Low Value Shoplifting: Simplifying or Complicating the System?

02 Jun

Until earlier this month, stealing from a shop would colloquially be termed shoplifting but would simply amount to an offence of theft under section 1 Theft Act 1967. On the 13th May 2014 the new offence of ‘low value shoplifting’ came into existence by virtue of Section 176 Anti-Social Behaviour, Crime and Policing Act 2014, which has inserted into the Magistrates Court Act 1980 the new Section 22A and created a new, summary only offence.

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Shoplifting

Until earlier this month, stealing from a shop would colloquially be termed shoplifting but would simply amount to an offence of theft under section 1 Theft Act 1967. On the 13th May 2014 the new offence of ‘low value shoplifting’ came into existence by virtue of Section 176 Anti-Social Behaviour, Crime and Policing Act 2014, which has inserted into the Magistrates Court Act 1980 the new Section 22A and created a new, summary only offence.

It is clear that the intention behind the creation of the new offence is to streamline the processes and attempt to deal with such cases proportionately and more efficiently, to which there can be no objection. The question remains whether this will be achieved or if in fact the creation of the ‘low value shoplifting’ will have, as is often the case, unforeseen consequences?

Whilst the new offence is summary only and therefore the Magistrates court cannot decline jurisdiction or commit for sentence, the legislation makes clear that there is no intention to permanently deprive an adult defendant of his or her right to election; this new offence is a summary only matter unless the defendant seeks a trial by judge and jury in the magistrates court (Section 22A (2) MCA 1980). Therefore as a matter of procedure once the case is classified as ‘low value shoplifting’ a defendant will still need to be advised as to the right of election and all the consequences of consenting to be tried summarily as opposed to going before the Crown Court.

The definition of what amounts to low value shoplifting can be found in Section 22A (3) MCA and essentially means an offence under Section 1 TA as before, along with the requirements that:

a.    the value of the goods do not exceed £200; and

b.    that the goods were being offered for sale in a shop or any other premises, stall, vehicle or place from which there is carried on a trade or business and that at the time of the offence; and

c.    that the person accused was, or was purporting to be a customer of the person offering the goods for sale. 

In order to determine the question of whether the value exceeds £200 one must take the value of the goods at the time they were being offered for sale and the alleged offence was committed rather than the date of the hearing; regardless of whether the Boxing Day sales have slashed the prices since, it is the date of the offence that is relevant. Further, if a defendant has been on a shoplifting spree it is the total aggregate amount that must be considered; two offences of £100 each would fall under the new summary only provisions, two or more offences of £101 each would not (Section 22A (4) MCA).

The requirement for the person accused to have been, or purported to have been, a customer appears an unusual element to have included in the definition of the offence. How does one prove to the criminal standard that the defendant was, or was purporting to be, a customer? In some cases this will be easy but what about the situations which are akin to ‘grab and dash’? A defendant who forms a deliberate intention to go into a shop and steal something without doing anything to distract or attempt to conceal their true motives might not be said to be ‘purporting to be a customer’; it surely cannot be the intention to create a defence for these offenders?  It appears that an unnecessary evidential burden may have been introduced into the new offence which requires some evidence of deception in order to prove the offence beyond all reasonable doubt; only time will tell if this becomes an issue when these matters are contested.

It appears to be anticipated that these matters won’t be contested, or at least it is unlikely that they will be as the new offence is one to which a defendant can enter a plea by post if they so choose. This presumably will lead to less people being charged and bailed to attend court and more summonses and paperwork for the court. One wonders how a court can be completely satisfied that a defendant understands their right to election without requiring the attendance of the defendant. How many defendants who are entitled and eligible to the assistance of a duty solicitor will simply enter a plea from home without legal advice? If a not guilty plea is to be entered, can the court really make appropriate progress to list the trial without the defendant present? How will the court be able to accurately identify the issues, consider the necessary witness requirements, special measures, hearsay, bad character, section 10 admissions? It is likely that if there is no defendant and no defence lawyer present when these matters are determined then they will rear their heads again on the day of trial potentially leading to aborted trials and ineffective hearings. If a plea by post is to be guilty, one might still need to adjourn for sentence and require attendance.

It may be that in due course new guidelines will be issued but at this time the magistrates’ sentencing guidelines for theft from a shop range from a discharge through to custody. The maximum sentence remains at 6 months in custody (to be increased to 51 weeks when Section 281 (4) and (5) CJA 2003 comes into force. Quite often cases where guilty pleas are entered are dealt with by stand-down pre sentence reports on the same day and the case concluded. There will now be a requirement if the court wishes to do anything other than fine a defendant, to require them to come for sentence in any event. It may not be possible for the probation service to get in contact with the defendant before the court hearing and this is going to lead potentially to wasted court time and ineffective hearings.

How does low value shoplifting impact on the right to bail? Now summary only, the grounds for seeking a remand in custody would seem to be extremely limited. In cases of persistent shoplifters who posed a bail risk in terms of further offences, the Crown would have previously been able to rely upon an antecedent history of offences on bail, along with a realistic prospect of a custodial sentence, to seek a remand in custody. Now, unless the Crown can show that there are substantial grounds to believe that the defendant would commit offences on bail likely to cause injury to an associated person (most commonly used and relied upon in domestic violence cases for obvious reasons) it seems unlikely that the persistent shoplifter will be remanded into custody. This may of course free up much needed places in the prisons, but at the same time will potentially lead to further offences being committed, thus clogging up the court system further and causing further economic loss to local businesses and communities.

There is no explicit reference to Section 127 MCA and the question of laying of information within 6 months. Of course ordinarily there are strict rules about starting proceedings within 6 months of the offence for summary only offences, but this is a summary only offence with a right of election and therefore is still triable on indictment. Much like the ‘summary only’ criminal damage under £5000 which technically remains either way for the purposes of instigating proceedings, it is anticipated that the same situation will apply to low value shoplifting.

The low value shoplifting is still a very new creation and one can see the reasons and motivation behind it, especially when considering the not unsurprising statistics that 90% of the 75,000 plus cases of theft from a shop involve values of less than £200 . Nevertheless, it is not until offences are put through the court system that one sees whether they really address the problems society faces, and shoplifting is a huge burden on local communities in a fragile economic climate. Justice must be done, but justice must also be seen to be done, and one wonders whether ‘downgrading’ an offence of theft will be seen by the public as justice at all?

Gemma White 

12 College Place

 

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