Wednesday, May 4, 2011

What powers do security officers and crowd controllers have over me?

In Western Australia, security officers and crowd controllers have no greater arrest powers than those of an ordinary citizen.
Can security officers or crowd controllers arrest me?
Like any ordinary citizen, a security officer or crowd controller has the power to arrest any person who is, or suspected to be, committing an offence punishable by imprisonment. This is called a citizen’s arrest. To do this they must use clear words and touch you. Generally they will put a hand on your arm and say, “you are under arrest.”

If a security officer has a “reasonable belief” that an offence such as stealing has been committed by you then they can arrest you. You should get legal advice if this happens to you. Note that a security officer does not have to wait until you leave the store before arresting you for a suspected stealing offence. If they do wait until you leave, it may be easier for them to prove that you had no intention of paying for the items.
Do I have to go with a security officer or crowd controller when they ask me to?
If the security officer is not actually arresting you, you are under no obligation to stay or accompany the officer to the manager’s office or anywhere else.

If you have been arrested under a citizen’s arrest, the person may detain you for as long as is reasonably necessary for the police to take you into their custody.

The security officer or crowd controller may use only ‘reasonable’ force to detain you. If more force is used than is reasonable then it may be an unlawful assault.
Do I have to give my name or other details?
You are under no general obligation to give your name, date of birth, address or other details to a security officer or crowd controller.

However, there are exceptions to this general rule.  They are:
  • where you trespass on property, including where you remain on premises after being asked to leave, the owner or manager can ask your name and address and it is an offence to refuse or to provide false details

  • where an employee of a licensed premise believes you are aged under 18, they can ask your age and request identification and it is an offence to refuse without a reasonable excuse or to give false information.
You should note that if the police become involved and a police officer requests your name, address and date of birth, you must provide these details and it is an offence to refuse or to give false details. 
Do I have to answer other questions?
You are under no obligation to answer any questions asked by a security officer or crowd controller other than in the circumstances noted in the exceptions above.  Even if you go with the security officer to the manager’s office or elsewhere, either voluntarily or under arrest, you do not have to answer any other questions. 

Anything you do tell the security officer, crowd controller or other people may be used against you in court.
Can I or my property be searched?
No-one except a police officer has the right to search you or your bags, even if a prominent sign states that this is a condition of entry. 

If you do not allow your bags to be checked, you may be denied service and asked to leave the store. Your refusal may also add to any "reasonable suspicion" that you have committed an offence. This might mean that a security officer has more reason to arrest and detain you until police arrive.
Can I be removed from premises?
Security officers and crowd controllers are allowed to ask you to leave private premises or functions on behalf of the owner. An employee on licensed premises can refuse entry or remove you from premises for a wide number of reasons.

If you don’t leave when asked to do so, you may be trespassing and the security officer or crowd controller can use reasonable force to remove you from the premises. If more force is used than is reasonable then it may be an unlawful assault. Although it is difficult to know exactly what is ‘reasonable’ (as this does depend upon the circumstances) – holding a person so that they cannot move, and escorting them to the door might be considered reasonable (by a court); But punching someone, grabbing them in a headlock and dragging them in choke hold might not be considered ‘reasonable’  (by a court).

Importantly, security officers or crowd controllers do not have the authority to assault people, inflict punishment or to retaliate for any insult to any extent greater than any ordinary citizen.

All assaults are unlawful, unless they are authorized, justified or excused at law. An ordinary citizen, if charged by police with an unlawful assault, may raise provocation or self defence (including the defence of another) – in response to a criminal charge for assault.

Furthermore, it is for police to decide whether to charge a person for unlawful assault – a security officer or crowd controller cannot do it.

It is suggested (and please note, this is merely the writer’s opinion) that the same principles should be applied to the conduct of a security officer or crowd controller when using ‘reasonable force’ to remove a person from the premises –

(A)   that the conduct of the offending patron or entrant must itself amount to a contravention of the owner/management’s rules for being on the premises; and

(B)   that having been requested or told to leave, the offending patron has refused to do so; and

(C)   the conduct of the offending patron amounts to an unlawful assault upon the security officer or crowd controller, that warrants that person using ‘reasonable’ force in response to provocation or self defence (including the defence of other persons, including patrons, or employees of the owner or management)

Furthermore, their authority to maintain security or control crowds is an authority delegated to them by the owner or the management of licensed premises. That authority stops once they leave the premises. They do not have any authority to pursue the matter out on to the street. Such conduct is generally excessive and unlawful

If you are subjected to a degree of force by a security officer or crowd controller – however offensive they may be towards you, or however unjust you feel the treatment – you should not resist and should go quietly.

Resisting, arguing or fighting back will usually only result in you being injured, and inevitably, such behavior will be referred to by the security officer or crowd controller as justification for their behavior. They will attribute fault to your resistance, argumentativeness, and possibly intoxication as well, in order to assert that they acted correctly in removing you. Don’t fall into that trap.

It is better to go quietly and, once removed from the premises, gather the names and telephone numbers of anyone who witnessed the incident. From these people, you should obtain simple written statements about what they saw, and provide copies to police and to your lawyer.

Remember CCTV is everywhere these days, and many people have cameras on their phones. Whether this can be admitted in evidence in a Court is a complex question, but if the footage supports your version of events – this may result in police taking action on your behalf to either suspend or cancel the security officer or crowd controller’s licence, or charge them with a criminal offence.

Who do I complain to about the actions of security officers or crowd controllers?

General complaints should be made to the owner or manager of the premises. If you are rebuffed or ignored on the day/evening of the incident, wait until the following day. If you make the complaint first (before the security officer or crowd controller has reported the incident themselves), you may look more credible than you might otherwise where they reported the incident themselves and alleged wrongdoing on your part.

It is a good idea to make this complaint in writing, and to keep a copy of the letter. The letter should also be “cc” to the Police Licensing Officer (as this will get the attention of the owner or manager of the premises.

It is also advisable to make a complaint directly to the Police Licensing Officer (A Senior Police Officer, who is responsible for the administration of Security & Crowd Control Licences). The Police Licensing Officer will investigate the matter and deecide whether any action should be taken in relation to the cancellation or suspension security officer or crowd controller’s licence.

Any assault inflicted on you should also be reported to the police station closest to you, and as soon as possible after the incident.

If no satisfactory action is taken by the Police Licensing Officer then you should seek legal advice from a lawyer about further course of action.

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