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Section 38 and Citizen's Arrest

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Section 38 and Citizen's Arrest

Postby Spankymonkeyisback » Mon Jan 02, 2017 9:48 pm

As chrome has chosen to lose all of my passwords of Spankymonkey I have had to re-register. But at least that makes me eligible to place my question in the first time questions again:

Section 38 of the Offences Against the Person Act states:

"Assault with intent to commit felony, or on peace officers, &c.
Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, . . ."

This seems to conflict with Section 24a of PACE:
24 A Arrest without warrant: other persons
(1)A person other than a constable may arrest without a warrant—
(a)anyone who is in the act of committing an indictable offence;

The OAPA could therefore give the right for a security guard (or any member of the public) to apprehend someone for a minor public order offence, such as causing harassment alarm and distress, or any other summary offence, as long as they use force to do so.

Furthermore, the use of the archaic term misdemeanor does not seem to have been amended despite the fact that the CPS charging standard recognizes the offence as being either way.

Is section 38 to be read in conjunction with any other act, as I can find no indication of it on the latest available version of the OAPA:

http://www.legislation.gov.uk/ukpga/Vic ... section/38
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Re: Section 38 and Citizen's Arrest

Postby shootist » Tue Jan 03, 2017 12:40 am

You need to read it again:

Whosoever shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, . . ."


The arrest, therefore, has to be lawful.

The OAPA could therefore give the right for a security guard (or any member of the public) to apprehend someone for a minor public order offence, such as causing harassment alarm and distress, or any other summary offence, as long as they use force to do so.


Only if the arrest was lawful, which in most circumstances of the type you quote, it would not be. I only say 'most circumstances' because there may be something or other that might qualify, but I can't think of one right now.
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Re: Section 38 and Citizen's Arrest

Postby Spankymonkeyisback » Tue Jan 03, 2017 6:10 am

shootist wrote:
The arrest, therefore, has to be lawful.


So S38 should be read with regards to Section 24a of PACE? It would not be a lawful arrest if it that person had been apprehended for a summary offence?
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Re: Section 38 and Citizen's Arrest

Postby Spankymonkey » Tue Jan 03, 2017 6:22 am

Thank you Atticus, for resetting my password.
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Re: Section 38 and Citizen's Arrest

Postby shootist » Tue Jan 03, 2017 10:19 am

Spankymonkeyisback wrote:
shootist wrote:
The arrest, therefore, has to be lawful.


So S38 should be read with regards to Section 24a of PACE? It would not be a lawful arrest if it that person had been apprehended for a summary offence?


I think, but cannot be certain, that there are some preserved powers of arrest that a non police person can use. I think that some of the offences under the Vagrancy Act 1824 remain on the books and there is a power of arrest for them.


Persons committing certain offences to be deemed rogues and vagabonds.
.
Every person committing any of the offences herein-before mentioned, after having been convicted as an idle and disorderly person; [F4 every person pretending or professing to tell fortunes, or using any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose on any of his Majesty’s subjects; ] every person wandering abroad and lodging in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, [F5 not having any visible means of subsistence ] and not giving a good account of himself or herself; [F6 every person wilfully exposing to view, in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition ] ; [F7 every person wilfully openly, lewdly, and obscenely exposing his person [F8 in any street, road, or public highway, or in the view thereof, or in any place of public resort, ] with intent to insult any female ] ; every person wandering abroad, and endeavouring by the exposure of wounds or deformities to obtain or gather alms; every person going about as a gatherer or collector of alms, or endeavouring to procure charitable contributions of any nature or kind, under any false or fraudulent pretence . . . F9 . . . F10 every person being found in or upon any dwelling house, warehouse, coach-house, stable, or outhouse, or in any inclosed yard, garden, or area, for any unlawful purpose; [F11 every suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort, or any avenue leading thereto, or any street, [F12 or any highway or any place adjacent to a street or highway; ] with intent to commit [F13 an [F14arrestable offence[F14indictable offence ]]]] ; and every person apprehended as an idle and disorderly person, and violently resisting any constable, or other peace officer so apprehending him or her, and being subsequently convicted of the offence for which he or she shall have been so apprehended; shall be deemed a rogue and vagabond, within the true intent and meaning of this Act;and [F15 , subject to section 70 of The Criminal Justice Act 1982, ] it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses,) to the house of correction, . . . F16 for any time not exceeding three calendar months; . . .


And
F16

Any person may apprehend offenders.


I don't think I'd chance it though.
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Re: Section 38 and Citizen's Arrest

Postby Spankymonkey » Thu Jan 05, 2017 8:28 am

Any person may apprehend offenders.


That section of the Vagrancy Act was repealed. What you've quoted is the section heading.
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