will be available, if any, for anyone who finds themselves wrongly accused through this new "citizen’s arrest" provision? And what protections are available to staff should their employer require them to "arrest" someone, or if their wrongful arrest of someone becomes an employment matter?
Many retailers recognise that and actively train their staff not to intervene if they see theft occurring on the premises where they work. Many retail staff are young and not mentally or physically prepared to pounce on any suspected shoplifter.
They are there to show you to the changing rooms, ask if you want fries with that or be stacking the shelves. They have not gone to work in expectation of a career in law enforcement.
There is also the strong possibility that potential offenders, knowing they they run the risk of being detained by a citizen, will, rather than being deterred from committing crime, instead opt to arm themselves to intimidate any preventative action. Staff may well feel a similar need to protect themselves. A tragedy seems inevitable in such circumstances.
As the Crimes Act stands now, if someone does act to prevent or detain someone taking property, a judge has to determine if their actions were reasonable and proportionate. Any expansion of the right to arrest will necessarily require a review of what those legal concepts mean in this new context. Such cases will no doubt keep appellant cases busy for years to come.
The proposed law change is a political and populist measure which will play well to the affronted dairy owners who government MPs liked to stand beside during the last election campaign. As people on the front line of retail crime, they do have a valid point.
However, the fact that unionists and employers alike have criticised the idea should give the government pause for further thought, as there are many issues to consider.
This is the first suite of initiatives put forward by the government’s justice Ministerial Advisory Group. Whatever the group dreams up in future will need to be much more fully thought through than this proposal has been.
