17 June, 2014
Forbes has successfully defended at trial an unusual claim against a major retailer. It was alleged that a supermarket chain had unlawfully detained/ falsely imprisoned an alleged shoplifter and in doing so committed a breach of the Human Rights Act 1998.
The Claimant was detained by security guards on suspicion of theft whilst shopping in January of 2011. The Claimant was taken into a First Aid Room and questioned about the alleged theft. Following discussions, it was admitted by the Claimant that he had not paid for certain items and allegedly sought to pay for those items he had forgotten to pay for.
Whilst waiting for a manager and the Police to arrive the Claimant became irate and attempted to leave the First Aid Room. He was prevented from doing so by the security guards. A scuffle ensued and it was alleged that the security guards scratched the Claimant's chest and grabbed him round the throat. The Claimant was subsequently detained until the Police arrived who charged the Police Claimant. A subsequent prosecution by the CPS was undertaken.
At the criminal trial the Claimant was acquitted of all charges. He subsequently brought a civil claim against the retailer and the Police.
At trial, the main issue to be determined was whether the security guards / store manager had arrested the Claimant for any offence. Specifically much was made of whether the word arrest was used and/or whether the actions of those detaining made the Claimant aware that he was under arrest. The Claimant alleged that he was never arrested and was not aware that he was under arrest. The Claimant therefore alleged that his detention was unlawful and that he was falsely imprisoned.
Citizens (including security guards) only have the power to arrest and then detain. They can not simply detain individuals. An arrest can only be made if it does not appear reasonably practicable for a Police Constable to effect the arrest, and if the person making the arrest has reasonable grounds to believe that such an arrest is necessary to prevent the person being arrested from:
(a) causing physical injury to himself or any other person;
(b) suffering physical injury;
(c) causing loss of or damage to property; or
(d) making off before a constable can assume responsibility for him.
Security guards therefore face a difficult balancing act between remaining on the right side of the law without further escalating the situation. Members of staff and in particular, security guards need to be very careful and ensure that the above criteria is fulfilled if they intend to arrest a suspected shoplifter and even then the arrest may be considered to be unlawful unless the subject of the arrest is informed of what is being done doing as soon as is reasonably possible.
The Claimant's civil trial for damages was heard by a jury. They returned a unanimous decision and agreed that the major retailer had not wrongfully arrested and/or falsely imprisoned the Claimant. The claim was dismissed.
Legally retailers are placed in a difficult position by shoplifters. Not only is protecting stock a serious issue but arguably they face a greater problem when they catch a shoplifter in the act (or at least have a reasonable suspicion that they have). Security colleagues and other personnel need to approach such situations carefully. They need to understand what they can and cannot do before they try to arrest or detain a shoplifter.
This is a complex area of law and represents a potential minefield for retailers, however when it comes to the issue of arrest or detain there can only be one answer legally and that is arrest first.