Dealing with theft on the shop floor can be a minefield for retailers. Legal expert Krystil Carter reviews the latest rules.
I saw a customer put a product in their bag before they paid for it. Is that person a thief?
Retail owners and employees need to be aware that stealing hasn’t occurred until someone has left your premises without paying for a product. So no crime has been committed by a customer merely concealing the product, as the customer can quite legitimately claim he or she intended to pay for it before leaving. Many times people put a product in their bag whilst shopping so they have their hands free to continue to look at products.
I think this issue is only more prominent in today’s retail space with the ever-increasing popularity of reusable and eco-friendly shopping bags, which now means customers approach the store with bags as opposed to only getting a bag at the checkout.
If someone is acting suspiciously or you otherwise suspect a person of stealing, one of the most effective ways is to approach the customer and start a conversation. It’s unlikely the customer is going to steal right in front of you, so this will remove the opportunity for theft. Shoplifting is often looked upon as a ‘victimless’ crime (the offence being against a shop and not any specific person). So if you can bring a personality to the brand then it can serve to dissuade thieves.
What are my rights in relation to checking a customer’s bag?
If you think the customer is stealing but you didn’t have a chance to approach the customer while he or she was walking around the store, you should approach the customer for a bag inspection as he or she leaves.
You have the right to set conditions of entry to your business premises, but you need to be careful not to put yourself at risk and to ensure that your business stays on the right side of the law. For these rights to be effective, the terms and conditions must be prominently displayed at the entrance to the store so customers are given the opportunity of viewing them on entering the premises.
If you will be asking customers to present their bags for inspection, remember that bag checks must be voluntary and the customer must be asked to open his or her bags for inspection
You should never touch the customer or his or her property, as this can put you at risk of legal action (for example, assault, battery or trespass to chattels). If the customer opens their bag for inspection and you see a garment or accessory you suspect is stolen, ask the customer to remove the garment from their bag and show it to you for inspection. If you’re convinced that it’s stolen, ask them for proof of purchase.
If the customer refuses to show me their bags, what can I do?
As bag checks are voluntary, customers have the right to refuse showing you their bags. If this happens, I would recommend politely pointing out to the customer that it’s a condition of entry that all bags be inspected (assuming you have written conditions of entry prominently displayed). If the customer continues to refuse, I would repeat the question or ask them if they want to speak to the manager.
Although it is tempting to assume that the reason the bag check was refused is because the person is harbouring stolen goods, some customers feel offended when asked and this is the reason they refuse. If they continue to refuse, you could simply ask them to leave the store. If you suspect they are refusing because they have stolen goods, I would recommend calling the police.
Can’t I just detain them if they refuse to have their bag checked?
Business owners and employees have the right to detain someone they believe on reasonable grounds to have committed, or to be committing, a criminal offence. However, before you do so, it is important to know that if you do not have ‘reasonable grounds’ to detain someone, you may be committing a criminal offence or may be subject to civil penalties.
The logical question, therefore, is what are ‘reasonable grounds’. Simply put, it’s more than you or your employee having a reasonable suspicion. In my opinion, the fact that someone has refused a bag request alone won’t be reasonable grounds and before you detain someone, you must have direct evidence that an offence has been committed (for example, seeing someone hide a good and then attempt to leave without paying).
If you do detain a person, you must:
• Tell the person that you are detaining them and why.
• Avoid physical contact with the person
(if possible).
• Only use force where you have to defend yourself or someone else from an attack. Such force must be reasonable in all circumstances. If the force used is out of proportion to the threat, you can be sued for assault, battery or a worse offence. Note that in some cases, the threat of force can also constitute assault, so you should not consider the use of intimidation.
If you’re in doubt about what to do, do nothing. Note the description of the suspect and give it to the police. A guiding factor should always be the safety of yourself, your employees and fellow customers. ¦
Krystil Karter is a solicitor with Gibsons Solicitors.