Falsely accused of shoplifting and banned from store

[Janunu]

Hi, I wonder if any one can advise, I have just received a message from a friend who advised she had just been barred from the local village shop which is also the post office, she said she was paying for her items with her young daughter and her mother and forgot one item as it was on the pushchair, this is a local Nisa shop, the owners son came over and accused her of stealing, despite my friends protests and she hadn't left the shop yet either, she felt intimidated, humiliated and was bullied into signing a form, I dont know what this form was, but is there anything she can do???

[AndyOrch]

Ask the store for a copy.

[Conniff]

Thread moved to General Retail

[Last Of The Time Lords]

Well clearly it isn't theft. Theft is dishonestly appropriating property belonging to another with the intention to permanently deprive. As per the Theft Act 1968 S.1

 

Actus non facit reum nisi mens sit rea - An act is not necessarily a guilty act unless it is accompanied by a guilty mind.

 

If they maintain the theft stance hit them with that and also amongst many cases there is R v Warner (1970) 114 S.J. 971 in the Court of Appeal where it was held that the Theft Act 1968 retains in S.1 the basic conception that to constitute theft, the thief must intend to permanently deprive the owner of the goods.

 

Also a prima facie case for defamation of character. A defamation is the publication of a statement which reflects upon a persons reputation and tends to lower him in the estimation of right thinking members of society generally or makes that person shun or avoid him.

 

For a defamation action to succeed you must show that the words were defamatory, that they referred to the claimant and that they were spoken/published by the defendant to at least one other person besides the claimant.

 

Not suggesting for a moment that such an action would be an easy win because defamation actions are highly unlikely to be done on a no win no fee basis and there are many defences that can be argued. Also they get very costly.

 

The point is just intimidate them with the law. What goes around comes around!

 

P.S, if quoting a criminal case, it isn't spoken as R versus Warner. It would be Crown against Warner.

[steampowered]

Unfortunately shops are generally allowed to ban who they want, as long as it is not discriminatory, which makes it very difficult to challenge false accusation or bans. The only thing that might help is the shop's status as a Post Office, I wonder if the PO has some sort of policy on access which your friend might use.

 

I do wonder what your friend signed. It was foolish to sign a piece of paper without knowing what it is. There isn't much she can really do about that now. I imagine the form will just be kept on their records.

[renegadeimp]

The question remains... does the shopkeepers son have any authority over who is allowed entry to the shop and subsequently the post office. Just because he is the son of the shopkeeper doesnt mean he has any rights. He would need to be in a position of authority to exclude the person from the premises. If he lies and makes things up, you could have a case for discriminatory behaviour or otherwise.

 

It's also NOT theft unless the person who is suspected of theft leaves the shop with said item, or attempts to leave the shop with the item.

[Last Of The Time Lords]

It's also NOT theft unless the person who is suspected of theft leaves the shop with said item, or attempts to leave the shop with the item.

 

Not necessarily. If I walked into Tesco picked up a small bottle of vodka and placed it in my coat pocket before walking down another aisle inspecting further items, there would be enough there to secure a conviction of shoplifting.

 

I would have dishonestly appropriated the goods which belong to tesco with the intention to permanently deprive. The mens rea for intention to permanently deprive is seen in S.6(1) of the Theft Act 1968. Also see R v Fernandes [1996] 1 Cr App Rep 175 where the Court of Appeal observed that the critical notion in S.6 is whether a defendant intended to treat the thing as his own to dispose of regardless of the others rights.

[renegadeimp]

Actually last, it wouldnt. They would have a suspicion and watch you around the store, but they wouldnt do ANYTHING else until you attempted to leave the store. The suspected person can simply say that they put it there due to their bags being full or they were overloaded etc. Been done hundreds if not thousands of times. Thats why almost all supermarkets use the policy of stopping them upon attempting to leave the store. Same with "trolley pushouts", or "boxed trolleys".

[Last Of The Time Lords]

Actually it would. Some stores take that approach because it is the caught red handed approach and would make life easier to prosecute but what I stated is correct.

 

You have to remember dishonesty. The test for dishonesty laid down by the House of Lords in R v Ghosh [1982] QB 1053 by Lord Lane CJ is as follows:

 

1: Was the defendants conduct dishonest according to the standards of ordinary reasonable people?

 

If not, then acquit.

