The Privatisation of Criminal Justice

Discussion in 'Finance, Property, Law' started by Iolis, Dec 26, 2009.

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  1. Does the Civil Recovery Scheme operated by retailers now represent the privatisation of criminal justice?

    An argument for it which might find favour at the Treasury is based upon financial utilitarianism. This holds that in retail crime, where the cost to the public in invoking the coercive jurisdiction of the criminal justice system is disproportionate to the value of the goods lost, it is the retailer and not the taxpayer at large who should bear the cost of recovery.

    The retailer, even though he will have recovered his goods and therefore suffer no loss in respect of them, imposes a further financial penalty by passing on to the thief the costs involved in having to protect them. This, they would argue is no more than the thief receiving her ‘just deserts by way of ‘equivalence’. If the thief wishes to avoid the stigma of a criminal record for theft and the consequences to her of any realistic chance of employment, then she should be willing to pay a price over and above that which a court might reasonably be able to recover beyond the ‘victims surcharge’ which goes straight to the Treasury.

    There exists little incentive for the retailer to satisfy herself that the criminal act (the actus reus) and the accompanying mental element (mens rea) of theft are satisfied to either a criminal standard of proof beyond reasonable doubt or as ‘more likely than not’ to a civil standard. For the retailer, the absent-minded and blamelessly inadvertent are sacrificed to those who are not as ‘collateral damage’ to the retailer’s main purpose in minimising her loss.

    The other difficulty with this system of recovery is that it does little to deter morally culpable behaviour on the part of the professional thief or those who are educated, articulate and legally ‘savvy’. It would, however, operate successfully in respect of those against whom the burden of proving inculpatory behaviour cannot be discharged to any standard at all. Thus, it is more likely that the morally blameless individual with mental health issues, learning difficulties or the elderly and otherwise vulnerable will be subjected to this system while the mentally and physically robust sociopathic thief stands to benefit from it.

    Some people are more easily intimidated by authority (or those who purport to exercise it!) than others. Many lack a robustness of character necessary to withstand or to repel pressure brought to bear by those who are trained to exert it; extending in time from the point of detention by the retailer, through to the demands made with graduating levels of threat contained within carefully crafted letters from ‘enforcement’ agencies.

    The nature of the pressure applied to the individual is always psychological. It generally asserts the presence of overwhelming evidence, combined with the futility and disproportionate expense of seeking to challenge it. The principle purpose of such pressure is to break down the will of the impeached individual to the point where he voluntarily gives up the protection the law confers upon him protection from unwarranted and often illegal demands made upon him.

    An individual challenged within the retailers premises should insist upon the Police being called and should make no admissions nor offer any explanation until the arrival of the Police. If a name and address is demanded by the security staff who may be empowered to demand it, then the individual should not refuse to provide it but insist that it be given in the presence of a Police officer since once it is disclosed, the retailer is under no obligation to summon the Police and may, if the evidence against the individual is weak or non-existent simply pass on the details to the civil recovery agency and then ‘drop out’ of the picture. This is generally the most desirable outcome as far as the retailer is concerned.

    It is important to keep in mind that that the retailer has no interest in the individual whatsoever. The retailer has generally recovered her goods and her principal concern is to minimise her financial overheads regardless of the merit or otherwise of her allegation.

    If the Police are summoned, the individual may find himself placed under further psychological pressure to accept a Police Caution or Fixed Penalty fine. If the individual accepts, then regardless of any assurance given or any agreement made, the civil recovery system will still operate against the individual independently of any non-judicial sanction applied by the Policeman on the scene. It is therefore not unreasonable to conclude that no matter how reasonably the proposal is put to him, the individual has little to gain by acquiescing in a system designed to by-pass the court and everything to gain by insisting instead, that if the retailer seeks to enjoy the benefit of a civil recovery scheme, he may bear the corresponding financial burden of the allegation being properly tested before a fair and impartial tribunal.

    It should be equally borne in mind that although the Police Officer is under a duty to protect the individual from oppressive behaviour that is both ‘obvious’ and ‘blatant’, he also has a conflicting interest in satisfying the ‘targets’ that have been imposed upon him by his superiors charged with assessing his personal performance on a monthly basis. It is therefore not unreasonable to assume that those interests will ‘trump’ those of the individual in determining the outcome most favoured by the Police Officer.

