Criminal Law - Property Offences

Question 1

Theft

Answer 1

s1 Theft Act (1968) = “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”

1) Appropriation
= s.3(1) Theft Act = assuming any rights of the owner –> includes where they’ve come by the property and assumes a right to it by keeping / dealing with it as its owner –> D has physically taken object from its owner + assumes some or all of their rights (‘bundle of rights’) (doing stuff only the owner would do, e.g. move it)
- One right is sufficient = R v Morris
– s.3(1) also covers where someone doesn’t steal prop. but assumes the right of the owner buy refusing to return it

• Appropriation can take place with the consent of the victim
  – Lawrence v MPC = Italian student consented to taxi driver taking money from wallet - still approp. cause driver took more than what the fare was
  – R v Gomez = D convinced owner of shop to accept (what owner didn’t know to be) stolen cheques - even tho consented still approp.
• Appropriation can still take place if its a gift
  – R v Hinks = vulnerable man gave £60,000 as a gift - she was taking advantage of him - still approp.

2) Property
= s.4
= “includes money and all other property, real or personal, including things in action and other intangible property”
– Real property = land, buildings (tho s.4(2) says things included in land can’t usually be stolen - e.g. crops, flowers)
– Intangible property = property that doesn’t exist in physical sense (copyrights, patents)
– ‘Thing in action’ = property that doesn’t exist in the physical sense but provides the owner with legally enforceable rights (e.g. a bank account, patents) –> But Oxford v Moss = seeing unopened exam question not ‘property’ but ‘information’
– Electricity separate under act
- Things that can’t be stolen:
– Picking wild flowers or mushrooms unless for reward, sale / commercial purpose
– Human body can’t normally be stolen = R v Kelly and Lindsay = body parts could be as their ‘essential character and value has changed’

3) Belonging to another
= “belonging to any person having possession or control of it, or having in it any propriety right or interest”
– Possession - e.g. a rented suit
– Can be liable for stealing your own property –> R v Turner (No.2) = took his car from garage before paying - garage was ‘in possession’ of car - guilty of stealing
– R v Marshall, Coombes and Eren = day tickets still property of London Underground and although they had been given to the D’s willingly still theft to sell them at a discounted price
– Even in legally obtained, still an obligation to use it a particular way
– Hall = each case depended on its facts
– s.5(4) = property passed to D by mistake to be treated as ‘belonging to’ the original owner and once the D realises it was a mistake and refuses to return it it’s theft – AG’s Reference (No.1 of 1983)

MENS REA

1) Intention to permanently deprive
- Must intend to perm dep, regardless of whether they’re actually perm deprived –> s.6 Theft Act (1986)
– Borrowing temporarily not usually theft (s.6(1))
– But Lloyd ruled it could be theft if borrowed “until the goodness, the virtue, the practical value … has gone out of the article”
– Velmuyl = took cash from employers safe intending to repay it - wasn’t going to put exact (say £10) back, (it would be different notes and coins) - therefore theft

2) Dishonesty
- s.2 doesn’t define dishonesty but gives 3 examples of what’s not dishonest:
a) if he appropriated - belief that he has in law the right to deprive
b) appropriated - belief he would have the other person’s consent
c) belief - person to whom it belongs couldn’t be discovered by taking reasonable steps
– s.2(2) = appropriation of property not dishonest if can pay for it

(Old) Two-stage test = Ghosh
1) Was what was done dishonest according to the ordinary standards of reasonable and honest people? (objective)
2) Did the D realise that what he was doing was dishonest? (subjective)

• Ivey - modified test - didn’t agree with 2nd subjective part of test - saying that in the obiter dicta it would make it too hard to convict anyone of theft (cause OD left uncertain) (+ judicial activism - went beyond parl - ‘in the belief’)
• Confirmed in Barton and Booth the 2 stage test in Ivey was binding

(New) 2 stage test (Ivey):
1) What was the actual stage of D’s knowledge or belief as to the facts?
2) In the context of (1) was D’s conduct dishonest by the standards of ordinary decent people?

