Civil Procedure Rules

[emsgeorge]

Yes, but dont forget - its not theft, but fraud. Now 2 different acts. (fraud act 2006)

All you need to see now is a dishonest act - IE pulling off one label, and replacing it with another.

[PI Guy]

Originally Posted by emsgeorge

Yes, but dont forget - its not theft, but fraud. Now 2 different acts. (fraud act 2006)

All you need to see now is a dishonest act - IE pulling off one label, and replacing it with another.

Yes but its handled as if it were theft as the charge is easier.

"
Obtaining Property By Deception: Overlap With Theft

In many cases obtaining property by deception will also be theft (R.v. Gomez (1993) A.C.442, HL) and (Archbold, 21-179).
Consider:

• Theft carries a lower minimum sentence;
• A charge should describe what actually happened and reflect the true criminality;
• The indictment or charges should be as simple as reasonable possible.

Generally, charge an obtaining of property by deception under section 15, not as theft.
Charge theft when a defendant has swapped price labels on an item to buy it cheaper. This avoids the argument that where the ticket is a bar code read by a machine, there was no deception operating on the mind of the till operator."

[patdavies]

Originally Posted by emsgeorge

We use RLP at work, and having read this thread, and having had a long read through their manual:

It sounds more like a marketing leaflet than a user manual given the rest of your post below.

The 'fine' is for doing a civil wrong, or 'tort' against the retailler. They can process for theft, criminal damage, making off without payment etc.
They send a civil demand for payment, and their paperwork then says they follow it up with court action if needed.

There is no facility in civil law for a fine/penalty to be levied. This is the whole point of the threads about private parking tickets. Only actual costs/losses may be sued for.

To clear up some confusion: you DONT need to leave the store for theft, let alond a ticket swap (which used to be obtainin property by deception, and is now under the fraud act - Fraud by misrepresentation). You simply need to of attempted to pay.

There is no theft until you leave the premises without offering to pay. In your scenario, anybody who picks up an item whilst browsing could be accosted by the store staff for theft! Swapping labels is not theft, it is Fraud - and entirely different Act of criminal law

You have NO LEGAL RIGHT to have a witness present during your detention. I believe that TK Maxx (as most other retaillers) have a policy for having a female in with them if they are male security. But its only policy, not law.

This is probably because the store has NO LEGAL RIGHT to hold someone in detention, let alone question them. A citizen's arrest may be made and the accused then must be passed to the Police to be dealt with. The store has no right to force someone to accompany store staff to a particular place or part of the store (eg an office) - to do so would be false imprisonment.

[nickmcmechan]

Having had worked in Retail for a long time, I am aware that TK Maxx will pursue Civil Action with you.

You need to be confident of there being a lack of substantial evidence. If you were wrongfully arrested I would suggest you seek legal advice.

You are able to claim damages of £150 per hour for each hour you were wrongfully arrested + costs + emotional damages...

Get a Lawyer to write a letter for you...

[PI Guy]

Originally Posted by patdavies

There is no facility in civil law for a fine/penalty to be levied. This is the whole point of the threads about private parking tickets. Only actual costs/losses may be sued for.

This is probably because the store has NO LEGAL RIGHT to hold someone in detention, let alone question them. A citizen's arrest may be made and the accused then must be passed to the Police to be dealt with. The store has no right to force someone to accompany store staff to a particular place or part of the store (eg an office) - to do so would be false imprisonment.

1st Point - And that's what RLP sue for, actual costs of running a Loss Prevention Department, of an investigation, staff time spent on the case ect.

2nd point - Of course they didn't force anyone, they asked them to accompany them to say a managers office and they did so and police were called. But you are wrong if I detain someone for say theft and that person refuses to return then i am quite in my rights to detain using reasonable force to do so.

[Conniff]

But you are wrong if I detain someone for say theft and that person refuses to return then i am quite in my rights to detain using reasonable force to do so.

No you can't, that is the whole point Pat was making. You can only hold them until the police arrive, if you haven't called the police then it is kidnap.

[PI Guy]

Originally Posted by Conniff

No you can't, that is the whole point Pat was making. You can only hold them until the police arrive, if you haven't called the police then it is kidnap.

If i had to use reasonable force to detain then i would be calling the police and their guilt would be 100% proven by my eye witness evidence.

[Conniff]

What do you call reasonable force? If they refuse to go to some office then you cannot physically restrain them or that will be assualt.

[PI Guy]

Reasonable force is permitted in order to detain someone who has committed an indictable offence (it used to be called arrestable offence) and no it wouldn't be assault.

A person may use such force as is reasonable in the circumstances for the purposes of:

• self-defence; or
• defence of another; or
• defence of property; or
• prevention of crime; or
• lawful arrest.

In assessing the reasonableness of the force used, prosecutors should ask two questions:

• was the use of force justified in the circumstances, i.e. was there a need for any force at all? and
• was the force used excessive in the circumstances?

