19th May 2023
In the Financial Times magazine this weekend – and on their website (though behind a paywall) – is a fascinating and detailed article on the commercialisation of private prosecutions – especially in respect of shoplifting and online counterfeiting.
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By way of background: usually one way of explaining the difference between criminal law and civil law is that in the former a person is prosecuted by the state, while in the latter a person is sued by another person.
But with private prosecutions, a person can bring criminal prosecutions against another person.
It is an example of the private enforcement of public power.
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Of course, the hope (if not expectation) is that any abuse of these prosecutions would be dealt with by an impartial and independent court looking out for the public interest.
But such prosecutions are outside of the processes the police have of dealing with incidents, and also outside of the processes of the Crown Prosecution Service have in determining whether a prosecution should be brought.
Yes, it is possible for the Crown Prosecution Service to step in and terminate a private prosecution, but that is exceptional.
So what we have are defendants – whose cases would have been dealt with differently had the police or the Crown Prosecution Service – facing harsher sanctions at the criminal courts.
And this is done as a business, as the Financial Times spells out, for those bringing these prosecutions only get paid if they can apply for public funds at the end of a successful prosecution.
It seems the various shops and businesses which are affected by the criminality in question do not contribute to the costs of the prosecution.
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The article points to both a justice gap and to a failure to properly fill that gap.
Many of the shops and businesses nod-along with the private prosecutions because they have no confidence in the police and the Crown Prosecution Service, who in turn are not properly resourced.
And as several of those caught up in the private prosecutions have drugs problems, it can even be contended that some of the prosecutions make no real overall difference to the crime levels, just diverting crime elsewhere from the protected shops and businesses.
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The Financial Times piece is an interesting sideways snapshot of the criminal justice system.
And if you cannot afford to buy the Financial Times tomorrow, and so decide to read it inside the newsagents instead, please do remember not to walk out without paying for the newspaper.
The article will tell you why.
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As someone who has falsely been accused of shoplifting I find this alarming.
I don’t own a car but do often walk a mile to a retail park not served by buses. I guess I am therefore unusual in entering a supermarket carrying a bag bulging with shopping from a rival store and exiting without paying for those items (because I have already paid the other store).
In the worst case, a young woman chased me down the street after I exited the store and demanded that I pay for the goods as she pointed at my bulging carrier bag. I had to empty the goods on to the pavement so she could clearly see that all the items were from Lidl (thankfully they all had Lidl branding) and none from her store. She ordered me to repack my goods and stormed off seemingly both angry and embarrassed but there was no apology.
At Morrisons I have had a couple of much politer encounters where the security guard picked up on the cameras at the self service tills that I had only paid for a couple of items but once again my carrier bag was bulging. He was quite apologetic
I usually keep my receipts but, worryingly, some self-service tills fail to issue receipts when requested.
I imagine shoplifting is at record levels, but based on my experience, making false allegations also seems to be at record levels.
Did you have to empty your bags? Does she have powers to order and compel?
I am no lawyer but suspect that she had no powers to order me to empty my bags. However, I felt it was in my best interests to co-operate and demonstrate how wrong she was. If I had refused to co-operate I guess she could have barred me from entering the shop again which could have been very inconvenient although I have done my best to avoid that particular store since the incident.
Walmart in America has long had a bad reputation for assuming all customers are thieves, and sometimes physically preventing their departure until they prove their innocence. One example:-
Is there any legal redress for being falsely accused of shoplifting?
It used to be (and may for all I know still be) the case that a slander uttered to even one person (other than, presumably, the object of that slander) was actionable.
In England, justice is open to all, like the Ritz Hotel. I suspect what is actually delivered in this case is more waste of time and effort.
The FT comments seem quite mild, not much call for hanging and flogging. Plenty of handwringing over the uselessness of drugs policy, community orders, the police, the courts, prisons full etc etc. Some feeling that Louis Vuitton et al are the authors of their own misfortune and can well afford the loss.
One wonders how our French or German or Swiss friends deal with this situation. Are matters better or worse there?
The problem looks to me to be led by a cynical lack of care from the top. May I suggest matters will improve were we to haul in a random six from the Cabinet and administer a good flogging, once a quarter until matters improve.
Ah yes, all will be solved with demonstrative physical violence at random? How daft.
While the Government seeks to reduce legal aid costs by limiting access to it, it is compelled by law to give what is effectively legal aid to large retailers and other wealthy private prosecutors. I think it’s poetic justice that savings due to law and order budget cuts are being eroded by the state having to fund the costs of private prosecution service providers who step in to fill the gap.
Yet again we see the reduction of public service provision leaving all but the wealthy with no service at all.
I have read (and paid for) a copy of the FT containing the article. It looks to me as if section 17(2) of the Prosecution of Offences Act 1985 applies in these situations. I wonder if this section has been fully taken account by courts of when making costs orders against privately prosecuted defendants.
In respect of the paywall at FT articles, I find that if I copy the article title from the ‘paywalled’ FT screen and google search using that text (in this case “The British private investigator taking criminals to court when the state won’t” I can always then read the full article directly from the google results list.