Theft,robbery and burgarly Revision Notes PDF

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CRIMINAL LAW THEFT, ROBBERY AND BURGLARY NOTES...THEFTINTRODUCTION⇒ Section 1 of the Theft Act 1968 defines theft: "A person is guilty of theft if he dishonestly  appropriates property b...

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CRIMINAL LAW THEFT, ROBBERY AND BURGLARY NOTES… THEFT INTRODUCTION ⇒ Section 1 of the Theft Act 1968 defines theft: "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it" ⇒ There are 5 elements which will each be explored, although not necessarily in order. A person is guilty of theft if he or she:  (1) Appropriates;  (2) Property;  (3) Belonging to another;  (4) Dishonestly;  (5) With an intention permanently to deprive. ⇒ The actus reus of theft is, therefore, appropriating property belonging to another. The mens rea is dishonesty and an intention permanently to deprive. 1. Property INTRODUCTION ⇒ Section 4(1) of the Theft Act 1968 defines property to include "money and all other property, real or personal, including things in action and other intangible property"    

Real property means land Personal property is property which is not land A thing in action (i.e. a 'chose in action') means a property right that can be claimed in a court action e.g. a debt 'Intangible property' includes patents and copyrights → so if you purport to sell someone else's rights under patent, that is theft. LAND

⇒ Land cannot be physically stolen; however, you can be guilty of theft of land in three circumstances: 

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(1) If the defendant is acting as a trustee (in simple terms, this means they are holding the land for someone else) and sell the land they may be convicted of theft: section 4(2) (a) of the Theft Act 1968 (2) If the defendant is not in possession of some land and removes items forming part of that land - e.g. taking topsoil, a rose bush, tiles from a roof, crops etc. - they may be convicted of theft. However, note, a person who picks wild mushrooms, flowers, or fruit

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will not be convicted of theft, so long as the picking is not done "for reward or for sale or other commercial purpose" (s4(3) Theft Act 1968). (3) If the defendant has proprietary interest as a tenant and removes fixtures he/she may be convicted of theft. For example, if, as a university student in halls, you take something fixed (e.g. your desk), this will be theft. WILD CREATURES

⇒ A wild creature that is not tamed nor ordinarily kept in captivity (or its carcass) cannot be stolen. Cresswell v DPP [2006] stated, for example, that wild badgers cannot be stolen. ⇒ Exception: a wild creature can be stolen where it has been, or is being, "reduced into possession" (i.e. captured) by or for another person (and has not since been abandoned). INFORMATION ⇒ Information is not property so cannot be stolen. See, for example, the case of Oxford v Moss (1979). ELECTRICITY ⇒ It seems that electricity is not property, although there is a specific offence under section 13 of the Theft Act 1968: “A person who dishonestly uses without due authority, or dishonestly causes to be wasted or diverted, any electricity shall on conviction of indictment be liable to imprisonment for a term not exceeding 5 years". DEAD BODIES ⇒ Dead bodies are usually not property (R v Sharpe (1857)) and bodily substances only become property if given to someone else to control (e.g. urine sample to police, as in R v Welsh [1974]). 2. Belonging to another TITLE ⇒ Usually whether property belongs to another is easy to establish. However, there are some borderline cases dealt with by the four subsections in section 5 of the Theft Act 1968. INTRODUCTION ⇒ Usually whether property belongs to another is easy to establish. However, there are some borderline cases dealt with by the four subsections in section 5 of the Theft Act 1968. SECTION 5(1) THEFT ACT 1968

