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 âjust deserts by way of âequivalenceâ. 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 âvictims surchargeâ 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 âmore likely than notâ to a civil standard. For the retailer, the absent-minded and blamelessly inadvertent are sacrificed to those who are not as âcollateral damageâ to the retailerâs 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 âsavvyâ. 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 âenforcementâ 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 âdrop outâ 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 âobviousâ and âblatantâ, he also has a conflicting interest in satisfying the âtargetsâ 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 âtrumpâ 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 âcrimed, by the tasking agency, the discretion allowed to a Police Officer is highly restricted and he must therefore produce a âresultâ for those who âtick the boxesâ 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 solicitorâ 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 âeasy optionâ in meekly accepting the âcautionâ, the âfixed penalty fineâ, or pays the sums arbitrarily demanded of him by the agencies operating âcivil recoveryâ 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.