The £15m scandal our libel laws are silencing

Alan White explains how critics of "retail loss prevention" - suing shoplifters - are being threatened with writs.

This is a story you won’t have read too much about, for reasons which will become clear. It starts at the turn of the century, when British high street stores began to allow a number of firms to make “civil recovery” demands for the administrative costs of processing shoplifting cases.

This practice is known as retail loss prevention, and it involves suing thieves in the civil courts. It seems reasonable enough - why should a shop or supermarket lose out just because they’ve caught someone committing a crime? Over the years, the industry grew. Citizens Advice reports that, since 1998, over 750,000 people have received letters demanding substantial sums as compensation for alleged shoplifting or employee theft. Civil recovery firms started to move into other areas. Hotel chains began to use them to chase customers who’d violated their non-smoking policy. Private parking firms went after people who’d violated their restrictions.

And over the years, a clear problem began to emerge. People were being pressed for costs despite not being found guilty of any crime. In one case, a young mother whose toddler opened a drink without paying received a bill for £87.50 for “staff and management time, administration and apportioned security costs”. A typical case was Sam’s. Aged 19, he was dismissed from his job with Tesco in July 2008, for the alleged theft of £4 cash from a till. He subsequently received a letter demanding £191.50, broken down as: £4.00 for the value of “the goods or cash stolen”, £112.50 for “staff and management time”, £33.75 for “administration costs”, and £41.25 for “security and surveillance costs”. Despite criticism from a QC and the Citizens Advice Bureau, the companies insisted that there were civil courts “precedents” which support such claims.

The complaints began to stack up on consumer forums, and the BBC's Watchdog ran a short feature. Oddly, whenever consumers stood their ground, the costs claims rarely seemed to be taken any further. According to Citizens Advice, of the more than 600,000 demands seemingly issued since 2000, only four unpaid demands have ever been successfully pursued in the county court by means of a contested trial.

Citizens Advice began to catalogue a steady stream of cases - no coincidence that they coincided with a rise in self-service checkouts. It soon put together one report, then another, showing that many of these cases were the result of consumer errors, and that many who were guilty had mental health problems and were caught taking extremely low value goods. As Denis MacShane MP told Parliament this year: “In essence, 90 per cent of all shoplifting in our stores is organised by gangs. About 8 per cent or 9 per cent is done by in-house stealing. The tiny one per cent is done—frankly, for the most part—by rather sad people.”

Now the story goes in a different direction. It’s about one civil recovery case, involving two girls who were caught shoplifting from a high street retailer. What happened next is, for the time being, detailed on their lawyer’s website: the case went to court, and the retailer’s assertion that its total losses were almost £137.50 was chucked out of court. Under cross-examination, a security manager agreed the incident had taken one hour and ten minutes to deal with - at a cost of £17, not £98.55 as claimed. He was carrying out his job, not distracted from a core function of it.

What’s interesting is what happened next. The retailer’s agent, Retail Loss Prevention (the biggest firm in the business), instructed libel lawyers Schillings to demand the law firm remove the above link from its website. And this wasn’t the only threat issued by Schillings, who also accused a national official of the Citizens Advice Bureau, Richard Dunstan, of "orchestrating" a three-year long "sustained campaign of harassment and defamation" against it and its staff, asking it to remove the two reports linked to above, and sent letters on behalf of Retail Loss Prevention to various websites.

One of them was the law site Legal Beagles. Like the other parties, it refused to accede to Schillings’ demands. Instead, it decided to publish the letter on its site. So far, this is where the story begins and ends. As MacShane said: “This is a £15 million racket used by a lot of major companies—corporate groups — such as Boots, TK Maxx, Primark, Debenhams, Superdrug and Tesco. They are all shops that we use.”

That the media has shied away from a detailed investigation of the industry, most likely for fear of vexatious litigation, is one thing. And no doubt the PR men have helped out too - does this Wikipedia entry strike you as entirely objective? But that the Citizens Advice Bureau should face legal threats merely for doing its job should tell you all about this country’s ludicrous libel laws. No doubt the billionaires who've journeyed here to settle writs over the last few years have pumped a little into our economy whenever they’ve popped into Harrods. The question is exactly how much we’re willing to receive for our freedom of speech.

Are shops over-zealous about thieves? Photo: Getty

Alan White's work has appeared in the Observer, Times, Private Eye, The National and the TLS. As John Heale, he is the author of One Blood: Inside Britain's Gang Culture.

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Arsène Wenger: how can an intelligent manager preside over such a hollowed-out team?

The Arsenal manager faces a frustrating legacy.