⇒ s.5(1): "Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest)". ⇒ This means that property doesn't just belong to the owner (i.e. a person having a 'proprietary right or interest' in property), but property also belongs to anyone with possession or control of property. See, for example, the case of R (Ricketts) v Basildon Magistrates’ Court [2010]. ⇒ Note, possession or control does not have to be lawful possession or control (R v Kelly [1998]). See the case of R v Smith [2011]. ⇒ Furthermore, an owner can be convicted of theft of his own property (so long as, at the time, the property in question "belonged to another"). See, for example, R v Turner (No. 2) (1971). SECTION 5(2) THEFT ACT 1968 ⇒ s5(2): "Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an invention to deprive of the property any person having that right". ⇒ In other words, this involves trustees theft from a trust. Property in trust is normally held by a trustee for the benefit of someone else (i.e. a beneficiary). However, here, this subsection deals with property of trusts which do not have specific beneficiaries (e.g. charitable trusts). ⇒ In such a case the property shall be regarded as belonging to those entitled to enforce the trust e.g. the Attorney General in the case of charitable trusts. SECTION 5(3) THEFT ACT 1968 ⇒ s5(3): "Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other". This subsection deals with the situation where a defendant is given property and is under an obligation to deal with that property in a particular way. ⇒ See the cases of R v Hall [1973] and R v Wain [1995]. 

SECTION 5(4) THEFT ACT 1968 ⇒ This section says that if a person gets property by mistake it must be returned. See, for example, the case of Attorney-General’s Reference No 1 of 1983 [1985].

3. Appropriation INTRODUCTION ⇒ Section 3(1) Theft Act 1968: "Any assumption by a person of the rights of an owner amount to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner". ⇒ The case law has shown appropriation to mean where the defendant has assumed any of the rights of the owner → it is therefore appropriation to touch someone else’s property, offer it for sale, or destroy it. ⇒ See the cases of R v Gomez [1993] and R v Hinks [2001].

4. Intention permanently to deprive CORE MEANING ⇒ The core meaning of the requirement that the defendant must intend to permanently deprive is straightforward. ⇒ The requirement means that borrowing does not normally amount to theft, even if it is borrowed without consent → although borrowing may become theft if it carries on for too long e.g. if you borrow a book from a friend for a long time and do not give it back and treat it as your own, then that will be a crime. ⇒ There must be an intention to permanently deprive. ⇒ However, it may be theft even where the defendant only had conditional intention → if property is taken with the intent to decide at a later stage whether to keep the articles/property, this conditional intention may be acceptable for a charge of theft or attempted theft. But see the case of R v Easom [1971]. EXTENDED MEANING: S6 THEFT ACT 1968 ⇒ Section 6 of the Theft Act 1968 provides an extended meaning to the phrase "intending permanently to deprive". The wording of the section is not that clear, but appears that it will be theft in the following cases:

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Where the defendant throws the victim’s taken items away → without section 6 the defendant could have argued that he did not intend to permanently deprive the victim of his items because he would have been happy if the victim found the stolen items. Where the defendant sells the items back to the victim → again, without section 6, the defendant could have argued that he did not intend to permanently deprive the victim of the items. Where the defendant returns property in an impoverished state it will be theft. This is seen in section 6(1), which states that if the borrowing is "equivalent to an outright taking or disposal" then this amounts to an intention permanently to deprive. For example, if you borrow a football season ticket but don’t return it until the end of the season this will be the same as being permanently taken, and the defendant may be convicted of theft. If the defendant gambles the victim’s property or invests it in a risky investment the defendant will be treated as intending to deprive the victim of it.

5. Dishonestly INTRODUCTION ⇒ The meaning of dishonesty is a mixture of statute and common law. The starting point is section 2 of the Theft Act 1968, which sets out various circumstances in which the defendant will not be dishonest. ⇒ The three circumstances determined in section where the defendant will not be dishonest:   

s2(1)(a): The defendant believed he had a right to deprive the owner of the property. s2(1)(b) The defendant believed that the owner would consent. s2(1)(c) The defendant believed that the owner could not be found. THE COMMON LAW TEST FOR DISHONESTY

⇒ If the defendant is not acquitted on the basis of section 2(1) the jury will go on to consider the common law test for dishonestly, set out in R v Ghosh [1982]. The Ghosh test previously required the jury to consider two separate questions in deciding whether the defendant was dishonest: (1) Was what the defendant did dishonest according to the standards of reasonable and honest people?  (2) Would the defendant realise that reasonable and honest people would regard what he/she did as dishonest? o The second limb has now been overruled by the Supreme Court following Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] ⇒ As there is now only one limb to the Ghosh test, you now need only answer the first question If the answer to the question is ‘yes’ then the defendant is dishonest. If the answer to the question is ‘no’ then the defendant is not dishonest. 

