Civil law is concerned and deals with the relationship between individuals and relates to civil rather than criminal wrongs with the aim of compensating the suing party for such wrongs (Gibson, Rigby, Ryan & Tamsitt, 2001, p28.1). A civil action is generally brought by the party who has been injured or otherwise suffered some form of loss as the result of a wrong which only directly affected him (e.g. trespassing into private property).
When a civil law is broken, legal action is brought by an individual against another for some form of legal remedy, e.g. damages. In civil suits, the party initiating legal proceedings is referred to as the plaintiff and the party being sued is called the defendant. For a plaintiff to successfully seek damages from the defendant he or she needs to prove their case, this is called the burden of proof. The amount of proof required by the law is called the standard of proof and in civil cases the standard of proof is assessed on the balance of probabilities (Dowler & Miles, 2001, p.32).
Private security officers working in an organisation have limited powers when compared with public police officers. In most instances the private security officer only possesses the power of citizen's arrest. In most civil actions, especially those involving private security officers, the basis is not on intended harm but a claim that the defendant was negligent (Purpura, 1998, p 61). Negligence is defined as the liability for breach of a duty to take reasonable care (Gardiner & McGlone, 1998, p 8). Security managers in organisations should take necessary action to ensure the safety and security of individual on their premise.
There have been countless lawsuits against the management of organisations for failing to provide adequate protection for it stakeholders. An example of such a civil case is Walter A Stewart v Federated Department Stores, No.15124, Connecticut Supreme Court in 1995 (Purpura, 1998, p 63). Marion Javery was returning to her car after shopping at Bloomingdales departmental store. She was then approached from behind by a man and he made it clear to her that he was robbing her. Javery resisted and thus she was stabbed and left to die in the car park. Walter Steward, the administrator of her estate, sued Bloomingdale's parent company, Federated Department Store Inc, for not undertaking adequate security measures to protect Javery from intended harm. The standard of proof for this case is strong; the company had 5 security officers and only 1 was stationed at the car park and he was usually called away to monitor the unloading dock, more than 300 florescent light bulbs were not working on that day, there were no gates or fences to keep undesirable people from the car park, the store was in a high crime area, and finally despite numerous requests from employees for increased security, nothing was done on the part of the management. As a result the Connecticut Supreme Court upheld a USD$1.5 million liability award to the estate of Marion Javery.
Criminal law on the other hand is concerned about protecting society from people who commit crimes as prescribed by the common and statutory laws. Criminal law's purpose is conventionally stated as being retribution, deterrence, restraint, and rehabilitation (Gillies, 1990, p 6). In criminal cases the prosecution represents the public or society in taking legal action against the party whom it considers to have committed a crime and seeks to have that party punished. Similar to civil law, criminal law requires the party commencing legal proceedings to carry the burden of proof i.e. the prosecutor.
However since criminal penalties are far more severe than penalties for civil suits, the law needs a stricter standard of proof. For the prosecution to successfully convict the defendant, it needs to prove the case beyond any reasonable doubt (Dowler & Miles, 2001, p.33).
Criminal liability is most often used against private security personnel in cases of assault, battery, manslaughter, and murder (Fisher & Green, 1992, p 150). Some of the ways security personnel may defend themselves in a court of law is to argue that they were entitled to use force in self defence or that they had made a reasonable mistake which would neglect criminal intent.
Security personnel may also be held liable for failing to perform the job they were employed to do. For example if a security officer working in an organisation were to witness someone getting robbed at knife point and does nothing to assist the victim, he or she would be deemed, under the eyes of the court, as to be criminally liable for failure to perform a security officer's duties. Therefore it is the task of the management of the security department in the organisation to educate its personnel on their roles and responsibilities as security personnel. These education programmes should also include educating them on their criminal liability.
Another example of security personnel breaching criminal law is with reference to the Surveillance Device Act 1998, Section5 under the Western Australian Consolidated Acts; A Security Manager suspects that employees of the manufacturing department are smoking in an unauthorised room in the company premises. He then installs surveillance cameras to catch the culprits. After a few weeks he captures video footage of 3 employees smoking in the room and reports them to the manufacturing manager. The employees are suspended for 3 days without salary. Under the Surveillance Device Act 1998 Section5, the employees can take legal action against the security manager for recording a private activity that he is not a party of. He can face up to AUD$5,000 fine or 12 months or even both.
As a security manager in an organisation, the above mentioned factors as well as others of similar scope must be taken into consideration when drawing up an operating plan for the security department. The Standard Operating Procedures (SOP) should pay due consideration to the civil and criminal laws in order for a trouble free operation of the department. Each and every employee in the security department must be familiar with the consequences the organisation and more importantly the employee themselves face when the SOP is breached.
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References Cane, P., & Trindade, F.A. (1988). The law of torts in Australia. Melbourne: Oxford University Press.
Clark, E., & Griggs, L., & Iredale, I., & Streeter, J. (1999). Manager and the law. Sydney: LBC Information Services.
Dowler, W., & Miles, C. (2001). A guide to business law (14th ed). Sydney: LBC Information Services.
Fisher, R.J., & Green, G., (1992). Introduction to security (5th ed). Boston: Butterworth Heinemann.
Gardiner, D., & McGlone, F., (1998). Outline of torts (2nd ed). Chatswood, NSW: Butterworth.
Gibson, A., & Rigby, S., & Ryan, H., & Tamsitt, G. (2001). Commercial law in principal. Pyrmont, NSW: Lawbook Co
Gillies, P., (1990). Criminal law (2nd ed). North Ryde, NSW: The Law Book Company Limited.
Purpura, P.P., (1998). Security and loss prevention (3rd ed). Boston: Butterworth Heinemann.