Business & Property Newsletter February 2010 Retail Security If you or your staff would like to attend a free seminar to discuss this topic, please contact Madeleine Perrignon at madeleine.perrignon@turkslegal.com.au or 02 8257 5710 Shoplifting is estimated to cost Australian retail businesses approximately $600 million a year and it is increasing steadily. Bag checks can be used to reduce shoplifting, but retailers need to be aware of their rights and obligations when undertaking them.
What Action Should be Taken? Ensure that you and your staff understand your rights and obligations concerning bag checks so that you are not exposed to allegations of assault or wrongful imprisonment. By understanding your rights and obligations, you will be confident about what actions you can take and when, which might help to reduce the incidence of shoplifting.
There are many measures which a retailer can adopt to limit shoplifting. If a store adopts effective measures, then it will develop a reputation for good security and will become a less likely target. A store with poor security precautions, or which is lenient with shoplifters, could become known as an easy target by other shoplifters.
Bag check guidelines have been compiled by the Australian Retailers Association and have been endorsed by the Office of Fair Trading (or equivalent) in the various Australian States and Territories. Those guidelines outline retailers’ and shoppers’ rights and obligations. This newsletter supplements those guidelines and offers further guidance on when a retailer has the power to detain a suspected shoplifter.
Rights Righ Retailers who want to conduct bag searches must display a sign stating this. Why? Because, on a shopper’s entry into the store, they have the right to know that the store conducts bag searches. If such a notice is displayed and the shopper still enters the store, then the rationale is that they have accepted the retailer’s right to require the shopper to make their shopping bags available for inspection. If a shopper does not agree to have their bag searched, they can simply avoid entering the store.
Among other techniques for reducing theft, retailers often use bag checks to reduce shoplifting. Retailers should ensure that their staff members know the store’s policies and procedures in relation to suspected shoplifting incidents. They should also ensure that their staff members know the rights and obligations of both retailer and customer concerning bag checks.
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If a bag is smaller than an A4 sheet of paper, then a shopper will have the right to refuse inspection. It is only if the handbag is larger than an A4 sheet of paper or if the retailer is confident that the handbag conceals goods which have not been paid for and which belong to the retailer, that the retailer has the right to conduct a search. If the retailer is confident that a bag contains goods stolen from the store, they are also entitled to detain the customer and call the police.
False Imprisonment False imprisonment occurs when a person subjects another person to deprivation of freedom of movement. Any restraint upon the personal liberty of an individual, which is not warranted by law, is false imprisonment, provided that there is no alternative means of exit. If a shopper is innocent but is forcibly detained by the retailer (in other words, if the retailer implements a citizen’s arrest), then the retailer could be guilty of the offence of assault or unlawful imprisonment because they have exceeded their limited legal authority. This is why, before retailers detain a shopper, they should carefully observe the shopper to ensure that unpaid goods are concealed in bags and that the suspect intends to leave the store without paying for the goods. If it is certain that the suspect has left the store without paying for the goods, staff can approach the suspected shoplifter outside the store, as this assists in proving that the shoplifter clearly intended to permanently deprive the retailer of their goods. The person arresting the shoplifter should ensure that they hand the suspect over to the police without delay.
What Does Bag Checking Mean? Retailers must be aware that bag searching only means looking but not touching. A shopper always has the right to refuse interference with either themselves or their bags. This means that if a retailer cannot see the contents of a bag because of obstructions, they can only ask the customer to remove the obstructions. They cannot touch the bag’s contents themselves.
In the matter of Myer v Soo, the Court held that physical restraint is not necessary in order to establish false imprisonment and words may suffice in bringing about a total restraint on the liberty of the person. Therefore, it may amount to false imprisonment if a suspected shoplifter is left unattended in an unlocked manager’s office and told that they are not allowed to leave before the police arrive.
What Happens if a Shopper Refuses to Let You Search Their Bags? Due to the fact that a shop is private property, if a shopper refuses to have their bags checked, the retailer has the right to refuse to sell them any goods and to ask them to leave the store and not return. Of course, this does not assist the retailer if the shopper has actually stolen goods.
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It could also be deemed false imprisonment if a suspect feels they have no choice except to go where requested by the retailer. For example, in Peters v Stanway Stanway, the Court held that it could amount to false imprisonment if a shopper is accused of shoplifting and goes voluntarily to the store manager’s office in order to prevent force being used or in order to avoid an embarrassing scene. It is important to always use sensitivity when dealing with a suspected shoplifter. In 2007, a security guard in Target accused a woman of stealing razor blades. The guard allegedly approached the woman, loudly accused her of stealing the razor blades in front of other customers and then dragged her into an office to await the police. She was prevented from leaving for two and a half hours. She sought damages from Target for defamation, assault, wrongful arrest and false imprisonment.
