Forget the Grinch - what can be done about the gang that tried to steal Christmas!

Successive governments have promised to revisit the issue but retailers at the coal face have been left without any obvious legal solutions.

Of course there are practical 'solutions'; more security guards, more cameras more electronic tags on products but with organised gangs stealing to order, the problem is endemic. Some comfort may be taken from the recent news that a police sting in December resulted in the arrest of 93 gang members purportedly behind £4m worth of thefts, but that is the tip of the iceberg. On the other side of the till are those like shopkeeper Martin Gaunt who has carried out more than 50 citizen's arrests in the last two years. 

There may be legal solutions available that don’t rely on the police having enough resources to arrest and prosecute and that don’t involve putting retail staff at risk of harm. As a starting point, taking goods that belong to another is not just a crime but also a 'civil wrong' (technically known as the tort of conversion). That means the shop owner can choose to bring a claim through the courts. That may be enough to deter those who may feel less confident about getting away with it than they would if it was just left to the heavily strained local constabulary. 

Alternatively, retailers may choose to take a more focussed approach to taking action through the civil courts where those persistent, high value offenders or gang-backed thieves are targeted in order to disrupt their criminal activities. That may include pursuing the thieves as trespassers. 

When does a member of the public become a trespasser?

Tackling shoplifters as trespassers could be an effective strategy in the right circumstances. So when does a member of the public, entering a shop, become a trespasser?  

• Implied permission to enter: shops generally allow members of the public to enter during business hours. However, this permission is conditional, and one condition is that the person enters for a lawful purpose (e.g. to browse or make a purchase).
• Entering with intent to steal: if a person enters a shop with the pre-formed intention to commit theft, they are exceeding the implied permission to enter. Consequently, they can be treated as a trespasser.

A retailer can pursue a trespasser to obtain an injunction prohibiting them entering their premises in the future. If they enter, in breach of the injunction, they will be in contempt of court and therefore committing a criminal offence. That doesn’t however put retailers back at the mercy of police resources to do something about it. If they can evidence the breach, the retailer is in control and can have the trespassing shoplifter committed to court. If found in contempt the shoplifter will be sentenced for the breach of the injunction. The civil courts do not take breaches of injunctions lightly – prison sentences for breaches are not uncommon even where a corresponding shoplifting offence wouldn’t come close to the custodial threshold in the Magistrates Court. 

Recent court developments on trespassing

It’s within the court’s powers to issue injunctions against 'persons unknown'. This is normally in fairly limited circumstances for example, against a group of protesters who had stormed a racecourse in order to prevent them doing it again (even if the exact identity of each member of the protest group was not known). More recently the Supreme Court have confirmed the availability of a completely new type of injunction against 'newcomers'. That is, people that are unknown, who may never actually commit any wrongdoing but if they do, provided they are on notice of the newcomer injunction, will become subject to it and in contempt of court by breaching it. 

So far this type of injunction has only been applied in the context of Traveller communities to prevent accessing and staying on vulnerable private land. However, a potential extension of the newcomer injunction could well be against criminal shoplifting gangs operating in certain locations even where the gang members cannot be individually identified. 

Whether a retailer will take a stand on trespassing in this manner will remain to be seen, but Ashfords have a wealth of experience in advising on trespass and have recently advised one national retail chain on ways to tackle the plague of shoplifting it has experienced in all of its shops across the UK.  

This is an emerging and complex area of law where a compressive risk benefit analysis should be undertaken before any civil action is pursued. Any retailer seeking advice on what options might be available should not hesitate to contact Robert Nicholson, partner in our property disputes team and Liam Tolen, senior associate in our commercial disputes team.