How procedure is enabling petty criminals

It is a sad day for the middle class when the honour of Waitrose must be salvaged by Iceland. But whilst its stepping up to employ Walker Smith at least ensures he won’t face personal hardship, it doesn’t do anything about the conditions which led to his sacking.

Calling for things is easy, and largely useless

Chris Philp, the Shadow Home Secretary, doubtless spoke for the vast majority when he called on Waitrose to reverse its decision. To see someone penalised so heavily for confronting a shoplifter would be offensive to our sense of justice at the best of times, but feels especially outrageous in a country which has all but decriminalised — and thus, increasingly normalised — shoplifting.

But calling for things is easy, and largely useless. Not only is Waitrose’ policy unchanged, but this is not an isolated incident; many large retailers, such as Lululemon in the United States, adopt similar “zero-tolerance” approaches towards confronting wrongdoing, 

The questions, therefore, are these. First, why do they do this? Second, why should we stop them? Third, how do we stop them?

As you might expect, the public justification for these policies is couched in compassionate rubric; both Waitrose and Lululemon employed very similar language about the welfare of their employees being more important than the value of stolen goods. That’s fine, as far as it goes — it would certainly be wrong for companies to force untrained retail staff into potentially dangerous confrontations. But it doesn’t really stack up for having such a severe policy towards those who choose to act. 

The real answer, in the British case at least, seems to be legal liability. In theory, the law provides for private citizens to “use such force as is reasonable in the circumstances in the prevention of crime”, per the Criminal Law Act 1967, Section 3(1). In the case of retail staff, however, this is vastly outweighed by laws aimed at forcing companies to provide safe environments for their staff.

Like many things with untreated negative effects, that is an eminently reasonable goal. In practice, it means employers have to adopt a strict no-confrontation policy and rigorously enforce it (the courts distinguish between enforcing a policy and merely having it), or expose themselves to serious risk of lawsuits, even from an injured shoplifter.

This, by the way, is just one manifestation of this country’s absurdly expansive liability laws, driven in part by our modern reflex to over-index on safety and in part by the fact that, when an individual case comes to court, the wealthy owner of land or buildings is generally less sympathetic than the injured party, even if the latter was reckless or criminal.

Changing this status quo will be difficult, both because it is the result of a complex interaction of several laws and principles and because, as so often in Britain, many of those laws were drawn up with good intentions and, in many other circumstances, have good consequences. It also reflects the clean-hands proceduralism of much of the governing class, which has an apparently inexhaustible appetite for negative outcomes if the alternative is taking decisions and implementing measures about which they feel squeamish.

But we should change it. First, and most obviously, because the result of these policies is injustice. Waitrose has employed the classic bureaucrat’s defence (“we can assure you the correct process is being followed”), which assumes that a defence of the process is a defence of the outcome. But if the results offend the nation’s sense of justice, then the procedure is inadequate.

Moreover, I think it fair to argue that the current order, whilst cloaked in caring language about employee wellbeing, is anti-worker. An employed adult spends a very substantial share of their waking hours at work, and we all like to take pride in our place of work if we can. It must be extraordinarily demoralising, even degrading, to be forced to stand idly by as it is casually and regularly looted.

(This goes especially for Waitrose partners who, as the name implies, are legally part-owners of the John Lewis Partnership, a fact the company is normally very proud of.)

If you doubt it, consider how it feels merely to be a customer who witnesses regular shoplifting; seeing more and more products locked away behind cumbersome security features, and feeling just a little as though you’re being taken for a fool as you diligently queue up to pay for what others are taking for free. But the customer at least does not spend much of their day in the shop, or wear its uniform.

Consider also the fact that employees confront shoplifters at all. Even when they are not summarily dismissed, they are usually defying clear corporate policy to the contrary and seldom, if ever, have any reason to expect to be rewarded. That some of them do so anyway testifies to the toll that shoplifting must take on them.

