Shoplifting at an all-time high: is a new offence of ‘assaulting a retail worker’ the answer?

Last week, the ONS published a report Crime in England and Wales: year ending December 2023 which revealed that the offences of theft from a shop are at the highest level in the last twenty years. The British Retail Consortium recently reported on the increasing number of incidents of violence and abuse against shop workers and suggested this goes hand in hand with the rise in shoplifting incidents.

The British Retail Consortium’s report suggests that incidents of abuse and violence against retail workers has increased by 50% in the period 2022-2023.

Earlier in April, the Government released a policy paper setting out the steps proposed to deal with these problems. Of significant interest is the proposal to introduce a new standalone offence of assaulting a retailer. The basis for this new offence is clearly to offer a further deterrent to prospective offenders and, given the clear link with theft offences and offences of a violent nature, to address the increase in shoplifting.

Although the wording and details of the proposed new offence is not yet known, it is interesting to examine the law as it stands at present for those that assault retail workers or steal from shops and how things may change in the future.

The present position

At present, an offender who assaults a shop worker may be charged with an assault by beating, or when the injuries sustained are more serious an assault occasioning actual bodily harm or grievous bodily harm. These are the same offences that would be applicable if the offender assaulted a random person in the street.

The Sentencing Guidelines, issued by the Sentencing Guidelines Council, for an assault by beating, indicate a range from a discharge up to six months in custody.

However, when it comes to sentencing for an offence that takes place against a shop worker, the Court may consider it to be aggravated and so the penalty will be more severe. For example, the Sentencing Guidelines for the offence of assault by beating set out that if the offence was committed against a person “providing services to the public” this should be considered an aggravating feature.

In the scenario where an offender assaults a shop worker in order to steal from the shop, the offence is likely to be considered significantly aggravated as it is committed in order to facilitate a further offence. In this situation, the offender is likely to be charged with an assault by beating and the offence of theft. When it comes to sentencing, unless the theft is of high value goods, the assault will carry the more onerous penalty. Although a separate penalty for the theft may be imposed, the Overarching Principles suggest that the sentence imposed will run concurrently given the offences arise out of the same incident or facts.

There is also scope for the offender to be prosecuted for robbery. The offence of robbery is set out in section 8(1) of the Theft Act 1968:

“A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”

The threshold for prosecuting a defendant for robbery is relatively high as the prosecution have to prove beyond all reasonable doubt that the threat or use of force was used in order to commit the theft. The sentencing guidelines for robbery start at a community order and can go up to life imprisonment in the most serious cases.

It would appear therefore that the law at present means offenders who commit assaults against retail workers receive more severe penalties than if the offence was committed against a random person in the street.

However, there have been numerous calls for a standalone offence and a petition to the government was set up in the recent past.

Proposed new position

The government’s policy paper proposes “a new bespoke offence of assaulting a retail worker”.

It is not clear at this stage whether there will be separate sentencing guidelines for this offence, and if there are, whether they will be more severe. However, from the policy paper, it appears that the government is planning on implementing mandatory ancillary orders to be imposed on an offender sentenced for this offence. One proposal is that an offender sentenced for this offence will be made subject to a Criminal Behaviour Order.

Section 330 of the Sentencing Act 2020 provides that a

“criminal behaviour order means an order which, for the purpose of preventing an offender from engaging in behaviour that is likely to cause harassment, alarm or distress to any person—

(a)prohibits the offender from doing anything described in the order;

(b)requires the offender to do anything described in the order.”

An example of a term contained within a Criminal Behaviour Order might be not to go to a particular shop. An offender who breaches an Order is guilty of a criminal offence and the penalties can often be severe.

The policy paper also indicates that there will be a presumption that an offender who is convicted of the new standalone offence for a third or subsequent time will be sentenced to a mandatory electronic monitor requirement as part of a community sentence.

It could be argued, however, that it would be surprising if an offender convicted for the third time for the same offence would not be facing a custodial sentence in any event.

Commentary

It appears as though the government plans to make the new offence a greater deterrent to potential offenders by introducing ancillary orders to sentences that are passed. However, it is submitted that separate and more severe sentencing guidelines for the new offence than the guidelines for a plain assault by beating will be crucial for it to act as a greater deterrent.

It should also be noted that in 2014 the government introduced legislation with the Anti-Social Behaviour, Crime and Policing Act 2014 arguably making low value shoplifting a less serious offence. This legislation made low value shoplifting (where the value of items stolen is £200 or less) a hybrid “summary only” offence, when it had been previously an “either-way” offence. The effect of this was that thefts under £200 carry a presumption of being dealt with in the Magistrates’ Court unless the defendant elects a trial in the Crown Court. A defendant convicted of thefts from a shop under £200 from a shop would also be protected by the limits of the Magistrates sentencing powers, and not be at risk of being committed for sentence to the Crown Court which has much greater sentencing powers.  It could be said therefore that this is another offence the government should be reviewing if they wish to make penalties for shoplifters more severe.