⇒ Note, that even before this change of law, the full test did not need to be used in all cases; only the first question needed to be asked in circumstances where the defendant gives evidence that he or she thought his or her conduct was honest according to the standards of ordinary people. INTRODUCTION ⇒ Section 8 of the Theft Act 1968 defines robbery. In essence robery is made up of two elements: (1) It must be shown that the defendant has committed theft The mens rea and actus reus of theft must be proved. (2) It must be shown that the defendant has used or threatened force at the time of the theft.

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THE SECOND REQUIREMENT: THREAT OR USE OF FORCE ⇒ There are three elements in this second requirement: ⇒ (1) There must be the use of force or treat of force → force is to be given its ordinary meaning by the jury. However, the level of force need be of only a minimal kind. See, for example, R v Dawson [1976]. Facts: One of the defendants nudged a man so as to make it easier for the other defendant to take his wallet from his pocket. The jury convicted both of robbery and they appealed contending that nudging fell short of using force. Held: The convictions were upheld. The word force is to be given its ordinary meaning and requires no direction to the jury. The jury were entitled to find that force had been used.

⇒ (2) The force must be used in order to steal and not for any other purpose → this means that the defendant must be aware that he or she is using force and intends to use that force in order to steal. ⇒ (3) The force must be used at the time of the theft or immediately before it → it is not robbery if the force is used simply in order to make a getaway from a scene of a theft. See, for example, R v Hale (1976). Facts: The two defendants broke into a woman's home. One went upstairs and took some jewellery from her bedroom. After taking the jewellery the two of them tied her up. They were convicted of robbery and appealed on the grounds that the force came after they had appropriated the jewellery and thus did not come within the requirement of being immediately before or at the time of stealing. Held: The convictions were upheld as the appropriation of the jewellery was a continuing act. 

Eveleigh LJ: "To say the conduct is over and done with as soon as he laid hands on the property is contrary to common-sense and to the natural meaning of the words. The act of appropriation

does not cease. It is a continuous act and it is a matter for the jury to decide whether or not the appropriation has finished".

HANDLING STOLEN GOODS INTRODUCTION ⇒ The offence can be broken down into four elements (as seen in section 22 Theft Act 1968 and expanded in section 24(2)):    

(1) It must be shown that the goods have already been stolen. (2) It must be shown that the defendant handled the property. (3) It must be shown that the defendant knew or believed that the goods were stolen. (4) The defendant was dishonest. (1) IT MUST BE SHOWN THAT THE GOODS HAVE ALREADY BEEN STOLEN

⇒ It is not necessary for the prosecution to prove who stole the goods, as long as it is clear the goods have been stolen by someone. ⇒ If the defendant believes the goods to be stolen, but in fact they are not, then the defendant may be guilty of an attempted handling offence. (2) IT MUST BE SHOWN THAT THE DEFENDANT HANDLED THE PROPERTY ⇒ It must be shown that the defendant engaged in or arranged one of the following: 1. 2.

Receiving the property; or Undertaking any of the following: a. retention; b. removal; c. disposal; d. realisation ... of the goods either by another or for another's benefit.

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Assisting in any of the following: a. retention; b. removal; c. disposal; d. realisation ... of the goods either by another or for another's benefit.

⇒ The terms used here are readily understandable and are to be given their normal meanings.

(3) IT MUST BE SHOWN THAT THE DEFENDANT KNEW OR BELIEVED THE GOODS WERE STOLEN ⇒ The test is subjective: it does not matter whether a reasonable person would have known the goods were stolen, what matters is what the defendant knew. ⇒ The words knowledge and belief are to be given their normal meaning. ⇒ Suspicion the goods are stolen is not enough. (4) THE DEFENDANT WAS DISHONEST ⇒ To convict the defendant of handling the jury must be persuaded that the defendant was dishonest. ⇒ The Ghosh test for dishonesty will be used (R v Ghosh [1982]). ⇒ The Ghosh test requires the jury to consider two separate questions in deciding whether or not the defendant was dishonest: 1.