 

If yes then apply: 2: Was the defendant aware that his conduct would be regarded as dishonest by ordinary reasonable people?

 

If no, then acquit but if yes, the defendant may be treated as having acted dishonestly.

 

The Court of Appeal later indicated in R v Price [1989] 90 Cr App R 409 that the second test should only be put to the jury where the accused raises the issue that he was unaware anyone else would regard his conduct as dishonest.

 

A person who places an item in their pocket on the basis of the trolley or bags being full or being overloaded is prima facie dishonest in their actions. Informing/asking a member of staff would demonstrate honesty. I have seen/heard of low level convictions on these grounds as opposed to reported cases.

[renegadeimp]

Almost every single supermarket in England and Wales do not "collar" a suspected shoplifter until they are about to leave the store or are heading to the exits. This is due to what i described above. There is very little in difference between a person putting a bottle of vodka in your pocket or carrier bag, and performing a boxed trolley. While technically you are right, almost no supermarket will go after a shoplifter until they are past the checkouts and on their way to the exits. There are just too many "what if " scenarios, and excuses a suspected shoplifter could use. If they have been watched and havent paid, then theyve gone past the final checkouts or kiosk, then they have absolutely NO excuse at all. It's a much easier catch for the security guards.

 

However, i think we are drifting off topic right now, as the OP said that the person in question hadnt left the store. The shopkeepers son simply went up to her in the store.

[Last Of The Time Lords]

Yes this is going off topic somewhat but just for the record I don't doubt the policy of the supermarket as you suggest. My posts were all about what constitutes theft from an academic perspective, i.e. the actus reus and mens rea of the offence and using case law to give an idea of how it has developed. I find it very interesting but then I have been studying law for 4 years and finish my degree in May.

 

Bear with....

Edited March 31, 2013 by Last Of The Time Lords

[ploddertom]

The only thing that might help is the shop's status as a Post Office, I wonder if the PO has some sort of policy on access which your friend might use.

 

I have had this in the past when I barred someone from our shop which also had a PO. The person being barred wrote a stinking letter to the PO about it - the fact they left out why they were barred was of no consequence. Visted by one of the PO bigwigs who commenced to tell me I could not stop them using the PO as it was a public service as they needed to collect their benefits and child allowance. I agreed they were not barred from the PO just the shop and he thought he had won until I pointed out the person had to enter the shop to gain access to the PO - at this point he gave up and left.

[Last Of The Time Lords]

I have done further reading and whilst you can if you wish tell the owner off for the fact his son made a false accusation because we are clear it isn't theft, as others rightly say, a shop can ban anyone they like even without making accusations of theft. This scenario has happened recently to someone I know funnily enough but only just got wind of it via someone else! If my local shop told me they didn't want to serve me, they can ban me from the store simply because they don't want to contract with me. They don't have to state that reason, they can just ban me. Unless I fall into a category that means they could be banning me because I am disabled or from an ethnic minority for example, nothing I can do.

 

Worth voicing an opinion via letter at least expressing your views on the false accusation though.

 

Would like to know what the form is too out of curiosity.

[assisted blonde]

I dont think it really matters if the shop keepers son had the initial authority, most parents would back their children up anyway,

[andydd]

I agree with above, why sign a piece of paper, what did it say ?. If she was going to be banned anyway, dont understand it.

 

I also agree that theft occurs when the person leaves the shop, not before. This is why the crime of TWOC (taking without consent) involving cars exists.

 

Andy

[Last Of The Time Lords]

I agree with above, why sign a piece of paper, what did it say ?. If she was going to be banned anyway, dont understand it.

 

I also agree that theft occurs when the person leaves the shop, not before. This is why the crime of TWOC (taking without consent) involving cars exists.

 

Andy

 

Trust me the theft can occur before the person has left the shop, as per the case law above and the Act itself, the theft can be complete before the person has left the store.

 

Not sure what you are getting at with TWOC though. With TWOC, it is a strict liability offence with no need to prove the mens rea. In simple terms, there does not need to be an intention to permanently deprive. The vehicle must move but does not need to be driven.

 

You can't take the statutory meaning of that offence and apply it to shoplifting. I have studied criminal law and the theft can be complete without the need to leave the store or attempt to.

[BazzaS]

 

I have studied criminal law and the theft can be complete without the need to leave the store or attempt to.