Sport is obviously not all about winning, but it is about justified hope. That ­distinction has provided, until recently, a serious defence of Arsène Wenger’s Act II – the losing part. Arsenal haven’t won anything big for 13 years. But they have been close enough (and this is a personal view) to sustain the experience of investing emotionally in the story. Hope turning to disappointment is fine. It’s when the hope goes, that’s the problem.

Defeat takes many forms. In both 2010 and 2011, Arsenal lost over two legs to Barcelona in the Champions League. Yet these were rich and rewarding sporting experiences. In the two London fixtures of those ties, Arsenal drew 2-2 and won 2-1 against the most dazzling team in the world. Those nights reinvigorated my pride in sport. The Emirates Stadium had the best show in town. Defeat, when it arrived in Barcelona, was softened by gratitude. We’d been entertained, more than entertained.

Arsenal’s 5-1 surrender to Bayern Munich on 15 February was very different. In this capitulation by instalments, the fascination was macabre rather than dramatic. Having long given up on discerning signs of life, we began the post-mortem mid-match. As we pored over the entrails, the curiosity lay in the extent of the malady that had brought down the body. The same question, over and over: how could such an intelligent, deep-thinking manager preside over a hollowed-out team? How could failings so obvious to outsiders, the absence of steel and resilience, evade the judgement of the boss?

There is a saying in rugby union that forwards (the hard men) determine who wins, and the backs (the glamour boys) decide by how much. Here is a footballing equivalent: midfielders define matches, attacking players adorn them and defenders get the blame. Yet Arsenal’s players as good as vacated the midfield. It is hard to judge how well Bayern’s playmakers performed because they were operating in a vacuum; it looked like a morale-boosting training-ground drill, free from the annoying presence of opponents.

I have always been suspicious of the ­default English critique which posits that mentally fragile teams can be turned around by licensed on-field violence – a good kicking, basically. Sporting “character” takes many forms; physical assertiveness is only one dimension.

Still, it remains baffling, Wenger’s blind spot. He indulges artistry, especially the mercurial Mesut Özil, beyond the point where it serves the player. Yet he won’t protect the magicians by surrounding them with effective but down-to-earth talents. It has become a diet of collapsing soufflés.

What held back Wenger from buying the linchpin midfielder he has lacked for many years? Money is only part of the explanation. All added up, Arsenal do spend: their collective wage bill is the fourth-highest in the League. But Wenger has always been reluctant to lavish cash on a single star player, let alone a steely one. Rather two nice players than one great one.

The power of habit has become debilitating. Like a wealthy but conservative shopper who keeps going back to the same clothes shop, Wenger habituates the same strata of the transfer market. When he can’t get what he needs, he’s happy to come back home with something he’s already got, ­usually an elegant midfielder, tidy passer, gets bounced in big games, prone to going missing. Another button-down blue shirt for a drawer that is well stuffed.

It is almost universally accepted that, as a business, Arsenal are England’s leading club. Where their rivals rely on bailouts from oligarchs or highly leveraged debt, Arsenal took tough choices early and now appear financially secure – helped by their manager’s ability to engineer qualification for the Champions League every season while avoiding excessive transfer costs. Does that count for anything?

After the financial crisis, I had a revealing conversation with the owner of a private bank that had sailed through the turmoil. Being cautious and Swiss, he explained, he had always kept more capital reserves than the norm. As a result, the bank had made less money in boom years. “If I’d been a normal chief executive, I’d have been fired by the board,” he said. Instead, when the economic winds turned, he was much better placed than more bullish rivals. As a competitive strategy, his winning hand was only laid bare by the arrival of harder times.

In football, however, the crash never came. We all wrote that football’s insane spending couldn’t go on but the pace has only quickened. Even the Premier League’s bosses confessed to being surprised by the last extravagant round of television deals – the cash that eventually flows into the hands of managers and then the pockets of players and their agents.

By refusing to splash out on the players he needed, whatever the cost, Wenger was hedged for a downturn that never arrived.

What an irony it would be if football’s bust comes after he has departed. Imagine the scenario. The oligarchs move on, finding fresh ways of achieving fame, respectability and the protection achieved by entering the English establishment. The clubs loaded with debt are forced to cut their spending. Arsenal, benefiting from their solid business model, sail into an outright lead, mopping up star talent and trophies all round.

It’s often said that Wenger – early to invest in data analytics and worldwide scouts; a pioneer of player fitness and lifestyle – was overtaken by imitators. There is a second dimension to the question of time and circumstance. He helped to create and build Arsenal’s off-field robustness, even though football’s crazy economics haven’t yet proved its underlying value.

If the wind turns, Arsène Wenger may face a frustrating legacy: yesterday’s man and yet twice ahead of his time. 

Ed Smith is a journalist and author, most recently of Luck. He is a former professional cricketer and played for both Middlesex and England.

This article first appeared in the 24 February 2017 issue of the New Statesman, The world after Brexit