# Why British store staff don't apprehend shoplifters There was [a high-profile case recently](https://www.bbc.co.uk/news/videos/clyxq49n57ro) in which a shop manager was fired from his job for attempting to arrest a shoplifter. The reason his employer gave for this manager's dismissal was that it contravened the store's policy on handling shoplifting. There was an immediate outcry, lamenting that Britain had become "soft on crime" and that we were "prosecuting the victims, not the criminal". Back in the day (whenever "the day" was) a person who tackled a criminal would be praised, people said, not punished. It's true that stores have become increasingly reluctant to have their staff apprehend shoplifters -- even the security guards who are hired to prevent crime. I will argue that this isn't because we've become "soft on crime" -- it's because criminals have become increasingly aware of the law, which was always rather inadequate. The law governing the arrest of alleged criminals has scarcely changed in the last forty years. The powers of a private citizen (including a security guard) to make an arrest -- for shoplifting or anything else -- are set out in [s.24A of the Police and Criminal Evidence Act 1984](https://www.legislation.gov.uk/ukpga/1984/60/section/24A) Subsection (1) covers offences that _are being_ committed, right now: > (1) A person other than a constable may arrest without a warrant— > > ... > > (b) anyone whom he has reasonable grounds for suspecting to be committing an indictable offence. Subsection (2) covers offences that _were committed_ in the past: > (2) Where an indictable offence has been committed, a person other than a > constable may arrest without a warrant— > > ... > > (b) anyone whom he has reasonable grounds for suspecting to be guilty of it Subsection (3) sets out some restrictions to this right: > (3) But the power of summary arrest conferred by subsection (1) or (2) is exercisable only if— > > (a) the person making the arrest has reasonable grounds for believing that > for any of the reasons mentioned in subsection (4) it is necessary to arrest > the person in question; and > > ... > > (4) The reasons are to prevent the person in question— > > ... > > (d) making off before a constable can assume responsibility for him. So it's clear that security guards, and everybody else, have -- and have had for decades -- a right to apprehend a person who is clearly and unequivocally committing a crime. Nothing has really changed at the level of statute law. However, it's important to understand that furtively stuffing the shop's goods into your pockets is probably not, in itself, a crime. To commit theft -- including shoplifting -- you must, according to the [Theft Act 1968](https://www.legislation.gov.uk/ukpga/1968/60/contents) "dishonestly appropriate property belonging to another..." It's highly questionable whether concealing shop goods this way _by itself_ amounts to "appropriation"; merely keeping an item in your hand surely doesn't. This lack of certainty that a crime is actually being committed is a problem that applies not only to store security guards, but also to the police. It's better, in a sense, for both to wait for the shoplifter to leave the premises with the purloined goods. To see why there's a specific problem for security guards in this respect, we need to look at the related provisions regarding the power of arrest by a sworn constable in [s.24 of the same Act](https://www.legislation.gov.uk/ukpga/1984/60/section/24). The powers of a constable to arrest a suspected thief are scarcely greater than those of a private citizen, except for this provision: > (2) If a constable has reasonable grounds for suspecting that an offence has > been committed, he may arrest without a warrant anyone whom he has reasonable > grounds to suspect of being guilty of it. This covers situations in which a crime _might not have been committed at all_, and has two "reasonableness" tests, not one. Why is this such a big deal? Well, consider a situation where an alleged shoplifter takes his concealed goods out of the shop without paying, and the security guard apprehends him in the car park. There are two possible outcomes: 1. The suspect is guilty of theft, and so convicted, or 2. The security guard is at risk of legal action for unlawful arrest. There really are no other possibilities. Because the citizen's arrest provisions don't allow the security guard "reasonable grounds to suspect" an offence was committed, it would be exceptionally dangerous for him or her to carry out an arrest on the hopeful expectation of a later conviction. If the suspect is later tried, and not convicted, then guard _has_ carried out an unlawful arrest, and is in legal jeopardy. The same would not be true for a police officer, who is protected by the additional test of reasonableness. Why might a suspect who appears obviously to be guilty not be convicted? The usual reason is his explanation in court: "Oops -- I forgot to pay for that bottle of whisky. I put it in my coat pocket because my shopping basket was full. I'll try to be more careful in future." This is a winning argument for the shoplifter because the necessary "dishonesty" to sustain a theft conviction is hard to prove. An innocent mistake, however unlikely, however dumb, isn't dishonest. If the suspect claims an innocent mistake, it's difficult to prove "beyond reasonable doubt" that he was dishonest. Although the law in this area hasn't changed much in decades, our collective awareness of its deficiencies definitely have. Criminals and their lawyers have become increasingly aware of the ways in which an arrest can be deemed unlawful, and of the remedies available to the "victim". Even if the security guard isn't prosecuted for assault and battery when his suspect isn't convicted, he's still at risk of a civil action for _trespass to the person_. Because it is a civil action, the standard of proof against him is lower. More worryingly, though, is that the principle of _vicarious liability_ allows the alleged shoplifter to take action against the employer -- the store, in this case. This has _always_ been the case. What's changed is that, after forty years living with the same legislation, everybody now knows it. And that's why stores don't let their staff apprehend shoplifters. [→ Capsule home](index.gmi)