 

On an academic basis, you may well be correct.

 

However, in practice retailers usually apply the SCONE test to ensure their staff (and the retailer under vicarious liability) don't end up facing a claim for unlawful arrest and / or false imprisonment.

 

The hazard of "I have studied criminal law" but looking like you aren't familiar with its application is that you may be perceived as an academic with no understanding of the real world : useful for a law exam, but not much help with practicalities.

[Last Of The Time Lords]

On an academic basis, you may well be correct.

 

However, in practice retailers usually apply the SCONE test to ensure their staff (and the retailer under vicarious liability) don't end up facing a claim for unlawful arrest and / or false imprisonment.

 

The hazard of "I have studied criminal law" but looking like you aren't familiar with its application is that you may be perceived as an academic with no understanding of the real world : useful for a law exam, but not much help with practicalities.

 

On the contrary I am well aware of how each case is judged on its merits in real life. The example I gave without actually leaving the store has resulted in convictions at magistrates level (unreported cases), I have seen/heard of these instances. I can also state that false imprisonment is rather unlikely though possible depending upon the circumstances and quite clearly a shop cannot be sued for wrongful arrest because only the police carry out the arrest. To sue in tort requires establishing all the elements for a duty of care which is too long winded to go into now.

 

An arrest in the circumstances I gave could turn out to be No further action depending upon the circumstances but there would need to be a very strong case indeed for wrongful arrest.

 

The hazard of assuming I have no understanding of the real world is all too clear. I actually have many years work experience and am a part time student not straight from school. I have worked in an electrical store and in a legal environment. My opinion has at all times been an informed one.

 

P.S, I stated in an earlier post that I was discussing the academic aspects of theft.

[renegadeimp]

As i said before, until the person attempts to leave the store, or goes past the final point where they are able to purchase any goods, then no theft has been committed. While in theory you could claim they have, in practice that is very rarely the case.

 

I work for a major UK supermarket chain. You can watch people in almost any store walk down an aisle, and put something right into their pocket. The person can even stand there staring at you while they do it and theres nothing the store can do. Sure, there is heavy suspicion, but until they go past the checkouts or attempt to leave the store without paying, there is NOTHING that can be done. Even the police will not intervene as no crime has been committed at the time.

 

The store can easily call the police after talking to the suspect and tell them that they are no longer allowed in store, but we still cant call them a shoplifter, as they havent actually stolen anything.

 

I see this almost every day no matter what store i go to. It is highly frustrating, but at the same time, i can see the polices reasonings and why the policies are in place.

 

 

Now, of course the shop can ban the person for whatever reason they like as its not discriminatory, and this is what i think would happen in the OP's case. If the store keeps their claim of shoplifting without ANY proof as already outlined, then there may be a case to take the shop to court.

[Last Of The Time Lords]

I have seen real world convictions on these grounds in my line of work and the theft is committed before they have left the store. Just because a store does not take action or even the police for that matter, does not mean the actual theft has not been committed. It is not about claiming they have, they have in my example completed the offence.

 

Contrary to another post I do have real world knowledge but a statement that there is no theft until they have left or attempted to leave clearly reflects upon the academic aspect of theft and accepted case law. This statement is therefore wholly wrong.

 

What could they sue the shop for? In the example I gave, even if the police did not prosecute, i.e. arrested but NFA, I would love to know how they would sue the shop.

[renegadeimp]

Theft MAY have been committed but you would have a damn hard time proving it until they went through the last point of payment.

Edited April 1, 2013 by renegadeimp

[Last Of The Time Lords]

Theft MAY have been committed by you would have a damn hard time proving it until they went through the last point of payment.

 

I agree it would be more difficult and I also agree with the store policy you outlined because it makes life so much easier. My point is strictly relating to what constitutes a theft and completes the offence. Using my original example, if I put the bottle in my pocket and I knew full well I was going to leave the store with it but a member of staff apprehended me in the aisle before I attempted to leave or actually left, that is the theft but as you point out it gives the defendant the chance to drum up excuses. If charged to court, whether those excuses work or not could depend on what occurs during cross examination or could for example depend on bad character evidence. If the defendant has committed many shoplifting offences before, bad character evidence can be introduced despite the prejudicial effect it may seem to have - Unless of course the CPS are using it to bolster a weak case, then it won't be allowed - R v Hanson 2005.