Question 2

Evaluation of theft

Answer 2

– Law Commission Report (2002) + Professor Griew’s article ‘Dishonesty’ contain many of the arguments
- Theft defined by act of parl in Theft Act (1968) = judges have to interpret wording - people can get off on a technicality rather than what’s fair

1) Appropriation
- D only needs to assume 1 right of owner not all
– Why Morris was convicted for changing price labels in shops
– Allows shoplifters to be convicted without leaving the shop
– Lawrence, Gomez and Hinks can be convicted of theft even though the victims consented to the appropriation
– Hinks = convicted even tho it was a gift
- Unfair that an innocent buyer might have to return property to the rightful owner when he brought property in good faith and had n idea it was stolen
- Appropriation occurring at ‘one point in time’ has created inconsistency + confusion in the law - in Atakpu this led to a silly decision - why can’t the definition be the same as robbery (Hale, Lockley) where theft doesn’t occur at a particular point, but is a continuing act?

2) Property
– Some exceptions included in Theft Act (1968) = land + confidential info.
- Word ‘property’ not really caused many problems
- Not stealing plants if for your house. but is if you’re gonna sell them
– Student not guilty of theft of contents in exam paper –> Oxford v Moss
– Courts also ignored civil law that stated body parts not property - R v Kelly and Lindsay - rule ignored to secure a conviction

3) Belonging to another
- R v Dyke and Munro - released due to technicality of whom money belonged to
– People capable of stealing their own property - R v Turner (No.2) - eval?
- s.5(4) = property obtained by mistake is theft if there’s a legal obligation to return it = Attorney-General’s Reference No.1
- R v Gilks = D not required to pay back money he was given by mistake - gambling contracts not enforceable

4) Dishonesty
- Dishonesty left to jurors
- Second subjective part of test could confuse jurors
- Prior to the theft act, theft was a common law offence partially codified in the Larcency Act (1916) = offence to “steal…without the consent of the owner…fraudulently” - only case to discuss meaning of fraudulently = Williams = intentionally and deliberately
- Phrase ‘fraudulently and without claim of right’ was replaced with ‘dishonestly’ by the Criminal Law Revision Act Committee (because they thought it’d be easier to understand)
- But it’s caused problems
- Since 1980s, test for dishonesty came up in case of R v Ghosh (2 stage test)
- Problematic - as long as proved they didn’t realise it was dishonest not guilty
- 2002 Law Commission = ‘there’s some evidence people’s moral standards are surprisingly varied’
- Argued test should be codified in statute to make more transparent
- Critics argued if they defined dishonest those problems would’ve been avoided
- Test in Barton and Booth criticised for being a circular test (explain) - assumes moral consistency among jurors - also D risks being convicted of a crime for behaviour they didn’t know in advance to be dishonest - breach Article 7?

5) Intention to permanently deprive
– R v Velumyl = convicted on technicality (court had to use imagination to say he wouldn’t put exact money back even tho same amount)
– R v Lloyd and Others = acquitted on a technicality - escaped charges for theft because courts doesn’t think the films he copied had been reduced in value
- Is it necessary to say permanently deprive?
- Conditional intention to deprive - D examines prop. to see if it’s worth stealing then returns it if it’s not theft (Easom) - permanently should be replaced to temporary - bring in line with burglary
- AG’s Ref resolved the issue and indicates where nothing’s been taken it’s attempted theft - but also unfair if they haven’t stolen anything

6) Conclusion - other
- Complexity + ambiguity - language and structure of the act are complex
- Outdated definitions- ‘dishonestly’ and ‘appropriate’
- Inadequate penalties
- Failure to address different types of theft = security theft, online fraud
- Ineffectiveness in preventing theft
- Inconsistency with other legislation
- Limited scope
- Need for clarity

Reform
- Needs reform to reduce judgments that lack ‘common sense’
- Tamblyn, N in Criminal Law Review article ‘Reforming Theft: Taking without consent (2020)’ = propose a new offence of theft based on intentionally or recklessly taking or keeping another’s property knowing or recklessly without conent.
- Would base whole law on consent - “serious, intentional or reckless interference with another’s property without consent”
- Professor Tamblyn = “the law regarding theft needs reform because it is producing strange results. Partly the problems stem from the fact that the current definition of theft involves an “appropriation” of property, which can be as trivial as merely touching property
- In crim law under New Zealand under the Crimes Act (1961) theft is where D takes dishonestly = acting without a belief that there was express / implied consent or authority to the taking
- Replace ‘permanently’ with ‘temporarily’
- Smith and Hogan raised concerns about the act
- CoA has called for reform of the act - Hallam and Blackburn
- But it’s been around for a long time - 50 years

