Self-restraint or self-defence is a tricky dilemma for the retail security officer, writes Blessing Isaackson, BA (Honours) University of Keele, CeMAP, BL, a former Metropolitan Police officer.
In the normal course of events, ordinary citizens faced with imminent or present threats of attack will instinctively defend themselves as do police officers and other public order operatives. But, it would seem that for security officers working in the retail sector force is an “option” to be applied as a “last resort.” The SIA and other stakeholders in the retail sector missed the opportunity to clarify the circumstances where that option can be exercised when they tossed the ball in the court of security companies to formulate “policies and guidance” on the use of force (Physical intervention: reducing risk, 2010, p23) . This was despite recognising the possibility that such employer policy could result in the restriction of the retail security officer’s right of self- Defence. The 2010 guide advised, “Employer policy should not affect the lawful rights of employees to protect themselves or others from imminent harm.”
The issue is important enough to deserve the SIA’s full attention. A loop hole that can lead to what, potentially, might be an unlawful restriction of the retail security’s right of self- Defence cannot and must not be left to the discretion of his employer. The security industry needs to design a template policy or guide consistent with the current law of self-defence and direct employers to adopt the policy.
Employers in the retail security industry are right to be concerned about indiscriminate application of force by few overzealous security guards and any self-restraint policy designed by them can only be justified if the restriction falls within the boundaries of what the law permits.
The instruction to apply force as a last resort poses a serious dilemma for the retail security officer who has to deal with violent situations almost every day. When a security officer is assaulted and battered by a customer or a shoplifter does he exercise self-restraint or defend himself? What does last resort mean? How does he know when he has reached the endpoint where he can apply force? Unfortunately, the security officer often finds he is searching for the right balance even in the face of immense provocation because of lack of clarity on how to deal with these situations has not been remedied by the SIA and the 2010 report has not defined what constitutes last resort.
Force as a last resort
The retail security industry in encouraging self- restraint might inadvertently be limiting the security officer’s right to defend him or herself. It is true some retail security guards get carried away and apply force at the slightest provocation and such behaviour raise customer care issues at the very least and at worst all kinds of legal problems for the retail company for whom the approved contractor works. The wrongful application of force or the inappropriate use of physical control techniques by security guards render the retail security company and retail companies that employ them vulnerable to vicarious claims for damages by victims of injuries inflicted by security officers.
Also, those who argue that force should only be used as a last resort do so because of their belief that it is reasonable to attempt alternative measures to force first. The application of the principle of last resort does not work in all situations. There are circumstances where it is just not possible to resort to alternative means of resolving a violent situation, for example, “if there is no reasonable expectation that such alternatives will be successful” (1982: 75).
It is rather difficult and even unfair attempting to explore alternatives to resolving a conflict with someone who is aggressively approaching you with a knife with the intention of attacking you or a customer or member of staff in a store where you work as a security officer. The natural human instinct is either to run or, if that is not a feasible option, to disarm the aggressor decisively with a level of force capable of stopping the aggressor. Waiting to the last resort might not be practicable in those circumstances and may well be dangerous to the health of the security officer.
The law recognises the natural human instinct for self -preservation and self-defence and consequently makes provision for self-defence in our legal system. If the law recognises that private citizens can apply force to defend themselves and most private citizens do not undergo the physical control training that security guards are required to undergo as part of their training, it beggars belief that security officers are required to apply force only as a last resort.
The last resort argument becomes even more untenable because it appears to be inconsistent with the position of the common law and statute, which permits the use of force to deal with a violent situation as long as the force used is consistent with the requirements of the law.
Encouraging self-restraint is laudable and gratifying to the pacifist and might even be good for the Security employer’s business but dangerous to the security officer and lucrative for employment and personal injury lawyers who have to pick the pieces when the security officer gets injured waiting endlessly for the elusive last resort! Employers therefore have the burden of clarifying the endpoint at which force becomes inevitable and not doing so could open them to claims of negligence if an officer prevaricates to the point where it becomes too late to defend himself, because they have been instructed to wait for an unclear endpoint.
