Property Offences - Cases

Question 1

S. 1 Theft Act 1968

Answer 1

S. 1 - Basic definition of theft:

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief’s own benefit.

Question 2

Appropriation - S. 3 Theft Act 1968

Answer 2

S. 3 - “Appropriates”:

(1) Any assumption by a person of the rights of an owner amounts 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.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

Question 3

Appropriation Cases - List

Answer 3

>S. 3 TA 1968
>Lawrence v Metropolitan Police Commissioner [1972].
>Morris [1984].
>Gomez [1993].
>Hinks [2000].
>Briggs [2003].
>Pitham and Hehl (1977).

Question 4

Appropriation Cases - Lawrence

Answer 4

> Lawrence v Metropolitan Police Commissioner [1972] AC 626:
-Theft can be found even where the victim consented to the appropriation.
-An Italian student, who was unable to speak English, handed her wallet to the taxi driver, D.
-D took out money in excess of the cab fare from the student’s wallet.
-D was convicted under s1 Theft Act 1968.
-D appealed on the basis that student had consented to the taking of excess money.
-HoL held that D was rightly convicted under S1 Theft Act 1968.
Viscount Dilhorne:
-S. 1(1) Theft Act 1968 was not to be construed as though it contained the words “without the consent of the owner” and accordingly it was not necessary for the prosecution to prove that the taking was without his consent.
-Proof of consent to appropriation does not mean that there was no dishonesty.
-Appropriation may occur even though the owner has permitted or consented to the property being taken.

Question 5

Appropriation Cases - Morris

Answer 5

> R v Morris [1984] AC 320:
-Appropriation means the assumption of some rights of the owner, not all rights.
-Appropriation can be a combination of dishonest acts, each of which do not constitute appropriation on their own.
-Ds switched labels of goods in supermarkets, to pay a lesser price for a more expensive good.
-Issue arose as to whether that constitutes dishonest appropriation.
-Ds’ lawyer concedes that there is the assumption of some rights of the owner but assumption of all rights is needed to amount to appropriation.
-HoL dismissed appeal - assumption of some rights of the owner is sufficient to constitute appropriation.
Lord Roskill:
-Appropriation involves ‘an adverse interference with or usurpation’ not expressly or impliedly authorised by the owner. (Later overruled).
-It is enough for the prosecution to prove the assumption of any of the rights of the owner, not all of the rights.
-Appropriation can be evidenced by one act or a combination of acts, the precise moment when the appropriation occurred varying according to the circumstances of the case.
-In the present case, neither the removal from the shelves nor the switching of labels constitute appropriation on their own, rather it is the combination of these acts that constitution appropriation (the order and interval between the acts is unimportant).
-In such cases, to avoid ingenious arguments relating to s1 which impedes the efficient administration of justice, where someone has passed a checkpoint and paid lower amount, only 15(1) offence should be brought forward.
Commentary:
-Lord Roskill’s judgment was contrary to Lawrence on the issue of consent, and was overruled in Gomez.
-In Hinks Lord Steyn stated that Lord Roskill conflated the elements of dishonesty and appropriation contrary to Lawrence.
-Furthermore, the idea that appropriation involves an adverse interference with the owner’s rights does not apply anymore since in Hinks it was held that appropriation can occur even when there has been a valid transfer of property, which would not adverse interference.

