Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Tuesday, 18 October 2011

On shoplifting

I read today about the Global Retail Theft Barometer 2011 compiled by the Centre for Retail Research. Based on a survey of major retailers in 43 countries, it estimates that the total global rate of 'shrinkage' (defined as inventory loss caused by theft or administrative error) was a massive $119 billion, of which $93 billion coud be attributed to theft either by employees or shoplifters.

The Report makes fascinating reading, not only for the highly specialised language (shrinkage, enhancing loss prevention etc), but because of what this tells us about responses to theft in this sector. Where we might expect to see criminal law as the primary response, it quickly becomes clear that forms of target hardening (use of security tags etc) and the management of inventories are seen as much more cost effective and efficient ways of dealing with the problem. This raises a number of questions about the use of criminal law and the criminalisation of shoplifting. Is the criminal law an appropriate response or is it conduct that might be better regulated by 'taxing' minor offenders? Is it a serious moral wrong in a world where consumer goods are in such wide circulation and of such little lasting value? Is it, perhaps, as is sometimes suggested (not least by the offenders themselves!), a victimless crime. I suspect that few retailers would agree with this - and given the scale of the problem revaled by the Report it is perhaps hard to suggest that this is an insignificant phenomenon. Of course, it might be the case that criminal law is not used because retailers just don't see it as being particularly effective - too slow, sentences too short, and not preventing serial offenders from repeating their conduct. But it might also be that the criminal law has been superseded in this area, as other modes of prevention are used, or the cost of theft is just seen as a side effect to the otherwise high profits. This is an open question, and it will be interesting to see if the book on Shopping and Crime to be published next year can unpick these kinds of issues.

It is worth noting, however, that shoplifting is a relatively recent invention. There has, of course, always been pilfering, but shoplifting as we know it emerged only with the development of large department stores in the late nineteenth century. These displayed goods in a different way, and encouraged the public to mingle with and touch the goods on display. Not surprisingly, an environment set up to seduce consumers into buying led not a few to steal. This, in turn, had an impact on the law of theft as cases addressed the nature of the relationship between store and consumer and the limits of permissible conduct within this new kind of space. Equally, the growth of supermarkets in the 1960s and 1970s led to a series of legal cases involving label switching and the question of when goods on a shelf ceased to be in the possession of the store.

The scale and scope of theft, then, is linked in interesting ways to types of shop, the kinds of goods which are sold there, and the shaping of permissible conduct within those spaces. This brings us back to the Global Retail Theft Barometer. What the Report documents, I would suggest, is precisely this issue of shaping conduct - of employees and putative shoplifters. But what is most striking about the language in which it does this is precisely that considerations of moral wrong or outrage have been replaced by a calculus of security.

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