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The Consumer Action Group will never condone theft in any way and we feel that all alleged acts of shoplifting be dealt with by the relevant people. The police.

 

If a store fails to get the police involved then that should be the end of the matter.

 

If goods stolen are not fit for resale, the store should seek compensation for the loss of the goods. If they choose not to then that is their choice.. Many items stolen are low value so to seek the value of the goods through the courts is not cost effective to the store so what do they do? They pass the responsibility to a civil recovery company.

One such Company is Retail Loss Preventionlink3.gif.

 

 

One Cagger, aged 17 was detained by security staff at Primark for shoplifting. The goods were recovered fit for resale so no loss was incurred by Primark.

 

 

After receiving the usual letters from Retail Loss Preventionlink3.gif (RLP) which the Cagger ignored, what followed can only beggar belief. RLP wrote to this persons parents.

 

The thread is HERE

 

The post containing the letter is HERE

 

This is a first for CAGlink31.gif and further scrutiny is required. This letter clearly states:

 

 

“Under the provisions of the DPA we are required to judge whether the juvenile fully understands the implications of this action and the potential consequences. In order to ensure we have considered all aspects and been fully compliant, we now write to you to advise you on the incident.”

 

 

This requires examination. What steps did RLP take to ensure that they followed the Data Protection Act. The Cagger is 17 so 'should' understand the implications. Are RLP saying that they believe this person hasn't the mental capacity to judge for themselves the implications? How would they know having never had any contact with the Cagger? Is it purely because the Cagger ignored all the previous letters? Is this a cynical attempt by RLP to shame the Cagger into paying this speculative invoice?

 

For the avoidance of doubt, in terms of capacity, it is usually presumed that an individual has capacity unless there is substantive evidence to the contrary. RLP cannot say that they have considered all aspects and been fully compliant because they have acted only on the information received from the shop staff - who are as qualified as RLPlink3.gif are to decide, i.e. not at all.

As this is sensitive personal datalink3.gif, RLP would need the permission from the Cagger to write to another person. Did they have this permission? The Human Rights Act gives everyone an expectation of privacy. Did RLP consider the HRA before writing the the parents?

 

From information gleaned from the Cagger, nothing was signed at the store so there was no permission sought to divulge sensitive personal datalink3.gif.

There are also some serious implications for RLP if they have failed to ascertain that the Cagger does not come from a 'vulnerable' household. What checks did RLP make as to whether the family situation was stable and did not contain a history of abuse (either mental or physical).

 

 

There is also the Mental Capacity Act 2005 which based upon the above letter has been ignored.

 

 

The five key principles in the Act are:

 

  1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
  2. A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
  3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
  4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
  5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

 

 

 

http://www.justice.gov.uk/protecting...l-capacity-act

 

While the above act generally refers to adults, children and young people(16/17) are also covered.

These are the guidelines.

 

http://www.direct.gov.uk/prod_consum.../dg_186484.pdf

 

Section 12 deals with children and young people.

 

If a juvenile is arrested by the police they are entitled to have an appropriate adult present. This does not necessarily mean the parents. Any responsible adult will do. RLP seem to have forgotten that and gone straight to the parents.

 

If the security staff felt that the Cagger was not of a mental capacity to deal with this matter, why did they not get an appropriate adult to be present?

 

 

Even in RLPs own advice/FAQs for under 18s their responsibilities are already known to them so 'if' they have ignored their own advice,where does that leave them?

 

 

adviceU18.pdf

 

Point 4 in their own document is very striking as it would seem they have gone away from their own rules.

 

On the 15th April, I took it upon myself to contact Primark regarding this matter. I didn't identify anyone but wanted them to investigate this matter. What follows in their responses.

 

Thank you for your email.

 

I would appreciate if you could send on a copy of the letter from RLP and I will have this fully investigated.

 

 

As the letter was on open forum, I copied them into the thread. What came next beggars belief.

 

17th April

 

I would like to acknowledge receipt of your email.

 

I confirm that this will now be passed onto the relevant department who will be in touch in due course.

 

 

Excellent. Or so I thought.

 

This arrived the same day.

We acknowledge receipt of your email below that our client Primark has forwarded to us.

 

We will respond in full on Tuesday 22nd April 2014 and advise you of the process agreed with the ICO with regards to Juveniles.