Question 6

Appropriation Cases - Gomez

Answer 6

> R v Gomez [1993] AC 442:
-Overruled Morris: an act may be an appropriation notwithstanding that it is done with consent of the owner.
-Gomez (D), the assistant manager of a shop, received two stolen cheques as payment for goods and persuaded his manager to accept by lying.
-D was charged with theft.
-D argued that as the transfer of goods was consented to by manager and there was no appropriation.
1. Was there an appropriation when stolen goods were obtained with the consent of the owner under false representation? Yes.
2. Must such a passing of property necessarily involve adverse interference or usurpation of some right of the owner? No (there was such in Lawrence).
HoL dismissed appeal.
Lord Keith:
-In Morris, Lord Roskill was right that assumption by the defendant of any of the rights of an owner could amount to an appropriation within the meaning of s3(1), but it does not necessarily follow that the act must not be authorised by the owner, Lawrence holds the contrary.
-In Morris, contrary to what Lord Roskill held, the single act of switching the price labels is appropriation, since it usurps the the owner’s sole right to label his goods.
Lord Browne-Wilkinson:
-The court in Morris was wrong to hold that appropriation means an act by way of adverse interference with or usurpation of the rights of the owner – that wrongly introduces into the word ‘appropriation’ the mental state of both the owner and the accused.
-Reasons:
1. In other parts of the statute where consent is relevant, is explicitly stated.
2. The composite phrase – “dishonest appropriation” indicates that the mental element of defendant is limited to dishonesty.
-‘Appropriation’ is an objective description of the act done irrespective of the mental state of either the owner or the accused.
-Lawrence is impossible to reconcile with Morris, which in my view is incorrect.

Question 7

Appropriation Cases - Hinks

Answer 7

> R v Hinks [2001] 2 AC 241 (HL):
-Appropriation can occur even if an indefeasible title is obtained (i.e., the original owner now has no right to the property).
-Karen Hinks (D) got John Dolphin, a man of limited intelligence, to hand her over £60,000.
-There was a valid transfer of title in civil (property) law, meaning that there was a perfect gift and no vitiating factors such as mistake or fraud applied.
-D was convicted of theft nonetheless, she appealed on the ground that ‘appropriation’ in s1 Theft Act excludes valid transfers of title.
-HoL dismissed appeal as meaning of ‘appropriation’ was not so limited.
Lord Steyn (for the majority):
-Tension between civil and criminal law is not a factor that justifies departure from Lawrence and Gomez.
-The mental requirements of theft are an adequate protection against injustice.
-It is wrong to assume that criminal law rather than civil law is defective.
-By adopting a narrower definition of appropriation, the outcome is likely to place beyond the reach of the criminal law dishonest persons who should be found guilty of theft, restrict the scope of the law of theft and complicate the fair and effective prosecution of theft.
-Unreasonable examples listed by the defence would be ‘likely to founder on the basis that the jury will not be persuaded that there was dishonesty in the required sense’.
Lord Hutton (dissenting):
-Where there is a valid gift there cannot be dishonesty, no matter how morally reprehensible it is regarded to be by ordinary people, except in cases where the jury is satisfied that (1) the donor did not have the mental capacity to make a gift and (2) that the donee knew of this incapacity.
Lord Hobhouse (dissenting):
-An essential function of the criminal law is to define the boundary between what conduct is criminal and what merely immoral.
-To treat lawful conduct as criminal merely because it is morally reprehensible would be contrary to principle and open to objection, it would fail to achieve transparent certainty required of criminal law by basic human rights principles.

Question 8

Appropriation Cases - Briggs

Answer 8

> R v Briggs [2003] EWCA Crim 3662:
-Deception causing the victim to transfer property does not amount to appropriation.
-D deceived elderly relatives to pay for their new house to be bought under the names of the D and her father instead of the victims.
-D was convicted under s1 Theft Act 1968 for theft.
1. Was there appropriation?
-CA allowed appeal - conviction quashed.
Silber J:
-Where a victim causes a payment to be made in reliance on deceptive conduct by the defendant, there is no ‘appropriation’ by the defendant.
-Appropriation involves a physical act rather than a more remote action triggering the payment which gives rise to the charge.
-The offence of deception exists to deal with such cases.

Question 9

Appropriation Cases - Pitahm and Hehl

Answer 9

> R v Pitham and Hehl (1997) 65 Cr App R 45:
-Offering something you do not own for sale even without moving it amounts to appropriation.
-M sold furniture belonging to another person to Ds while it was still in the victim’s house.
-Ds assisted with moving the furniture out to a vehicle for transport.
-Ds were charged under S22(1) of Theft Act 1968 for handling stolen goods and convicted.
-Ds appealed on the ground that their handling of the furniture was “in the course of stealing” and, therefore, outside the scope of section 22 (1) of the Theft Act 1968.
-CA dismissed appeal as Ds’ handling was not in the course of stealing since theft/appropriation took place when the offer to sell was made.
Lawton LJ:
-The offer to sell was an assumption of the rights of an owner and the appropriation took point at that point, it did not matter whether the furniture was removed from the property or not.
-Even if the owner was never deprived of the property, M had still appropriated it by assuming the rights of the owner to offer the furniture for sale.

