Should Shop Owners Take the Law into their Own Hands?

Shoplifting is serious problem for a large number of businesses, and many store owners have become frustrated with what they see as a lack of effective action on the part of the police and the courts.

This has led some to advocate self-help approaches – from sophisticated surveillance systems and private security officers, to aggressive responses towards suspected shoplifters that goes beyond what the law permits.

Recently, a group of five teenagers was accused by the owner and an employee of a Perth IGA store of stealing bottles of iced coffee. This led to a brawl which lasted several minutes before police ultimately arrived to break it up.

During that time, a 16-year-old suspect received a knife wound in the arm and other teenagers were allegedly sprayed with pepper spray.

Police arrested and questioned three people following the brawl, including the store owner and a store employee. They are reviewing the security footage before deciding whether to lay charges.

What are a person’s rights if they are accused of shoplifting?

Security camera footage obtained by the media, alleged to be of the incident, appears to show the owner or a store employee approaching a young man who was walking down one of the aisles, opening that person’s bag, and putting his hand in to check the contents.

The law says that store personnel cannot search a person’s bag without first getting that person’s permission. They are also prohibited from physically handling objects in a person’s bag without first obtaining permission. Doing so can amount to a trespass to property.

A further difficulty can arise if a bag is searched while the suspect is still well inside the store, because doing this can make it more difficult to prove that the person intended to steal the item rather than pay before exiting.

Can a person accused of shoplifting be arrested by store employees?

Private individuals, and this includes security guards, are able to make citizen’s arrests and detain someone if they have reasonable grounds for believing that an offence has actually been committed, which in most cases means they must have seen the person take the item and have good reason to believe that they didn’t mean to pay for it.

Suspicion is not enough. And if there has been no arrest, any attempt to physically detain or search someone against their will may amount to false imprisonment and assault.

The use of reasonable force

Even when there is a valid citizen’s arrest, the store owner or employee may only use reasonable force to detain the suspect until they can hand them over to the police.

Excessive force is considered to be an assault.

If store staff use weapons such as knives, baseball bats or metal poles and the suspects are unarmed, it is obviously more likely to amount to an assault; and the same applies to pepper spray.

In Western Australia where this incident took place, private individuals can legally carry pepper spray – which is a “designated controlled weapon”. However, they are only allowed to use it for self-defence and to a limited extent.

In addition to questions of assault, the use of pepper spray to detain unarmed shoplifters can amount to a criminal offence under WA’s Weapons Act.

A person accused of shoplifting is entitled to use reasonable force to defend themselves against assault, and to avoid unlawful detention, and what is constitutes reasonable force depends upon the circumstances.

The problem with store owners taking the law into their own hands

People are obviously not allowed to take the law into their own hands.

Such conduct is not classified as self-help, but vigilantism; and there are good reasons why it is illegal.

We have a legal system that is far from perfect, but aims to ensure that all people are treated fairly and impartially, and that their rights are respected.

If you happen to be accused of shoplifting, you would expect your accuser to treat you fairly and with dignity until police arrive, and that police do the same. It is for the courts, not other civilians or police, to decide whether someone is guilty of a crime and, if so, to impose a penalty.

Circumventing the justice system

It has been reported that one startup company in the US is working with stores to offer suspected shoplifters who have been apprehended by those stores the option of paying $US320 for an online course instead of being handed over to the police.

The company claims the course will help stop people reoffending in the future. The stores are said to get a commission of $US40 for each course ‘sold’ to those they apprehend.

But some have even equated this to a form of blackmail, while others have pointed out that there can be no justice if there is no impartiality, which may occur if those administering justice have a personal interest in the outcome. They contend that it is not justice if people who can afford to pay can avoid prosecution, while those who cannot are convicted.

It is suggested that if further efforts are needed to help control shoplifting, they must be done within the context of an independent and impartial law enforcement and judicial system, with various checks and balances, and not by people circumventing the justice system or taking the law into their own hands.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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