The courts have indicated that both questions are to answered on the basis of the facts as the accused honestly believed them to be (R v Williams (G) 78 Cr. App R 276, R v Oatbridge, 94 Cr App R 367 and <Archbold 19-49>).
To that extent it is a subjective test. There is, however, an objective element to the test. The jury must then go on to ask themselves whether, on the basis of the facts as the accused believed them to be, a reasonable person would regard the force used as reasonable or excessive.
In R v Martin (Anthony), TLR 1 November 2001, the Court of Appeal held that in deciding whether a defendant had used reasonable force in self-defence it was not appropriate to take into account the fact that the defendant was suffering from some psychiatric condition at the relevant time, except in exceptional circumstances which would make such evidence especially probative.
In R v O'Grady 85 Cr App R 315, it was held by the Court of Appeal that a defendant was not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which had been induced by voluntary intoxication.
It is important to bear in mind when assessing whether the force used was reasonable the words of Lord Morris in Palmer v R ,1971 A.C. 814;
"If there has been an attack so that self defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If the jury thought that that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought necessary, that would be the most potent evidence that only reasonable defensive action had been taken...".
The fact that an act was considered necessary does not mean that such action was reasonable.
Where it is alleged that a person acted to defend himself/herself from violence, the extent to which the action taken was necessary will, of course, be integral to the reasonableness of the force used.
Where the purpose of the act is alleged to have been the prevention of crime and/or the apprehension of offenders, necessity in acting may not equate with reasonableness in the choice of action deployed. This approach was confirmed in R v Clegg 1995 1 A.C. 482 HL <Archbold 19-41>.

[Conniff]

Yes, but what do you call reasonable force if they refuse to go to an office??

[PI Guy]

Well assuming that I had seen a crime (lets say theft) and they were trying to leave the scene, then that force which is necessary to detain them.

I have in the past applied restraint techniques on peoples arms, wrist etc in order to get them to a specific place ie an office or other assigned area to await the police.

BTW here is the section that deals with the use of force

Civilian Powers of Arrest

Care must be taken when assessing the evidence in a case involving the purported exercising of civilian powers of arrest. Such powers of arrest are dependent upon certain preconditions.
The principle civilian powers of arrest fall under two headings:

• the power vested in both police officers and ordinary citizens to arrest in relation to a breach of the peace (see R v Howell 73 Cr. App R. 31).
• the power conferred by Section 24 of PACE <Archbold 15-166>:
  • (a) to arrest anyone who is in the act of committing an arrestable offence or anyone whom the arrestor has reasonable grounds for suspecting to be committing an arrestable offence (S.24(4)) and
  • (b) where an arrestable offence has been committed, anyone who is guilty of having committed the offence, or anyone the arrestor has reasonable grounds for suspecting to be guilty of having committed it (S.24(5)).

It follows therefore that if violence occurs when someone purports to arrest, relying on Section 24(5), a person he suspects has committed an offence who has, in fact, not done so;

• any force used to affect the arrest may be an assault and unlawful; and
• any force used to resist the arrest may be lawful (see R v Self 95 Cr. App R. 42).

However in R v Lee, TLR 24 October 2000, it was held that when a defendant was charged with assault with intent to resist arrest, it was irrelevant whether the defendant honestly believed that the arrest was lawful.
You should bear in mind that members of the public (as well as police officers) may take action, including reasonable force, to prevent a breach of the peace, which would not necessarily involve exercising the formal powers of arrest.

[patdavies]

Originally Posted by PI Guy

Reasonable force is permitted in order to detain someone who has committed an indictable offence (it used to be called arrestable offence) and no it wouldn't be assault.

Yes, detain. Only detain - at the spot where you make a citizen's arrest. You may ask a person to return to the store or go to the manager's office. etc. but you may not force them to do so. There is nothing in your quote about civilian arrest that allows for an arrested person being forcibly removed from the place of arrest.

You may only detain someone for a short period of time, until you hand over custody to the Police Officer. You must hand over custody to a Police Officer or the arrest is unlawful. Even a PCSO may only lawfully detain someone for a maximum of 30 minutes.

You may not force someone to return to the store or go to a particular place in the store - that is unlawful and you leave yourself open to charges of kidnap. false imprisonment and assault.

If you do not call the Police or they refuse to attend and assume custody you are likewise leaving yourself open.

[patdavies]

Originally Posted by PI Guy

If i had to use reasonable force to detain then i would be calling the police and their guilt would be 100% proven by my eye witness evidence.

That's a pretty arrogant statement. Your S.9 statement would be considered like any other in the case.

[patdavies]

Originally Posted by PI Guy

1st Point - And that's what RLP sue for, actual costs of running a Loss Prevention Department, of an investigation, staff time spent on the case ect.

Strange it's always the same amount then.

And I would suggest that only the itemised and verifiable costs that can be proven to relate to the incident could be claimed - not a blanket amount that looks suspiciously like a civil penalty.

[PI Guy]

Originally Posted by patdavies

That's a pretty arrogant statement. Your S.9 statement would be considered like any other in the case.

Its not arrogant, i would be sure because i would have seen it myself.

Originally Posted by patdavies

Yes, detain. Only detain - at the spot where you make a citizen's arrest. You may ask a person to return to the store or go to the manager's office. etc. but you may not force them to do so. There is nothing in your quote about civilian arrest that allows for an arrested person being forcibly removed from the place of arrest.

You may only detain someone for a short period of time, until you hand over custody to the Police Officer. You must hand over custody to a Police Officer or the arrest is unlawful. Even a PCSO may only lawfully detain someone for a maximum of 30 minutes.

You may not force someone to return to the store or go to a particular place in the store - that is unlawful and you leave yourself open to charges of kidnap. false imprisonment and assault.

If you do not call the Police or they refuse to attend and assume custody you are likewise leaving yourself open.

IMO I think that we will have to agree to disagree on this one but all my considerable experience tells me that i'm right and you're wrong on this. Show me the piece of legislation that says i cannot do it.