Section 40 — Crimes Act 1961: Preventing escape or rescue

40 Preventing escape or rescue (1) Where any person is lawfully authorised to arrest or to assist in arresting any other person, or is justified in or protected from criminal responsibility for arresting or assisting to arrest any other person, that authority, justification, or protection, as the case may be, shall extend and apply to the use of such force as may be necessary— (a) To prevent the escape of that other person if he takes to flight in order to avoid arrest; or (b) To prevent the escape or rescue of that other person after his arrest— unless in any such case the escape or rescue can be prevented by reasonable means in a less violent manner: Provided that, except in the case of a constable or a person called upon by a constable to assist him, this subsection shall not apply where the force used is intended or likely to cause death or grievous bodily harm. (2) Where any prisoner of a prison is attempting to escape from lawful custody, or is fleeing after having escaped therefrom, every constable, and every person called upon by a constable to assist him, is justified in using such force as may be necessary to prevent the escape of or to recapture the prisoner, unless in any case the escape can be prevented or the recapture effected by reasonable means in a less violent manner. Compare: 1908 No 32 ss 62, 63, 64, 65 Subsection (2) was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “ prison ” for the words “ penal institution ” . See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52). Subsection (2) was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “ prisoner ” for the word “ inmate ” in both places where it appeared. See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).