The £15m Civil Recovery "Racket"

Originally posted at Liberal Conspiracy.
I was in the House of Commons Committee Room 9 earlier this week, listening to the 5th sitting of the Defamation Bill Committee (on behalf of English PEN and the Libel Reform Campaign). During the exchanges, Denis MacShane brought to light a case where the Citizens Advice Bureau and others have been threatened with libel action for discussing and criticising civil recovery schemes, specifically the practices of a company called Retail Loss Prevention.

From the Hansard:

[T]he law firm Schillings is showering defamation writs on the citizens advice bureau—one of the most prestigious and respected of all the voluntary organisations that we all have relationships with—as well as the law firm Bates Wells and Braithwaite, the Justice Gap website and the consumer websites Legal Beagles and Consumer Action Group.
Why is Schillings doing that? It is because there is an extremely unpleasant practice now taking place in our retail industry—developed, I am sad to say, under a Labour Government—called civil recovery. In essence, 90% of all shoplifting in our stores is organised by gangs. About 8% or 9% is done by in-house stealing. The tiny 1% is done—frankly, for the most part—by rather sad people. I am not condoning shoplifting; none of us would. Quite a lot of people who walk out of Tesco or Boots have not put in the correct barcode. We have all had that problem now since we have had to, as it were, do our own till accounting. Then the people are pulled back into the shop, taken into a little room and told that they could face prosecution, but Tesco, TK Maxx, Boots or Primark will not prosecute. Instead they will ask for names and addresses and a few weeks later a company in Nottingham called Retail Loss Prevention … sends a threatening letter to the person saying that unless they immediately pay £150 or £180, they may face prosecution.
Most of the people are children or adolescents, often from families without much structure. They are terrified out of their wits. Retail Loss Prevention … says that this practice has been approved by the Association of Police Chief Officers and is thoroughly legal. It is not. It is a threat to obtain money, because the point of detention is not to go forward and hand the shoplifter—if that is the case, and we are not condoning it—over to the police for prosecution.
… 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. These bodies corporate are going to another body corporate called Retail Loss Prevention and getting it to obtain money from very vulnerable people. When the CAB, also a body corporate, seeks to take up the cases, it then faces defamation writs from Schillings.

… It is no accident that the practice, which is quite widespread in America, was unknown in Britain until 1998. It started with the arrival en masse in our high streets of TK Maxx and Superdrug, two American companies.

One of the organisations that has received threatening letters is the Legal Beagles website. Kate Briscoe, one of the people who runs the site, explained more about their tribulations at a recent rally for Libel reform [video]. Legal Beagles have posted the letter they received from Schillings on their site.
This issue is a fantastic example of why we need Libel Reform. This is an industry that has been acused of taking advantage of vulnerable people, and short-circuiting the legal process in an extremely opaque manner. Discussing its practices, and reporting on the court cases in which it has been involved, is clearly in the public interest. Yet the current law – and the new measures proposed in the Defamation Bill – do not do enough to protect and promote public interest reporting. Its noteworthy that those who have come under fire for bringing this issue to light are not journalists, but Internet forums and the CAB. A simple codification of the ‘Reynolds Defence‘ for responsible journalism may work for newspapers with their in-house legal teams, but does not help an ordinary person, trying to participate in civil society via a blog or forum. The Government needs to go further.
Denis MacShane’s speech also presents an awkward moment for Labour and the Left. The rise of civil recovery happened in the past decade, under a Labour Government. Since Ed Miliband has got into the habit of apologising for bad Labour policies, perhaps someone from the Front Bench would apologise for allowing the rise of a practice that replaces due process for young, poor and vulnerable people?

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