 

 

Which department was dealing with this matter? RLP!

 

Primark have abdicated all responsibility to RLP. Not once did they offer any explanation for their agents actions.

If you are asked to deal with any matter via private message, PLEASE report it.

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True to their word RLPlink3.gif did reply. I have already made some comments in blue

 

 

Our client, Primark, has forwarded your emails dated 15th and 17th April, regarding a case we are instructed on.

We understand that you believe there may be a breach of the Data Protection Act 1998 (“DPA”)

 

If the Defendant wishes to identify him/herself, either directly to ourselves or to our client, we can investigate the matter.

If the Defendant wishes there to be an investigation, it would be of assistance if they advise what breaches of the DPA they believe have taken place.

 

Without the actual case details it is not possible to respond specifically.

We can however, respond in general terms regarding the Data Protection Act (DPA) 1998

and our dialogue with the Information Commissioner’s Office (ICO) on the subject of juveniles.

 

 

I bet they really know who the OP is as they spend hours trawling

 

 

During our discussion with the ICO in 2010 regarding the rights of juveniles,

there were three fundamental principles that needed to be considered,

the best interests of the juvenile, the protection and care necessary for the wellbeing of juveniles and the right to privacy.

 

Data Protection rights should only be exercised by a representative on the juveniles behalf

if they are not mature enough to understand those rights or if they have given consent for a representative

to exercise them on their behalf.

 

Is 17 not mature?

 

Where a parent or guardian is already aware, or where the juvenile has given consent,

or where a juvenile does not have the mental capacity from the outset,

 

(there is no specific provision in the DPA, the Mental Capacity Act 2005 or in the Adults with Incapacity (Scotland) Act 2000,

enabling a third party to exercise rights on behalf of such an individual ,

it is reasonable to assume that an attorney with authority to manage the affairs of an individual will have the appropriate authority)

 

there is no issue in communicating with parent or guardian on the juvenile’s behalf.

 

Attorney??

 

Where subsequently, consent is given or where an incapacity becomes known,

again there is no issue in communicating with parent or guardian on the juvenile’s behalf.

 

As a human being, the juvenile has a right to privacy.

It is a fundamental data protection principle that the DPA confers rights on the data subject,

regardless of whether he/she is an adult or child.

 

Where a juvenile is mature enough, then you should respond to the juvenile rather than a parent.

 

What matters is that the juvenile is able to understand in broad terms what the communication means.

This then gives rise to whether the child is able, in broad terms, to understand the implications.

 

The key is therefore the relative maturity and level of understanding of the juvenile.

 

A juvenile’s immaturity makes them vulnerable and this must be compensated by adequate protection and care.

There needs to be some consideration of the best interests of the juvenile.

Factors which should then be considered include among other things;

 

 

  • The juveniles level of maturity and ability to make decisions
  • The nature of the personal datalink3.gif
  • Any court orders relating to parental access or responsibility that may apply
  • Any duty of confidence owed to the juvenile
  • Any consequence of allowing those with parental responsibility access to the juvenile’s information
  • Any detriment to the juvenile if individuals with parental responsibility cannot access the information
  • Any views the juvenile has on whether their parents should have access to information about them

What about the detriment that may happen to the juvenile? Surely they should have this responsibility too

 

There are therefore competing interests between the juvenile’s rights to privacy and the best interests of the juvenile.

 

Who decides?

 

 

The agreement reached with the ICO, in order to best manage all competing interests

was for RLPlink3.gif to write in the first instance to the juvenile, thereby protecting their right to privacy.

 

Where there was no response, the second letter was to advise the juvenile that there needed to be an assessment

of their capacity to understand due to their age vulnerability and so their parents or guardian may be contacted

due to the complexity of the data and the implications it could have upon the juvenile.

 

This provides for any juveniles who do not want their parents contacted for any reason the opportunity to request

no such contact is made thereby affording protection of any consequences and allowing the juvenile’s views to be taken into account.

 

 

So basically, contact RLPlink3.gif or we will shame you to your parents

 

 

The ICO considered that bearing in mind the nature of the data,

which essentially requires a juvenile to make a decision relating to legal proceedings,

and which has the potential to cause detriment to the juvenile, needed to be balanced carefully.