 

Interestingly in R v Morris [1993] AC 442, the defendant had swapped price labels on some meat and went to the checkout hoping to pay the cheaper price. He was stopped before the checkout and eventually convicted of theft not even attempt theft but actual theft.

 

He appealed and the House of Lords dismissed the appeal. The theft came at the time of swapping the labels. The intention was there as per S.6 of the Theft Act 1968 because he was treating the thing as his own to dispose of regardless of the others rights.

 

I have seen this sort of thing and I speak with experience of real life within the court system through my line of work, working in a retail store and from the academic view.

 

It truly is a complex and fascinating subject.

 

P.S, any excuse the defendant has as to it not being theft for whatever reason, shall be for him to prove.

Edited April 1, 2013 by Last Of The Time Lords

[andydd]

The fact remain that in real life (and not just text books), a store owner/detective will nearly always wait untill the alleged shoplifter leaves the store before apprehending them, to do so earlier is fraught with all sorts of problems, the main one being proving that they did indeed intend to steal the item, they could simply argue, yes I put an item in my pocket but was on my way to the checkout to pay for it.

 

Andy

[Last Of The Time Lords]

The fact remain that in real life (and not just text books), a store owner/detective will nearly always wait untill the alleged shoplifter leaves the store before apprehending them, to do so earlier is fraught with all sorts of problems, the main one being proving that they did indeed intend to steal the item, they could simply argue, yes I put an item in my pocket but was on my way to the checkout to pay for it.

 

Andy

 

 

My work within the court system sees real life examples along these lines not just text books and don't forget the cases I have quoted are real life, not fictional. It is much easier to let them leave before apprehending them. The excuse of putting it in my pocket but was on the way to the checkout to pay for it might well work I agree but is prima facie dishonest as per the test I outlined several posts ago from R v Ghosh. An honest person would not put it in their pocket, they would carry it or use a basket or trolley. If the said baskets or trolleys were full then honesty could be demonstrated by asking a member of staff.

 

Whether or not the excuse worked can come down to a myriad of factors when argued in court. You seem to forget Andy that I speak with REAL LIFE experience of convictions on this basis. I fully acknowledge that they are dwarfed by instances where they have left the store with the goods but it does happen. I see convictions for thefts from hundreds of stores right across the county and I also see instances where convictions and/or sentences are taken to appeal.

 

One more thing to bear in mind is that my lecturer of criminal law has many years practical experience too. He was a criminal barrister before becoming a lecturer and has defended people accused of crimes. He taught me this and how it works, whatever goes on day to day, the point I made is correct and I have supported it with authority. The fact that I have seen it with my own eyes through my work just makes it clearer still.

Edited April 1, 2013 by Last Of The Time Lords

[von63]

My work within the court system sees real life examples along these lines not just text books and don't forget the cases I have quoted are real life, not fictional. It is much easier to let them leave before apprehending them. The excuse of putting it in my pocket but was on the way to the checkout to pay for it might well work I agree but is prima facie dishonest as per the test I outlined several posts ago from R v Ghosh. An honest person would not put it in their pocket, they would carry it or use a basket or trolley. If the said baskets or trolleys were full then honesty could be demonstrated by asking a member of staff.

 

Whether or not the excuse worked can come down to a myriad of factors when argued in court. You seem to forget Andy that I speak with REAL LIFE experience of convictions on this basis. I fully acknowledge that they are dwarfed by instances where they have left the store with the goods but it does happen. I see convictions for thefts from hundreds of stores right across the county and I also see instances where convictions and/or sentences are taken to appeal.

 

One more thing to bear in mind is that my lecturer of criminal law has many years practical experience too. He was a criminal barrister before becoming a lecturer and has defended people accused of crimes. He taught me this and how it works, whatever goes on day to day, the point I made is correct and I have supported it with authority. The fact that I have seen it with my own eyes through my work just makes it clearer still.

.So what would happen if someone accused you falsely of stealing and having no evidence at all (because it didn't happen) and you are refused to see cctv because they say it hasn't been recorded and they the radio to other different retailers telling them they think you are a thief and being asked to leave the mall when all along you know you have done nothing wrong and the only reason you can think this person would say this about you is because you are part of a mixed race couple and not charged with any offence or cautioned and then security of the mall says you can carry on shopping because he believes you rather than the store guard.Surely i must have some rights.