Via JuliaM this story about what appears to be an innovative approach to dealing with criminals.
Retail Loss Prevention, a centre for retail research, features in a report out today entitled ‘Civil Recovery: Unreasonable Demands?’
The CAB says it has been dealing with increasing cases of clients accused of shoplifting or employee theft who are then pursued for “substantial sums of money” as compensation.
It says: “Criminal charges are rarely brought and often the police aren’t even called.
“In some cases the intent to shoplift is questionable. Clients are then surprised to receive a letter demanding a large sum of money, weeks after the event, when they had thought the issue was resolved.
Julia quite reasonably proffers this as evidence that the criminal justice system has failed and there is a point to be made here. If it worked as it should, then people who steal from retailers would face criminal prosecution. Unfortunately “minor” crime is all too often not followed up by the police, leading here to the victims taking matters into their own hands.
That said, I really do not like this wheeze. It is one thing to sue an offender who has been convicted – I like the idea that they have to make suitable amends to the person(s) they have harmed. However, to deal with it entirely as a civil matter worries me. It worries me because the burden of proof is so much lower. In a criminal prosecution, the CPS has to demonstrate guilt “beyond reasonable doubt” and if there is reasonable doubt, the jury must acquit. A civil proceeding merely relies on a balance of probabilities. What then, for the person falsely accused? Given that the CPS, police, counsels, judges and juries have managed to convict innocent people time after time, despite the higher burden of proof in criminal trials, it doesn’t look good for the hoodie who has been wrongly accused by a Nottingham shopkeeper. Comments on the original piece use the word “vigilante”. I am inclined to agree with them.
There is, however, a glimmer of light – if you know where to look for it.
We believe the manner in which these requests for payment are made, and the threat of escalating costs and court action may constitute ‘deceitful’, ‘unfair’ and ‘improper’ business practice, as defined by the OFT.
Given that court action is expensive, it is unlikely that retailers actually want to go to court. What their solicitors are telling them is that your average accused shoplifter is unlikely to be very savvy when it comes to the law and a stiff letter making legal threats will scare the shit out of them, forcing acquiescence. If you are suitably bloody minded, you write back telling them to go ahead and issue proceedings, whereupon you will vigorously defend yourself. They have no option then; put up or shut up. If the theft being claimed is relatively small, balanced against the costs of court action and its uncertain outcome, there’s a fair probability that they will shut up. I’ve experienced this type of bullying first hand and that advice was given to me at the time. It has worked on each occasion that I have needed it. There is a caveat though; you do have to be in the right.
There is a lot of chasing people on a private basis now and the criterion is who can be more of a stand-over merchant.
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This is very true. Once you realise that it’s often a big game of chicken, standing up to them will work. I can be incredibly belligerent when needed and will not back down if I am being bullied. The very first time it happened, I paid rather more than I needed to in solicitor’s fees. I learned from that…
‘Civil Recovery’ has been used for years in retail. The old Safeway supermarkets in the UK used it from about 2001.
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Not quite the same but similar, I think.
My wife used to own an newsagency. Being trusting types we let two people who themselves were small business people to run up bills over 100 pounds. When it became clear that they were not going to pay we asked the local bobby what the situation was and he assured us it was a civil matter although I’m quite sure it is a criminal one, it would fall under the current Fraud Act (2006). So what, as the victims who had offered a service in good faith, could and should we do? We could accept that we were mugs or we could “bully” the poor little darlings.
We took them to court through the small claims court and got judgement by default as they both ignored the process. Equally they ignored the demand for payment, which now included costs. This is where the fun begins, going after assets is potentially problematical as you might find that the asset you go after is not actually owned by the person. I discovered that you could apply for an Order to Obtain Information whereby the debtor is summoned to court (this adds yet more costs). The beauty is that when the person ignores this summons, the issue is no longer the debt but contempt of court. When the bailiff knocks on the door to take the debtor to jail, they suddenly find the money very quickly and the courts are happy to accept full payment including costs and let the contempt of court drop.
In one case, the debtor sent us a cheque for his bill but not for costs. I contacted the court who told me that he had not discharged his debt so the process would continue. When the bailiffs knocked on his door to take him to jail, they would only accept the full amount which was then sent to us leaving us with costs plus twice the original debt. I was prepared to write a cheque and send it to the man but my wife said that since he had made us wait over a year and had only paid under duress, she would only return the money if he came to the shop and asked for it, which he never did.
What seems stupid to me is that these people took the goods, were capable of paying and yet chose not to and ended up paying an extra 50% more than the original bill was worth. Presumably they have done it to others who were less dogged and therefore obtained goods by deception.
I take both your points – where the defendant is indeed guilty and does owe the amount being claimed. My problem is where that is not the case – i.e false allegations. Where it is false, bullying is an appropriate term to use and bullying is precisely what happened to me. The situation was different in that I hadn’t stolen anything and there was a dispute about the debt (there wasn’t one as the claimant had breached his own contract). Hence my caveat in the last line of the post about being in the right before standing up to claimants.
The police have clearly got better things to do than catch minor criminals – filling in paperwork, for example.
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Quite so. It appears from the original article that retailers are chasing people who have been caught attempting to steal goods – therefore a criminal offence has taken place. However, as they were caught, no loss occurred, so to use tort law is inappropriate. They appear to be misusing it in order to punish the offenders. That is the job of the police, CPS and courts, not retailers and their solicitors.
It just shows the sorry state the law & law enforcement are in.