Security Guards Are you entitled to have security guards at the store entrance checking bags? Yes, if you have displayed a sign advising that bags will be checked and the shopper still enters the store, then they have accepted this right of inspection, either by the retailer or by its agents. Remember, however, that a security guard does not have the same rights as a police officer. A security guard can only implement a citizen’s arrest and they have far more limited powers of detention than a police officer (see the following paragraph).
The requirement for sensitivity is important because, if the retailer is incorrect, then a customer is more likely to seek damages when they have been unnecessarily publicly humiliated. If the retailer has used discretion in front of other customers, then the innocent customer may still be able to seek damages for false imprisonment, but they would probably not be successful in a defamation claim. In another claim against the retailer, a customer returned some goods that he had purchased from Woolworths. In front of other shoppers, without having a proper basis for doing so, security guards stopped him and alleged that he had stolen the goods. The words and actions of the security guards were deemed defamatory and the customer was awarded over $15,000 in damages. Similarly, a woman was successful in her defamation and false imprisonment action against Westfield. Whilst visiting Westfield Hornsby, she was stopped by security staff for wearing a short skirt which they deemed was “inappropriate”. The Court held that it appeared to other shoppers that the woman was being detained for shoplifting or other illegal activity because of the way the security guard had stopped the woman and prevented her from leaving. Again, sensitivity may have prevented the situation from escalating to such a degree.
When Does the Retailer Have the Power to Arrest? In the matter of Walters v WH Smith & Son Limited Limited, the shop owner detained a suspect who he believed had stolen books from his shop. The Court believed the suspect’s statement that he intended to pay for the books and the suspect was acquitted. The suspect then sued the shop owner for false imprisonment as he had been wrongfully detained for a crime which he did not commit. The Court held that a private person has the power to arrest if there are reasonable grounds on which to base the suspicion and also if the offence has, in fact, been committed or attempted to be committed either by the suspect or even by someone else (that is, by their accomplice). A police officer making the same arrest could legally justify the arrest without establishing that a crime had occurred.
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This is why retailers and their staff need to be confident that an offence has occurred before they detain a suspect. In terms of the first requirement (that a private person must have reasonable grounds on which to base the suspicion), a court would probably determine that a retailer was entitled to be reasonably suspicious if a customer refused permission to inspect their bag when this had been made a condition of entry into the store. If retailers detain suspected shoplifters, they need to ensure that they actually tell the suspect why they are being detained. In Christie v Leachinsky Leachinsky, a police officer arrested a man suspected of stealing goods but did not advise the suspect of the correct crime for which he was being arrested. This resulted in the suspected thief being successful in a claim for false imprisonment. Similarly, if a retailer detains a suspected shoplifter, the retailer should ensure that they clearly advise the shoplifter that they are suspected of shoplifting and being detained because of this.
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A retailer should display a sign advising that bag checks may occur when shoppers leave the store If there are reasonable grounds to suspect that shoplifting has occurred and you are confident that the offence has occured, then a retailer has the right to detain a shopper until the police arrive If a shopper is detained, they should be told the reason why they are being detained Remember that if you detain a shopper when they are not guilty of shoplifting, they may claim damages for false imprisonment, defamation or assault A bag searcher may look but not touch the contents Refusal to allow a retailer to search a bag could be deemed suspicious, particularly when the retailer has advised that entry is conditional on allowing bag searches A shopper can refuse inspection of a bag smaller than A4 size Ensure that staff are aware of the store’s policies and procedures in relation to suspected shoplifting incidents
If you or your staff would like to attend a free seminar to discuss this topic, please contact Madeleine Perrignon at madeleine.perrignon@turkslegal.com.au or 02 8257 5710
Our Business and Property team provides a wide range of services for our clients at reasonable rates We act for both landlords and tenants and we are experienced at advising in respect of retail leasing legislation We regularly present seminars in respect of retail leasing legislation We are experienced at drafting retail leases We are experienced at advising in respect of: - disclosure statements - leasing fit out - incentive arrangements - make good and repair obligations - breach of lease covenants - green leasing - misrepresentation - any other issue relating to retail leasing
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For further information in relation to this newsletter or for general property matters, please contact: Madeleine Perrignon Partner – Business & Property (02) 8257 5710 madeleine.perrignon@turkslegal.com.au LLM (UNSW), Dip. Law (SAB), MA (UNSW), BA (UWA) Special Expertise: Retail Leasing
For general property matters, you can also contact: Paul Anderson Partner – Business & Property (02) 8257 5742 paul.anderson@turkslegal.com.au B Com (UQLD), LLM (U Virg), LLB (Hon 1)(USyd), BA (USyd) Special Expertise: Estate matters
Stephen Teale Partner - Business & Property (03) 8600 5008 stephen.teale@turkslegal.com.au B.Ec.LLB (U Mon) Special Expertise: Friendly societies
All our property partners are experienced in acquisition and disposal of all types of property, including shopping centres, hotels, industrial property, domestic residences and businesses. They can also assist with any type of leasing, with advising in relation to business structuring, contracts, trust issues, GST, CGT, estate planning and all general property matters.
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