The retail security employer does need to look too far for the clarifications and guidance as they can be found in the common law, CPS guidelines on self-defence and statute.
Crown Prosecution Service guidelines and the law on self-defence
Everyone, whether a private citizen or public officials executing public order duties, can lawfully apply reasonable force to defend himself or another person or property or prevent a crime, or make a lawful arrest. The force applied cannot be disproportionate otherwise the defendant will forfeit the defence of self- defence.
What this means is that the store detective, door supervisor or security guard working in a store can use reasonable force to defend himself or protect a member of staff or customer who has or is about to suffer violence at the hands of a suspect. Also a person who enters a store and wilfully damages or steals property belonging to the store can expect a security officer to detain him with reasonable force pending the arrival of the police as should a suspect trying to evade capture or resisting arrest for an offence committed whilst in the store. In each of these cases, if violence is used, the guiding principle for the CPS is the preservation of the rule of law and the maintenance of peace.
The CPS will not, generally, prosecute a security officer who acted “reasonably and in good faith” to defend himself or to prevent the commission of a crime or the arrest of an offender. The prosecutor is required to consider the evidence before him and decide whether the evidence is sufficient to confirm an offence and if he concludes that there is insufficient evidence to sustain self-defence he has no choice but to prosecute the security officer in the public interest prosecution will not be pursued if there is evidence of self-defence.
The law
A security officer can apply force to defend himself as long as the force used was reasonable, necessary and proportionate in the circumstance. In determining whether the force used by a security guard was reasonable, reference is made to s 76(3), (4), (5) of the Criminal Justice and Immigration Act 2008 which, in a nutshell , provides that if a security guard believes that he used reasonable force to defend himself in a particular set of circumstances then the law will allow him to rely on that belief even if the belief arose from an unreasonable mistake as long as the mistake was not induced by alcohol or drugs.
If a security officer can show that he did what he honestly and instinctively thought was necessary to defend himself that is what the court will rely on as proof that the action was reasonable.
The security officer derives his power to defend himself from the Common law, s 3(1) of the Criminal Law Act 1967 and s76 of the Criminal Justice and Immigration Act 2008. However, there is a subtle difference in the power given under the common law and that offered by s3(1) of the Criminal Law Act 1967.
A retail security officer who defends himself against an attack from a shoplifter will be doing so legally because of the power he derives from the common law, but he would not be protected by s3(1) of the Criminal law Act 1967, if he defends himself against an aggressive shoplifter who has entered a store from which he had been banned unless having being previously banned from a store the shoplifter enters the store as a trespasser to commit a crime. This is because section 3(1) CLA 1967 protects the right of self -defence in the prevention of a crime or in circumstances where reasonable force was applied in the arrest of someone who has committed a criminal offence. In other words you cannot rely on section 3(1) of the Criminal Law Act 1967 to forcefully eject a trespasser from a store, unless the trespasser was involved in the commission of an offence while in the store. However, common law affords protection in civil and criminal cases as long as the force used is reasonable and necessary.
Conclusion
Retail security officers should never be put in a situation where they have to decide whether or not to use force if the law already makes that choice available to them. Employers must only give instructions that are consistent with the law. As part of their training retail security officers know they should provide good customer service and not invite confrontation, but if attacked or put in fear of an imminent threat to their safety or to the safety of customers or retail staffs, they must clearly understand their right to apply reasonable and proportionate force as long as they honestly believe the application of such force was necessary in the circumstance.
The application of force as a last resort must not be imposed through any employer policy or guidance but should be left to the dynamic assessment of the security officer who is facing the threat or risk of injury. What the employer can do is to manage the risk through a combination of physical control training, conflict management solutions whilst emphasising the common law and statutory rights of the officer to defend himself.