As such, a zero-tolerance policy towards confronting shoplifters should be viewed less as companies putting their employees’ wellbeing ahead of preventing losses, and more as those companies insulating themselves from legal risk at an acceptable cost in lost revenue and a totally-ignored toll on their workers’ dignity and psychological wellbeing. Especially in cases where the employees report that the company is not otherwise investing in a pro-active security approach to preventing crime on their premises.

So what should the Conservatives (or any other party interested in remedying this obvious injustice) do about it? 

Any effective policy response will need to do two things: not merely directly target the specific injustice of employees being fired for doing the right thing, but tackle the web of legislative incentives which both induce employers to fire them and, more broadly, make it difficult for retailers to effectively tackle shoplifting.

The first, which we might in the horrible modern fashion call “Walker’s Law”, could be accomplished by making it unlawful for employers to punish employees who exercise their legal right,  under the Criminal Justice Act, to “use such force as is reasonable in the circumstances in the prevention of crime”. In the event that a court found the employee to have used unreasonable force (i.e. behaved illegally) the employer would of course be permitted to take disciplinary action — and ought, in those circumstances, to be indemnified against any vicarious liabilities. 

They ought also to be legally obliged to have clear policies requiring staff to report all incidences of shoplifting they witness to the company, and to then report those to the police.

Where should those liabilities fall? In particularly egregious cases, as decided by the court, it could fall on the employee. But in the first instance it should fall on the shoplifter. Crime is wrong, preventing crime is socially responsible and morally just, and any harm or damage caused in the course of preventing a crime only happened because the crime was taking place. Primarily responsibility for it should lie, therefore, with the criminal.

There is precedent for this in common-law countries. Many American jurisdictions have what is called the “felony murder rule”, under which criminals may (and usually are) prosecuted for murder for any deaths caused by their perpetrating a crime, even if the deaths were not intentional. 

The UK does not have this, as a murder charge here requires intent. Being American there will surely be some elements of it which we would not wish to transpose to Britain, but it is an excellent general principle and a good basis for reform. Even if not adopted wholesale, if legal liability is clearly transferred to the perpetrator in normal circumstances (e.g. absent a finding of excessive force), it opens the way for violent criminals — and a criminal who is only violent if someone stands up to them is a violent criminal — to be prosecuted for existing offences, such as joint enterprise and unlawful act manslaughter.

(This would require a clear and intentional change to the weighting given to intent in liability law, which is what lead the Supreme Court to water down existing joint-enterprise law. This is another double-standard which operates to the criminal’s advantage: whilst criminal liability hinges enormously on intent, a business or landowner is liable under tort for anything they haven’t taken strenuous efforts to prevent.)

An understandable response to this programme — apart from the inevitable progressive hand-wringing about the danger of injuring criminals when we could just let them do crime — is that it should not be the responsibility of either retailers or their staff to tackle shoplifting, which is the proper responsibility of the police.

Perhaps that would be so in an ideal world, but a description of an ideal world is not an argument. We do need a stronger police response to “petty” crime, and a major prison-building programme to allow for the proper and effective punishment of serial offenders. 

Retail workers brawling with criminals in the aisles of our shops is nobody’s ideal world. But we should back them up when they do

But even if that could be delivered, retailers would need to be willing and able to confront and detain shoplifters long enough for the police to arrive; absent those conditions, businesses and individuals should have the law on their side if they choose to protect themselves against crime. Nor should we forget that our modern conception of British policing evolved in an era of much stronger social norms, and retailers having a zero-tolerance approach to crime is a step towards re-establishing those norms.

Finally, broader reform to liability law would also help to lift the burden on retail workers by making it easier for actual security staff to take a muscular and effective approach to tackling offenders themselves, and employers to build new security procedures that aren’t designed to minimise the risk of being sued by a criminal.

Retail workers brawling with criminals in the aisles of our shops is nobody’s ideal world. But we should back them up when they do. It is a modern British vice to make policy fit only for an ideal world (perpetrator-centred, risk-averse) when we don’t live in one, and we are all poorer for it.