In the first part of this article we looked at some of the causal factors that contribute to false arrests as well as some preventative measure for reducing the risk of such an incident. In this article I would like to look at some of the more specific points around false arrest. I’m going to go back to that horrible moment when a false arrest occurs and look at the immediate aftermath of the incident. Following that we can discuss some of the long term legal, professional and emotional issues that need to be prepared for.
What is a false arrest?
False arrest occurs when a person is detained for a crime (usually theft in this context) which they haven’t committed. When we speak about the term arrested or detained we are talking about it in the context of a private security operative acting on behalf of a retailer. False arrest most commonly occurs in retail settings where a person is detained for shoplifting (theft) of store property and it then transpires that the person has not committed the offence. It is usually at this point that your career flashes before your eyes and your manager begins having a minor breakdown.
The immediate aftermath
The immediate action to be taken will depend greatly on when in the process you realise you have made an error. If you are still outside of the store it is best to tell the customer that there has been a misunderstanding, apologise and leave. Some will say that you should never apologise as this admits liability. I have some news for these people; YOU HAVE MADE A FALSE ARREST. YOU ARE ALREADY LIABLE. Whether you apologise to the customer or not it is not going to change this. Once you have apologised return to the store. Don’t ask the customer to return to the store unless they request to do so. The less time you spend in their presence the better. If they ask to speak to a manager, then this should be obliged.
If you have already returned to the store security office when you realise your mistake, then you are a little further in trouble but a similar process should be followed. If the customer wishes to leave after you discover your mistake, then obviously they are free to do so. DO NOT try to prevent them leaving or detain them further. If they wish to speak to a manager, then you should contact the most appropriate manager and ask them to attend. Notify the manager of what has happened and leave the room once they arrive. This is important for a few reasons:
- You are full of adrenaline and under huge stress. Trying to explain yourself out of this situation in front of your manager and the customer can only make things worse and you may cause further trouble if you make an inappropriate comment at this time. You can also place your manager in a more difficult position as a witness to what you say.
- The customer will be embarrassed, annoyed, angry and resentful towards you and with good reason. YOU are the issue right now and your continued presence will only make things worse and lessen your manager’s ability to manage the incident.
- You have much more important considerations at this time such as:
- Downloading CCTV footage of the incident.
- Trying to consider your actions rationally and figure out your error
- Writing your report
- Seeking out somebody you can trust to speak to about what has happened. It is moments like this when mentors in the security industry become a valuable asset.
From the responding manager’s perspective, they are not in a pleasant position. They are on the back foot and responding to a situation with very few positive viewpoints. As a manager you should take the customers details, apologise for the misunderstanding and don’t try to make excuses. Once the customer leaves the store you should ensure that your security employee is ok (they may have made a mistake and you may be furious but you still have a duty of care to them to ensure they are fit to continue work). Next ensure that the CCTV has been retained. Follow your company escalation policy (if one exists) and seek advice from your human resources and legal advisors as soon as possible.
Following on from a false arrest there will be a number of aspects to consider. Each of these aspects are equally important in terms of impact on both the employee and the company:
- Internal investigation
- Civil legal action
- Emotional impact
Usually after a false arrest there will be an internal investigation of the security operative’s actions and possible disciplinary action. You will likely have to attend an investigation meeting. You may even be suspended from work prior to this meeting. Don’t take this personally. It is standard procedure to protect the company from further incidents and protect you from further stress. Take this time and use it to prepare yourself for what’s ahead. During the investigation it will have to be ascertained if the false arrest was caused by:
- A genuine lapse in concentration or error of judgement on your behalf
- A deliberate breach of policy or procedure
- Some causal factors associated with improper training or a flawed policy or procedure.
- How much the customer’s own actions contributed to the incident?