    It should also be kept in mind that any loud and indignant behaviour on the part of the individual falsely accused of a criminal offence while perfectly understandable in most circumstances, is a useful secondary ground for arrest by a constable if the primary ground is non-existent since once a call for assistance has been ‘crimed, by the tasking agency, the discretion allowed to a Police Officer is highly restricted and he must therefore produce a ‘result’ for those who ‘tick the boxes’ It is therefore vitally important that the individual should retain the presence of mind to remain calm and composed at all times both before and after the Police arrive at the scene.

    It is neither sensible to suggest nor reasonable require a blameless individual to act as a mere passive recipient of correspondence, in terrorum or otherwise from agencies engaged in civil recovery. It is a sad fact that some solicitors who are most intimately involved in the law are those who are most disposed to abuse it. A solicitor’ letter has no greater authoritative claim upon an individual than that of the client whose interest it seeks to advance and letters from such enforcement agencies while worthy of consideration, have no greater legal status than that of any other.

    The efficacy of systems designed to circumvent the court depend entirely upon the consent of the individual against whom such measures are directed. Without that consent, the system collapses fairly rapidly. As long as the strong are able to convince the weak that a fair and impartial tribunal exists the sole purpose of enforcing demands without first testing their validity then the privatisation of justice and the abuses inherent in such a system will continue to spread into areas such as minor assault and criminal damage where the injury or the sums involved are relatively small.

    Every time an individual takes what he sees as an ‘easy option’ in meekly accepting the ‘caution’, the ‘fixed penalty fine’, or pays the sums arbitrarily demanded of him by the agencies operating ‘civil recovery’ he sacrifices justice for expediency and gives his implied consent to those who would re-ignite the flames that burned in the ovens of central Europe some 60 years ago.
     
  2. But the individual has the choice of just paying or going the whole hog do they not?

    And I doubt this is the road to holocaust.
     
  3. Some very interesting points.

    You mention Security Guards operating in a retail environment. I have frequently had to address the issue of these individuals "detaining" people they suspect of being shoplifters. When I enquire as to the legal power envoked to affect such detention, I am usually met with the response "Any person powers" or "citizens arrest". Since SOCAP I have had a problem with this. As I understand the legislation, members of the public could only conduct such an arrest if they know that an indictable offence had been committed and that they know that the person that they are detaining has committed that offence. Furthermore they have to believe that it would not be practicble for a Constable to make such an arrest.

    Too frequently people are being detained prior to passing the "point of sale" in shops. Often security staff seem to intervene either too quickly (not allowing the suspect to demonstrate their intent) or intervene where they have no power to do so.

    A police caution, and more recently, the community resolution, although both problematic, in my opinion pose less of a compromise to the criminal justice system than the Anti Social Behavior Order (ASBO / CRASBO). The implementation of this legislation is almost always wrong in my experience.

    Your observations regarding the erosion of the discretion of those holding the office of constable are entirely correct. Once an offence (even sect 5) has been reported it has to be crimed, then you basically have to arrest that suspect. If you suggest using your discretion to avoid making an arrest, then your supervisor will suggest that you are neglecting your duty to investigate an offence. In reality they just want the crime "cleared".
     
  4. Perhaps I have failed to make my point with sufficient clarity

    Choice is based upon the reality of informed consent. My principal purpose in writing is to articulate my concern that the gradual erosion by the executive of access to the courts is detrimental to the administration of justice and to the rule of law. To leave the determination of guilt or innocent to agencies who have little incentive to determine such issues in a fair and balanced manner is a recipe for the domination of the weak by the strong.

    My secondary purpose in writing is to invite discussion on whether others believe that such a trend is either necesary or desirable and if desirable, whether it should be extended and if extended, what are the social consequences?

    Regards
     
  5. Did you got to Bailiol? :D

    In truth I don't support this. Whilst I advocate a similar scheme executed by the Police to keep the courts free and to ruin the perp, the idea of M&S deciding you owe them £X for theft is (in my eyes) not the way to go.

    It is not for the people of this country to execute justice... that would border on vigilantism. Although I do agree that they should help formulate justice in this country.
     
  6. If I read this clearly the shoplifter is given an option by the retailer to pay what they demand or police/court action will follow? ie "You give me £50 and we won't inform the police of your offence?"

    There must surely be a fine line here between an "arrangement" and blackmail?
     
  7. Yep

    and if i was a bang to rights thief with a bit of previous, Id sure as hell be taking the caution or fixed penalty notice.

    Having said that, I do find most forms of civil enforcement rather sinister, from the instant ticket traffic cameras operated by local councils to the civil recovery scheme, you've no chance to have a day in court like you have if arrested.
     