 

Where there is still no response from the juvenile and no request not to contact parents or guardian,

a letter is sent addressed to the parent or guardian thereby protecting their best interests as they are putting themselves at risk of proceedings,

and may also lose the opportunity to provide any explanation or defence to ensure that the data we hold is accurate.

 

 

 

What legal proceedings? RLP cannot take this action on their own and as we all know, Primark do not do court action.

 

 

I hope this addresses your concerns and clarifies matters.

 

Constructive comments only please. Don't give RLP any ammunition.

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

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If the Defendant wishes to identify him/herself, either directly to

ourselves or to our client, we can investigate the matter.

Is this a case they are taking to court? The use of the term 'Defendant' is what makes me ask.

 

On the main question, why doesn't it all apply to everyone. How can RLP know that each and every person they write to doesn't need their mental capacity assessed if there's no response?

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They use words like "defendant" inappropriately, hightail - until a claim form has actually been issued then there is no "defendant".

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F me, RLP are now prosecuting barristers

not some dodgy solicitor sitting in an office churning out threatening letters.

 

I would love to see a copy of that agreement with the ICO,

I presume that a FOI request to the ICO will provide the necessary information

 

Have RLP told the ICO that they are capable of launching criminal

or civil legal proceedings off their own back or have they told them their tur position,

 

they demand people pay them money without any contractual obligation to do so.?

 

Can RLP start a civil claim against a juvenile for a debt due to a breach of contract? NO and they know this

 

Does the failure of any individual to give permission to share data

mean that RLP can claim the right to do so on the grounds that they know best

or is it simply that they are trying to justify breaking the law.

 

If RLP are holding incorrect data they should have procedures in place

to recify that rather than trying to bluff their way out of trouble.

 

What a bunch of tools.

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They use words like "defendant" inappropriately, hightail - until a claim

form has actually been issued then there is no "defendant".

That's what I thought but I don't like to assume.

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As the original recipient of this letter had not given consent for personal and sensitive information to be processed and disclosed, RLP are indeed in breech of Schedule 2 of the DPA - Having scanned the entire text of the DPA, there are no provisions contained within that would allow disclosure.

 

Ms Lambert is quite welcome to quote the relevant sections and paragraphs (providing links) that allow her to disclose sensitive personal information. In the meantime, I would like to draw her attention to paragraph 10 of the DPA and point out that she is neither engaged in the administration of justice nor the detection and prevention crime.

 

I would even go as far as to say; As written informed consent had not been given, the processing and disclosure of any data is unlawful by both Primark and RLP.

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F me, RLP are now prosecuting barristers not some dodgy solicitor sitting in an office churning out threatening letters.

 

RLP aren't solicitors, dodgy or otherwise; they aren't any sort of legitimate law firm, just speculative invoicers.

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If the person concerned did not have the mental capacity to understand, then clearly RLP should not be pursuing them. End of. Seems to me that they shot their shoddy argument in the foot.

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This is jackie we are talking about. The same woman who tried to tell a judge that he was wrong and she was right when she lost a case that pretty much stopped her ever chasing a claim in court again.

Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

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RLP aren't solicitors, dodgy or otherwise; they aren't any sort of legitimate law firm, just speculative invoicers.

I thought Jackie was a solicitor (once). I am well aware that RLP have no legal standing and are not solicitors not mambers of ACPO or ICO or MI5 or whoever they are acting as consultants to this week.

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I believe it must have assumed that a 16/17 yr old is incapable of understanding when s/he is addressed with b@@@****, is there a known tort in taking the sensible option of not responding?

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I believe it must have assumed that a 16/17 yr old is incapable of understanding when s/he is addressed with b@@@****, is there a known tort in taking the sensible option of not responding?

There is the Court of Appeal decision Roberts v RBS http://www.bailii.org/ew/cases/EWCA/Civ/2013/882.html which supported a debtor's right not to communicate with the creditor and that harassment requiring contact was not legitimate. The creditors course of action was through the courts.

As RLP don't have a cause of action they are prevented from taking civil action (that would have to be Primark) and I believe that criminal action would require CPS approval although that requirement may have been relaxed as the successive governemnts seem intent on handing over all control to big business.

In any case RLP should not refer to anyone as a defendant unless criminal charges have been brought. In a civil action the correct term would be respondent.

