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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Donald Trump ushers in a new era of kakistocracy: government by the worst people

Trump will lead the whitest, most male cabinet in memory – a bizarre melange of the unqualified and the unhinged.

“What fills me with doubt and dismay is the degradation of the moral tone,” wrote the American poet James Russell Lowell in 1876, in a letter to his fellow poet Joel Benton. “Is it or is it not a result of democracy? Is ours a ‘government of the people by the people for the people’, or a kakistocracy rather, for the benefit of knaves at the cost of fools?”

Is there a better, more apt description of the incoming Trump administration than “kakistocracy”, which translates from the Greek literally as government by the worst people? The new US president, as Barack Obama remarked on the campaign trail, is “uniquely unqualified” to be commander-in-chief. There is no historical analogy for a President Trump. He combines in a single person some of the worst qualities of some of the worst US presidents: the Donald makes Nixon look honest, Clinton look chaste, Bush look smart.

Trump began his tenure as president-elect in November by agreeing to pay out $25m to settle fraud claims brought against the now defunct Trump University by dozens of former students; he began the new year being deposed as part of his lawsuit against a celebrity chef. On 10 January, the Federal Election Commission sent the Trump campaign a 250-page letter outlining a series of potentially illegal campaign contributions. A day later, the head of the non-partisan US Office of Government Ethics slammed Trump’s plan to step back from running his businesses as “meaningless from a conflict-of-interest perspective”.

It cannot be repeated often enough: none of this is normal. There is no precedent for such behaviour, and while kakistocracy may be a term unfamiliar to most of us, this is what it looks like. Forget 1876: be prepared for four years of epic misgovernance and brazen corruption. Despite claiming in his convention speech, “I alone can fix it,” the former reality TV star won’t be governing on his own. He will be in charge of the richest, whitest, most male cabinet in living memory; a bizarre melange of the unqualified and the unhinged.

There has been much discussion about the lack of experience of many of Trump’s appointees (think of the incoming secretary of state, Rex Tillerson, who has no background in diplomacy or foreign affairs) and their alleged bigotry (the Alabama senator Jeff Sessions, denied a role as a federal judge in the 1980s following claims of racial discrimination, is on course to be confirmed as attorney general). Yet what should equally worry the average American is that Trump has picked people who, in the words of the historian Meg Jacobs, “are downright hostile to the mission of the agency they are appointed to run”. With their new Republican president’s blessing, they want to roll back support for the poorest, most vulnerable members of society and don’t give a damn how much damage they do in the process.

Take Scott Pruitt, the Oklahoma attorney general selected to head the Environmental Protection Agency (EPA). Pruitt describes himself on his LinkedIn page as “a leading advocate against the EPA’s activist agenda” and has claimed that the debate over climate change is “far from settled”.

The former neurosurgeon Ben Carson is Trump’s pick for housing and urban development, a department with a $49bn budget that helps low-income families own homes and pay the rent. Carson has no background in housing policy, is an anti-welfare ideologue and ruled himself out of a cabinet job shortly after the election. “Dr Carson feels he has no government experience,” his spokesman said at the time. “He’s never run a federal agency. The last thing he would want to do was take a position that could cripple the presidency.”

The fast-food mogul Andrew Puzder, who was tapped to run the department of labour, doesn’t like . . . well . . . labour. He prefers robots, telling Business Insider in March 2016: “They’re always polite . . . They never take a vacation, they never show up late, there’s never a slip-and-fall, or an age, sex or race discrimination case.”

The billionaire Republican donor Betsy DeVos, nominated to run the department of education, did not attend state school and neither did any of her four children. She has never been a teacher, has no background in education and is a champion of school vouchers and privatisation. To quote the education historian Diane Ravitch: “If confirmed, DeVos will be the first education secretary who is actively hostile to public education.”

The former Texas governor Rick Perry, nominated for the role of energy secretary by Trump, promised to abolish the department that he has been asked to run while trying to secure his party’s presidential nomination in 2011. Compare and contrast Perry, who has an undergraduate degree in animal science but failed a chemistry course in college, with his two predecessors under President Obama: Dr Ernest Moniz, the former head of MIT’s physics department, and Dr Steven Chu, a Nobel Prize-winning physicist from Berkeley. In many ways, Perry, who spent the latter half of 2016 as a contestant on Dancing with the Stars, is the ultimate kakistocratic appointment.

“Do Trump’s cabinet picks want to run the government – or dismantle it?” asked a headline in the Chicago Tribune in December. That’s one rather polite way of putting it. Another would be to note, as the Online Etymology Dictionary does, that kakistocracy comes from kakistos, the Greek word for “worst”, which is a superlative of kakos, or “bad”, which “is related to the general Indo-European word for ‘defecate’”.

Mehdi Hasan has rejoined the New Statesman as a contributing editor and will write a fortnightly column on US politics

Mehdi Hasan is a contributing writer for the New Statesman and the co-author of Ed: The Milibands and the Making of a Labour Leader. He was the New Statesman's senior editor (politics) from 2009-12.

This article first appeared in the 19 January 2016 issue of the New Statesman, The Trump era