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YOU’RE NOT
to the Select Committee for an assault then the retailer
Home Affairs that use of the needs only show that, on
ASBO was inconsistent and balance, it happened. It does
WELCOME
seemingly subject to a not have to prove it beyond
postcode lottery. all reasonable doubt. Whilst
For retailers there are damages and costs can also
ANY MORE
several specific drawbacks be sought from the courts
not least that ASBOs are this is seldom done if the
viewed as a badge of honour reality is that individuals
by some recipients. The price cannot or will not pay.
for allowing the state to fund Once the order is served on
and take charge of the the individual, if it is
process is that the retailer has breached the retailer can
no control over whether a apply to the same
summons for an ASBO is court/judge for the individual
taken out by the authorities. to be fined or imprisoned for
If a case reaches court, the contempt - and judges do not
standard of proof required to like their orders being
show that the acts committed breached! There is also
amount to harassment alarm anecdotal evidence that if a
or distress is the criminal civil injunction is breached
standard – beyond then the police are more
reasonable doubt, not the willing to act against
lower civil standard – on the offenders for future breaches
balance of probabilities. amounting to an offence. Of
course whilst there are no
CIVIL ACTION guarantees about how a
ONE of the frustrations faced unable to help. Even when There is more that retailers court will react, it does give a
by retailers is how to exclude an individual is put into the can do by using civil law measure of control back to
somebody from your criminal justice system the remedies to seize control of the retailer who may even
premises who keeps wheels of justice turn slowly the issue and reduce direct act in consort with other
returning to steal, harass staff and there is little or no and indirect costs. By retailers against well known
or cause nuisance. Whether control by the retailer over applying for an injunction in trouble makers.
they are a disgruntled ex- the process. There is also a the civil courts to keep The perceived downside to
employee or a persistent perception that the criminal individuals away it also has taking court action is the
thief, their actions have a justice system favours the the effect of demonstrating a cost. Traditionally, costs have
detrimental effect on the offender, not the victim. An commitment to staff, helping been open ended with
business. There are obvious oft-quoted example is the retailers discharge its own solicitors charging an hourly
direct losses – shrinkage and thief who steals £200 worth duty of care towards them. rate for their service.
the costs of extra security. of goods but receives a fixed The advantage to the retailer However, we are piloting an
There are also equally penalty notice of £80 under is that it is in charge of the innovative new fixed-price
important (but often the Criminal Justice and process and can decide how injunction, which enables
unquantifiable) indirect Police Act 2001 making it and when to bring retailers to know their costs
losses such as the reduction in worth his while stealing proceedings. in advance and to share the
productivity caused by again. The claim will usually be risk with its solicitors. Using a
reduced staff morale as well In1998 the Crime and for an order that an mixture of personal service
as time spent dealing with Disorder Act introduced the individual does not enter on and bespoke online systems,
the issue. In some cases Anti Social Behaviour Order to its premises and possibly the idea is to give back
employees may take time off (ASBO) to prevent future acts that it does not harass or control and reduce cost to
for stress, or worse, leave that might cause harassment, assault its staff. Whilst an the retailer whilst simplifying
their job. This might be alarm or distress. Retailers injunction is a discretionary the legal process. The service
particularly acute where the and others saw it as a remedy of the court, a also includes legal advice to
unwanted individual is from potential way of keeping retailer need only show that avoid pursuing claims that
the same community as an malcontents away from their it is in possession of the have little chance of winning.
employee who does not premises. The ASBO is very premises and that the RF
want to be confronted by the flexible in terms of what individual is not entitled to
individual outside of work, so behaviour is caught and the enter on to them to found a
they leave. restrictions that can be claim for an injunction James
It is well understood that imposed, however, it does barring them. Being a civil Haddleton,
the police face budgetary have drawbacks with the claim, the lower standard of a litigation
and resourcing constraints National Association of proof is all that is required. partner at
and may be unwilling or Probation Officers reporting So, if there is an allegation of DWF LLP
ISSUE 2 SEPTEMBER 2008 • 11
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