Question 3

Robbery

Answer 3

Section 8(1) Theft Act (1968)
- “A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to to do, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force”
Actus reus:
- AR of theft
- Uses force / threat of force in order to steal
- Immediately before or at the same time as stealing
- On any person

Mens Rea:
- MR tjeft
- Intention to use force in order to thieve

ACTUS REUS:
1) ALL elements of theft - appropriates property belonging to another – R v Robinson
- Must be a completed theft = R v Waters

2) Force / threat of force
- e.g. shoving, waving a knife, punching etc.
- Force must be used in order to steal AND be immediately before or at the time of the theft –> conf. Corcoran v Anderton (theft hadn’t been carried out, so it was attempted robbery)

3) Force (or threat of) in order to steal
- Whether there’s sufficient force to steal is up to the jury
- Small amount of force sufficient - Dawson and James
- Confirmed in Clouden
- Force can be applied indirectly –> R v Clouden = D had wrenched a shopping bag from V’s hand - was sufficient
- However, it may not be considered to be ‘force’ as required of robbery –> P v DPP = snatch a cigarette - not sufficient
- Fear of force sufficient
- MUST be to steal tho - rape example!
- Even if threat isn’t ‘real’, the threat is sufficient

4) Forced used immediately before or at the time of theft
- How immediate is immediate is debated in courts
- Confirmed in Hale if the theft is still continuing when force is used it can be a robbery
- This approach was followed in Lockley

5) On any person
- Theft doesn’t have to happen from the person actually being threatened
– P v DPP - snatched a cigarette - no direct contact between D and V - didn’t happen on any person - not guilty

MENS REA
= MR of theft (dishonestly, intention to permanently deprive) + intention (or recklessness) to use force to steal
– R v Robinson = V owed D money - used a knife to get £5 of £7 he was owed - thought he had a right to it in law - quashed

Question 4

Evaluation of Robbery

Answer 4

• Only 3% robberies end up with a conviction

1) Degree of force required
- Very slight / not any force - only threat of
- Differences are max 7 years imprisonment - life
– R v Clouden, R v Dawson and James, Bentham (no force)

2) No distinction between different types of robbery
– Andrew Ashworth = suggests 2 types of robbery - lesser charge (force slight - mag) and more serious charge (crown) - save time + money

3) Increase in robberies
– Lord Woolf = prison sentences for offences
- But most D’s under 18 get community sentence

Also eval. of theft:

– Law Commission Report (2002) + Professor Griew’s article ‘Dishonesty’ contain many of the arguments
- Theft defined by act of parl in Theft Act (1968) = judges have to interpret wording - people can get off on a technicality rather than what’s fair

1) Appropriation
- D only needs to assume 1 right of owner not all
– Why Morris was convicted for changing price labels in shops
– Allows shoplifters to be convicted without leaving the shop
– Lawrence, Gomez and Hinks can be convicted of theft even though the victims consented to the appropriation
– Hinks = convicted even tho it was a gift

2) Property
– Some exceptions included in Theft Act (1968) = land + confidential info.
– Student not guilty of theft of contents in exam paper –> Oxford v Moss
– Courts also ignored civil law that stated body parts not property - R v Kelly and Lindsay - rule ignored to secure a conviction

3) Belonging to another
- R v Dyke and Munro - released due to technicality of whom money belonged to
– People capable of stealing their own property - R v Turner (No.2) - eval?
- s.5(4) = property obtained by mistake is theft if there’s a legal obligation to return it = Attorney-General’s Reference No.1
- R v Gilks = D not required to pay back money he was given by mistake

4) Dishonesty
- Dishonesty left to jurors
- Second subjective part of test could confuse jurors

5) Intention to permanently deprive
– R v Velumyl = convicted on technicality (court had to use imagination to say he wouldn’t put exact money back even tho same amount)
– R v Lloyd and Others = escaped charges for theft because courts doesn’t think the films he copied had been reduced in value

Question 5

Burglary

Answer 5

• s.9 Theft Act (1968)
• 2 different ways:
  1) s.9(1)(a) = if he enters any building / part of a building as a trespasser with intent to steal, inflict GBH or do unlawful damage to the building or anything in it
  2) s.9(1)(b) = having entered a building / part of a building as a trespasser steals / attempts to steal anything in the building or inflicts / attempts to inflict GBH on any person in the building
  (people also add same but ‘dwelling’ instead of ‘building)

Actus Reus:
- Entry
- Into a building / part of a building
- As a trespasser

Mens Rea:
- Intention to steal, cause GBH or do unlawful damage (s.9(1)(a)- unlawful dam.)
- D must know, or be subjective reckless as to whether he is trespassing
- MR for theft / GBH

AR:
1) Entry
Entry not defined in the act
– Collins = “an effective and substantial entry” (ladder-sex-windowsill)
– Brown = “effective entry” (standing outside but leaning inside a window)
– Ryan = D trapped trying to get into a house window - didn’t have to be effective to steal, but effective to get into prop.