Was what the defendant did dishonest according to the standards of reasonable and honest people? 2. Would the defendant realise that reasonable and honest people would regard what he/she did as dishonest? ⇒ If the answer to both these questions is ‘yes’ then the defendant is dishonest. If the answer to either question is ‘no’ then the defendant is not dishonest. ⇒ However, note, the full test does not need to be used in all cases; only the first question needs to be asked unless the defendant gives evidence that he or she thought his or her conduct was honest according to the standards of ordinary people. ⇒ It will be rare that someone who is handling what he or she knows or believes to be stolen goods will be able to claim successfully that he or she was acting honestly BURGLARY INTRODUCTION ⇒ Section 9 of the Theft Act 1968 defines the offence of burglary. It is important to appreciate there are two different kinds of burglary: 1. Section 9(1)(a): entering a building or part of a building as a trespasser with an intent to commit one of the following in the building: a.

theft;

b. criminal damage; or c. infliction of grievous bodily harm; 2. Section 9(1)(b): having entered a building or part of a building as a trespasser, committing either: a. theft or attempted theft; or b. infliction or attempted infliction of grievous bodily harm. ⇒ The key difference between the two offences is the time at which the crime is committed: 1. 2.

Section 9(1)(a) is committed when the defendant enters the building. Section 9(1)(b) is committed when, once inside the building, the defendant commits one of the listed crimes.

Building or part of a building SUMMARY ⇒ A building must involve a permanent structure. Section 9(4) of the Theft Act 1968 states that an inhabited vehicle is included within the definition of a building. This is designed to cover houseboats and caravans which are permanently inhabited. ⇒ If the defendant enters a building with the consent of the owner, but then enters part of the building which he is not permitted to enter with intent to steal, he or she can be guilty of burglary. 

Entry SUMMARY ⇒ The burglar must 'enter' the building to be guilty of burglary, but this does not mean that the burglar's body must enter the building. ⇒ According to the Court of Appeal in R v Brown [1985] there must be 'effective entry'. In the case, the defendant broke a shop window and stick the top half of his body through it while investigating the inside of the shop. This as an effective entry so the offence was made out.  The Court of Appeal in R v Ryan [1996] rejected an argument that the test should be whether there was a sufficient amount of the defendant's body inside to enable him or her to carry out one of the crimes. ⇒ It is widely accepted that it is possible to commit a burglary by using an object to enter the property, although there is no recent authority on the issue e.g. using a pole to pull out an item from a building. 

Trespass SUMMARY ⇒ The defendant must enter as a trespasser, being aware that he or she is a trespasser. ⇒ If someone enters a piece of land he or she does not own without legal authorisation then prima facie he or she is a trespasser. ⇒ See the case of R v Collins [1973] where the key issues was whether the owner's daughter had invited the defendant into the house before he had entered. If she had he could not be convicted of burglary because he was not a trespasser. Facts: The defendant was charged with burglary. He had climbed a ladder to an open window where a young woman was sleeping naked in her bed. He descended the ladder and stripped down to his socks then climbed up again. The woman awoke and saw him at the window. She thought it was her boyfriend so invited him in. It was not clear, and neither party could recall whether he was inside or outside the window when she invited him in. They proceeded to have sexual intercourse. She then realised it was not her boyfriend and screamed for him to get off. He ran off. The following day he was questioned by the police and charged with burglary under s.9(1)(a) on the grounds that he entered as a trespasser with the intent to commit rape. (He could not be charged with rape as the woman had consented to sexual intercourse). The jury convicted him at first instance. The defendant appealed on the grounds of a misdirection as the jury had not been asked to consider if he was a trespasser at the time of entry. Held: His conviction was quashed (i.e. found not guilty). It was held that there must be an effective and substantial entry with knowledge or being reckless as to be a trespasser. Consent of the home owner (the girl's parents) was not required; it was sufficient that the girl had invited him in.

WITHDRAWAL OF PERMISSION ⇒ If you have permission to enter someone's house, but that permission is later withdrawn and you are asked to leave, you are a trespasser unless you leave with a reasonable length of time. ⇒ However, to be guilty of burglary a person has to enter as a burglar → so if you leave slowly and decided to steal something on the way you there is no burglary (only theft). ACTING IN EXCESS OF PERMISSION ⇒ More diffic...