Often it is discovered that it is a combination of some or all of the above. It will be up to you to justify your actions and get your point of view across. This is no time to be shy. If you feel the customer contributed to the incident, then explain why. If you feel a policy flaw or training error contributed, then say so. It may be worthwhile to contact a security consultant who will carry out an ECFA (Effects and causal factor analysis) to determine if there were other factors which may have contributed to your error. This may cost you some money but could potentially save your job. The company’s main focus will be to ensure there is no repeat of this incident. The more you can convince your employer that the incident wasn’t caused by a malicious or negligent act on your behalf the better for both sides. I’m not going to go into the process of an investigation in this article but suffice to say it isn’t a pleasant process for either side. Likely disciplinary action following the investigation can range from retraining to formal warnings and even up to dismissal in certain cases.
The likely response from the disgruntled customer will be to contact a solicitor for advice. A solicitor will most likely suggest taking a civil case for wrongful arrest. Wrongful arrest cases usually contain allegations of a number of civil torts including:
- Breach of Human Right to liberty & security
The civil case can be taken against you as an individual but this is rare. Generally, the defendant will be named as the retailer. This is possible due to a term called Vicarious Liability. This means that your employer is generally liable for your actions while you are acting in your capacity as an employee. The only thing that would prevent this being the case would be if you were to act far outside what would have been instructed to do or acted in a personally malicious way. Once a solicitor sends the initial letter to the retailer the insurance company will be notified and they will take over. They will seek all of the evidence including CCTV, reports, policies, training records, investing action notes etc. They will probably send an expert to investigate on their behalf and provide a report. The findings of this report will form the basis for the defence.
Many of these types of cases are settled prior to a court case by way of a financial settlement between the insurer and the customer. However, should the case proceed to court you will most likely be called as a witness. This means you will have to sit in the witness box and be questioned about your background in the industry, the incident, your actions and your motive. I have had the unfortunate experience of seeing many good security operatives have their career and their reputation torn to shreds by a barrister in a courtroom. Eventually the case will most likely lead to a compensation award to the customer. These awards in Irish courts are very inconsistent and can range anywhere from €10,000 to €40,000 plus legal costs.
Probably the most overlooked part of the entire false arrest scenario is the emotional impact it can have on the security operative themselves. Nobody seems to care about the guy who made the arrest. It was after all his/her own mistake which caused all of this. The emotional and psychological effect of something like this cannot be underestimated. The initial shock of the incident followed by the worry and stress of an investigate and having a civil case pending for many months or years would affect the vast majority of people. I mentioned earlier from a management perspective that it must not be forgotten that despite your mistake the company still has a duty of care to you and supports are available in most companies to assist with the after effects of an incident such as this.
I know from speaking to people who have been involved in false arrests that the 2 biggest impacts they suffer are a loss of confidence in their own ability and an intense feeling of guilt and embarrassment. It is easy for me to sit here and say that the best thing to do is to get straight back to work and forget about it. It’s easy because I’ve never been that guy. In truth it can be incredibly difficult. This section is aimed squarely at the colleagues of the person who makes such a mistake and the security community at large. We are a small community in this country and we have enough detractors. If your colleague needs somebody to talk to or some support during a time like this then be there. Even if it’s just a chat, a coffee or some advice. Mistakes happen and no matter how badly a person may mess up nobody deserves to feel that way about doing their job. For the individual involved never forget that you are defined by your achievements not your mistakes. This will pass.
Most of this article was written with the same principle of the previous one in mind. To plant the seed of doubt in a person’s mind who may be considering taking a chance on a risky arrest. I hope that the consequences outlined above will be enough to make you think twice about it. Stock loss and shrinkage are a fact of life in retail. False arrests don’t have to be. Use the tools at your disposal to prevent loss and don’t forget that arrest is just one tool. It may seem like the more glamorous of the options available but don’t ever forget the consequences of it when things go wrong.
If anybody would like to get in touch about anything discussed in this article or make comments or suggestions for further articles, please feel free to contact me at tonyobriensite.wordpress.com
BE SAFE AND BE SENSIBLE GUYS