2) Building / part of a building
- Includes caravans and boats
- Doesn’t define building
– B and S v Leathley = trailer-sleepers-building
– Norfolk Constabulary v Seekings and Gould = lorry trailer with wheels-not a building
– Walkington = D went into counter area of a shop and opened till - convicted of burglary (s.9(1)(a) as he entered part of building as trespasser

3) ‘As a trespasser’
- If permission to enter, not a trespasser
- Must prove D knew he was trespassing / subjective reckless as to whether he was trespassing
– Collins = ladder,sex,windowsill
- Where D is given permission to enter, but goes beyond that permission, may be considered a trespasser – Smith and Jones = took 2 TVs from father, father said he had a general permission to enter, court ruled it burglary
- If D gets in through fraud (pretending to be a gas meter reader) = trespasser

Mens rea:
1) Entering as a trespasser
2) Ulterior offence
- Both sections - D must know / subjective reckless as to whether he’s trespassing
- D must have intention to commit 1/3 offences at time of entering the building
- Conditional intent = D enters, intending to steal anything he can find which is worth taking
- Even if nothing worth taking, he doesn’t steal anything still guilty (s.9(1)(a)
- s.9(1)(b) - must have MR for theft / GBH when committing (or attempting to commit) the AR

Worse for dwellings
– Flack = CoA refused to give guidance on what a dwelling is, said it was question of fact for jury
– Stickler = ‘justification for treating differently is it’s someone’s home, occupied with personal and sentimental property within it’
– Hudson v CPS = D burgled house uninhabited but ready for new tenants - dwelling doesn’t cease to be a dwelling when there’s no one in it
- More habitable a building is, more likely it’ll be deemed a dwelling for s.9(3)
– Stephen Green = ‘offence involves primary wrong of theft, GBH etc. in addition to a secondary wrong, consisting of the violation of the victim’s sense of security’

Question 6

Evaluation of Burglary

Answer 6

1) Entry
- Definition of word ‘enters’ has widened to make it easier to convict
– Collins = ‘substantial and effective’
– Brown = ‘effective’ (steal without make complete entry)
– Ryan = entry didn’t have to be effective to carry out the ulterior offence - only need to be effective to get into the building / part of the building
- Makes it easier to prosecute
- But maybe it should be a bit harder, since it can result in imprisonment up to 14 years

2) Trespasser
- Definition of ‘trespasser’ caused lots of legal discussion
- Collins - issue was whether he entered as a trespasser (whether he was outside windowsill when he got invited in or inside) - such a small point to decide if he was guilty or not
- Collins also tried to interpret the word ‘trespass’ itself - trespass has been an element of civil law requiring intentional, reckless or negligent entry into a building without the consent of the occupier (Archbold)
- But it’s seen as inappropriate to use civil definitions in criminal law
- Professor Griew = D must intend or at least see a risk they’re a trespasser - which makes the definition subjective

3) Ulterior Offences
- Confusing that burglary can be committed when D doesn’t steal / attempted to steal
- s.9(1)(a) = require D to only intend to commit theft, criminal damage or GBH
- Doesn’t seem correct someone who intends to beat some up and cause BGH can be charged with burglary when the common perception is it’s entering to steal
- Ulterior offences - modernised - before Sexual Offences Act (2003) rape was included in Theft Act (seen in Collins)

4) Building
- Theft Act (1968) doesn’t define ‘building’
- Building includes caravans + houseboats
- Judges use common law definition from Steven v Gourley –> defined building = ‘a structure of considerable size and intended to be permanent of at least endure for a considerable time’
– B and S v Leathley + Norfolk Constabulary v Seeking and Gould = whether trailers that were being used as storage containers were a building
– Norfolk Constabulary v Seeking and Gould = container that had wheels not a building
– B and S v Leathley = container that had wheels removed was a building
- Examples of how technical the law on burglary is