  8. Don't shoplift and you won't have to worry about Civil Recovery. Seemples. :roll:

    If you decide to steal things instead of working for a living, then fcuk you. You deserve everything you get. I'd have no problems with security staff tazoring shoplifters or clubbing them like baby seals.

    And before anyone mentions potential miscarriages of justice, there is always a risk of that, even with the police.
     
  9. What a load of crap. Yes there is the chance of a miscarriage of justice when the police arrest a person, hence we have the powert to arrest on suspicion of an offence. After ascertaining the full facts, it may be that the suspicion was not in fact the truth, this may be decided at a police station where all the facts are evident or maybe at court. Either way tazering people or clubbing them arent really realistic are they?
     
  10. IIRC, Tesco never shot a man seven times for the crime of being a Brazilian electrician. Nor did Sainsbury's security kill a man armed with a table leg...

    Given the PATHETIC standards of a Britain's so-called justice system, I venture to suggest that the CRS is the LEAST of our problems. :roll:
     
  11. So your answer is to arm security guards with tasers and clubs and allow them to use potentialy deadly force against shoplifters becasue you see terrorism, armed response incidents, and shoplifting as three scenarios requiring comparable uses of force?

    Are you basing this on any sort of experience? Would you be comfortable tasering someone who you know was a simple shoplifter who you knew you could deal with without the use of any force? I wouldnt. And I dont know any officers who would. I've met a few violence obseessed clowns who would see it as a legitimate resposne though, whether they'd even know how to use a club let alone a taser is a different matter.
     
  12. Calm down, dear; it's just a commerical. :roll:

    I was being sarcastic, because the precious, noone-else-can-do-our-job attitude of SOME(not all)police, lawyers etc grips my sh1t. The fact is that I would not trust many so-called criminal justice "professionals" to carry out security duties at Tesco on a bad Saturday night.

    As for shoplifters, they are, without exception in my unfortunately extensive experiance, worthless scum. Many are junkies and will think nothing of trying to spit on, bite or stab some poor b@stard on minimum wage if they attempt to stop them stealing the price of their next fix.

    I recall once having to restrain a "simple shoplifter" after he knocked out three of a police officer's teeth with a headbutt.

    Tazor them? I'd strap them into Old Sparky and throw the switch myself, mate. :evil:
     
  13. So you're a security guard?

    All shoplifters are "scum"? I dont thinks thats accurate or fair at all, I've arrested plenty of shoplifters who have been misguided kids from good families, who have done something silly for equally silly reasons. They regret doing it and regret getting caught, they go on to never do it again. They are not all scum, to claim they are says something about your views. I agree the majority are junkies, many are violent, and as for assaulting a police officer - shoplifting will now be the least of their worries.

    I have honestly never encountered a "no-one lese can do our job attitude" as you put it, I'm not saying it doesnt exist, just that I've never encountered it. Could you give an example of how such an attitude would be displayed and how it would manifest itself? Also could you explain other than a police officer who within the community should enforce law, investigate crime and deal with disorder?
     
  14. I moonlighted as a security dog handler for a couple of years before leaving the army and I have to say that non of the scum I came across whilst patrolling some of the wild and wooly areas of east London were misguided kids from good families. However during the newspaper strikes I was very pleased, as you can imagine, when a motorcycle cop approached me, having idly stood by and watched several waves of flying pickets lobbing conrete blocks, bricks and steel reinforcing rod at us and told me that he would "nick me if he saw my dog bite anyone".

    And thats enough of all this, a good thread is being hijacked. I must read through the first post again though when I have more time.
     
  15. I dont think it's being hijcked as such. One of the many insightful points made by the O.P regarded suspects accepting police cautions for offences such as shoplifting, refusal to accept a caution, would usually result in the matter going to court. This has the obvious potential to result in a conviction and higher penalty. I think the O.P was commenting that many are chosing to accept a caution or are being encouraged to do so when the better course of action may be to proceed to trial. This is one of many points that he seems to be making. The thread started to get sidetracked, in my opinion, when Werewolf seemed to advocate security staff using tasers etc against shoplifters and I responded. Apologies if I have contributed to muddying the waters, I agree it's a good thread.

    On a seperate note, you dont need me to tell you that the way you were spoken to was completely out of order. Either the bobby got it wrong on the day or he was just a nob. Regarding the shoplifters, it's usually when you get soemone down the station and in front of their old man or mum, that they drop the pretence and start blubbing.