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In any case RLPicon should not refer to anyone as a defendant unless criminal charges have been brought. In a civil action the correct term would be respondent.

 

I think that only applies in an appeal (i.e. the appellant and respondent)

 

The CPR uses the term Claimant and Defendant.

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A small update to this.

 

I contacted the ICO regarding the talks RLP had with them regarding juveniles.

 

I have had a response saying that they will treat this query as an FOI request and will respond to me by the 21st of May.

 

Whether they will supply anything of value? Anyones guess!

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

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It will be interesting to see what the ICO has to say :)

Have we helped you ...?         Please Donate button to the Consumer Action Group

 

Uploading documents to CAG ** Instructions **

 

Looking for a draft letter? Use the CAG Library

Dealing with Customer Service Departments? - read the CAG Guide first

 

1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE

2: Take back control of your finances - Debt Diaries

3: Feel Bullied by Creditors or Debt Collectors? Read Here

4: Staying Calm About Debt  Read Here

5: Forum rules - These have been updated - Please Read

 

 

BCOBS

 

2: Does your Bank play fair - You can force your Bank to play Fair with you

3: Banking Conduct of Business Regulations - The Hidden Rules

4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly

5: Fair Treatment for Credit Card Holders and Borrowers - COBS

 

Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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There is the Court of Appeal decision Roberts v RBS http://www.bailii.org/ew/cases/EWCA/Civ/2013/882.html which supported a debtor's right not to communicate with the creditor and that harassment requiring contact was not legitimate. The creditors course of action was through the courts.

As RLP don't have a cause of action they are prevented from taking civil action (that would have to be Primark) and I believe that criminal action would require CPS approval although that requirement may have been relaxed as the successive governemnts seem intent on handing over all control to big business.

In any case RLP should not refer to anyone as a defendant unless criminal charges have been brought. In a civil action the correct term wkould be respondent.

 

 

 

 

 

I'm sorry but that last part is nonsense.

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  • 3 weeks later...

Well, had a response from the ICO and as expected, nothing more.

 

Further to our acknowledgement of 6 May 2014 we are now in a position to provide you with a response to your request for information.

 

As you know we have dealt with your request in accordance with your ‘right to know’ under section 1(1) of the Freedom of Information Act 2000 (FOIA), which entitles you to be provided with a copy of any information ‘held’ by a public authority, unless an appropriate exemption applies.

 

Request

 

In your email of 22 April 2014 you asked us (amongst other matters) to provide you with the following:

 

"…The email above mentions talks between Retail Loss prevention in 2010 and yourselves. Are you able to clarify what was said and the actions taken in this case.”

 

Part of your email to us is not a freedom of information request because it is asking for comment on the matters raised.

 

Information Not Held

 

We can confirm that we do not hold any information that falls into the scope of this request.

 

Having consulted with colleagues in our policy department and carried out searches on our document management system (Meridio), we can confirm that we do not hold any information relating to discussions with Retail Loss Prevention in 2010 on this matter.

 

It is quite possible that we dealt with this matter within our complaint system, as a DPA request for assessment. However, having searched our electronic case management system (known as ‘CMEH’), we have been unable to locate any information within the scope of this request.

 

This may well be because you are requesting information that could have been held on our casework system in 2010. Our retention policy means that we are not able to retain the vast majority of cases indefinitely. Electronic case files are usually destroyed two years after the last item of correspondence. Where the information held within the case file meets any of the relevant preservation criteria the case will be held for 6 years after the last correspondence.

 

Therefore after looking into your request we are unable to provide you with the information you are seeking as we do not hold it. I am sorry that we cannot be of more assistance on this occasion.

 

So, it may be the fact that this was mere correspondence between RLP and the ICO and as such the criteria for storage is just two years meaning that they won't have the details.

 

Where that leaves us is unclear. I am fairly certain RLP won't disclose the correspondence.

 

All that we can do is where any person under 18 comes here for help is to tell them to write to RLP with a two liner.

 

1. Any liability to you or any company you claim to represent is denied.

 

2 Permission for you to share any of my personal data is denied.

If you are asked to deal with any matter via private message, PLEASE report it.

Everything I say is opinion only. If you are unsure on any comment made, you should see a qualified solicitor

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