The Law
Whilst theft is a criminal act, it is also a “tort” in civil law (delict in Scotland).
There are civil law remedies available for the torts of trespass and conversion
which arise from theft and damage.
A business invites its customers to its premises for the purpose of browsing and
purchasing goods and services. When a customer enters premises to steal or damage
goods or interfere with goods e.g. price swap or to procure services without payment,
they are acting outside that purpose and are committing a trespass. Where goods
are stolen this is also a conversion. Such acts are actionable in civil law.
A business employs staff to fulfil a specific role. Where staff steal or damage
goods, or procure services without payment, they are similarly committing a trespass
and conversion.
There is also contractual relationship between a business and its employees. There
are usually specific terms in a contract of employment and there are further implied
terms such as a duty of trust of confidence. These terms are breached where an employee
steals or damages goods, or conspires to do so. Civil remedies are therefore available
in both tort and contract where an employee causes loss and damage.
Where liability for trespass and/or conversion can be established, the wronged party
is entitled to recover its losses which were foreseeable. Damages are available
in respect of the goods damaged or stolen, and special damages are available for
all other foreseeable consequential losses such as the cost of the disruption to
the business, in investigation, security and administrative costs which naturally
flow from the wrongdoing.
These are long established principles in common law (Judgments handed down by the
Courts over hundreds of years). The principle was also reinforced by Parliament
by the enactment of the Torts (Interference with Goods) Act 1977 (“the Act”). Both
the common law and the Act provide for a wronged party to recover damages where
there has been a conversion of goods (ie a theft), a trespass to goods, or negligence
resulting in damage or loss to goods.
Any civil proceedings for recovery are entirely separate from criminal proceedings.