Politicians love creating specific new offences to look like they’re tackling a problem, but all it does is make the statute book more complicated without addressing the root of the problem, says Eliot Wilson
Retail employees should be safe in their place of work, under the protection of the law. That goes without saying, and it is shocking that Tesco and Co-op, for example, have reported violence against their staff increasing by a third year on year. In the first six months of 2023, Co-op recorded 175,000 incidents of assault, abuse or antisocial behaviour against staff. No government should be willing to countenance that level of everyday lawlessness.
Last week, the Prime Minister launched a “retail crime crackdown”. As part of this, the government will create a specific criminal offence of assaulting a retail worker, and those found guilty could be sentenced to six months in prison, issued with an unlimited fine or made subject to a Criminal Behaviour Order which prevents them from returning to the premises where they committed the offence.
Rishi Sunak announced he was “sending a message to those criminals… who think they can get away with stealing from these local businesses or abusing shopworkers, enough is enough”. The Prime Minister feels comfortable with no-nonsense, tough-on-crime rhetoric, and he will have been pleased by the positive reaction of the retail sector. Helen Dickinson, chief executive of the British Retail Consortium (BRC), expressed relief that “the voices of the three million people working in retail are finally being heard”.
It is not at all clear, however, that a new offence will address the root of the problem. According to Co-op, last year the police failed to attend four out of five cases of shoplifting, which often involved abuse or assault, and earlier this year, the BRC’s crime survey showed 60 per cent of respondents rated the police response as “poor” or “very poor”. This is clearly the first-order problem: the police are simply not showing up to arrest suspects and potentially bring them to prosecution. That quickly creates an atmosphere of impunity, and the effect on the rule of law is corrosive.
The crime and policing minister, Chris Philp, said that by creating a specific offence of assault against retail workers “we’re sending a clear message to criminals that enough is enough”. Meanwhile, the BRC has argued that it will ensure that “the police have data that allows them to understand the scale of the issue, and to allocate sufficient resources to deal with it”. These are both arguable points: but they should not be the primary purpose of the criminal law.
Governments easily fall into the bad habit of declaratory legislation. Whether it is to be seen to address a specific problem, or to respond to a public campaign, it is easy to pass a new law: provided you can manage its scrutiny by Parliament, it is effectively free, and will attract valuable media coverage. But it is sometimes unnecessary.
The Assaults on Emergency Workers (Offences) Act 2018 created a separate crime of assaulting emergency personnel, but it did not criminalise anything which had previously been permissible. Equally, when the Voyeurism (Offences) Act 2019 was introduced to make “upskirting” a specific offence, sceptics pointed out that the practice had always been illegal, and could be prosecuted as “outraging public decency” under the Criminal Justice Act 2003.
This matters because legislation accretes. Every offence added to the statute book makes the law more complex than it had previously been. By the early 2010s, new legislation was creating 30,000 individual new legal effects every year. The coalition government introduced the Good Law Initiative which was designed to make legislation simpler and easier to understand, but by 2020 it had sadly been deprioritised.
More importantly, however, introducing this new offence is meaningless if the police lack the resources to enforce it. Indeed, it is worse than that: if a new law is passed and then broken with impunity, it damages the criminal justice system. Retailers understandably want to protect their workforce, but they should have stayed firm and insisted that the government give the police the resources necessary to tackle crime by enforcing existing law.
Instead, it seems that the government is pinning its hopes on threats and tough talking. A disengaged and unenthusiastic electorate may fleetingly think this is real progress, but it is hard to imagine that professional criminal gangs will be so easily persuaded.
Eliot Wilson is co-founder of Pivot Point