Question 10

Property Cases - list

Answer 10

> S. 4 TA 1968

>Oxford v Moss (1979)

Question 11

Property Cases - s. 4 Theft Act 1968

Answer 11

> S. 4 - “Property”:

(1) “Property” includes money and all other property, real or personal, including things in action and other intangible property.

(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—
(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.
For purposes of this subsection “land” does not include incorporeal hereditaments; “tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and “let” shall be construed accordingly.

(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.
For purposes of this subsection “mushroom” includes any fungus, and “plant” includes any shrub or tree.

(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

Question 12

Property Cases - Oxford v Moss

Answer 12

> Oxford v Moss (1979) 68 Cr App R 183:
-D student copied an examination paper and returned it.
-D was convicted of theft under s1 Theft Act 1968.
CA allowed appeal:
-Conviction for theft was quashed as confidential information cannot be stolen.
-In s4(1) of the 1968 Act, “intangible property” did not include confidential information.
-Protection of confidential information is found in civil law where injunctions can be obtained to prevent revelation.

Question 13

Belonging to Another - list

Answer 13

> S. 5 TA 1968

>Turner [1971]

Question 14

Belonging to Another - S. 5 Theft Act 1968

Answer 14

> S. 5 - “Belonging to another”:

(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).
(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 intention to deprive of the property any person having that right.
(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.
(4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.

Question 15

Belonging to Another - Turner [1971]

Answer 15

> R v Turner [1971] 1 W.L.R. 901:
-Something you legally own can ‘belong’ to another within the meaning of s5(1) Theft Act 1968.
-D took his car to be repaired at V’s garage.
-When the repairs were completed, D took his car away without paying.
-D was convicted of theft under s1 Theft Act 1968.
1. Did the car ‘belong’ to V within the meaning of s5(1)?
CA dismissed appeal:
-The car ‘belonged’ to V under s5(1).
-Property belonged to a person if at the time of the appropriation that person was in fact in possession or control of it.
-The words “possession or control” in s5(1) did not require to be qualified in any way.

Question 16

Dishonesty - list

Answer 16

> S. 2 TA 1968
Ghosh [1982]
Ivey v Genting Casinos [2017]
Barton [2020]

Question 17

Dishonesty - s. 2 Theft Act 1968

Answer 17

> S. 2 - “Dishonestly”:

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

Question 18

Dishonesty - Ghosh

Answer 18

> Ghosh [1982] Q.B. 1053:
-Established the two-limbed test for dishonesty that was later overturned in Ivey.
-D was a surgeon who claimed fee for operations where he should not be paid.
-D was convicted of offences under the Theft Act 1968.
-The judge directed jury to an objective test of whether the conduct would be dishonest to reasonable people.
-CA dismissed appeal as although the judge’s direction was wrong, the conviction was safe.
Lord Lane CJ:
-All matters covered in s2(1) relate to belief of accused and s2(2) relates to his willingness to pay, both are subjective – ‘it is difficult to see how a partially subjective definition can be made to work in harness with the test which in all other respects is wholly objective.’
-Two-part test for dishonesty:
1. Was what was done dishonest according to the ordinary standards of reasonable and honest people? If no, D is not guilty. If yes:
2. Did the defendant realise that reasonable and honest people regard what he did as dishonest? If yes, he is guilty; if no, he is not.

Question 19

Dishonesty - Ivey

Answer 19

> Ivey v Genting Casinos [2017] UKSC 67:
-Removed the subjective second limb of the Ghosh test for dishonesty.
-Although this is a civil case it is persuasive on criminal courts.
-Mr. Ivey used a technique known as edge-sorting to allow him to identify playing cards and increase his chances of winning in the card game ‘Punto Banco’.
-As a result, he won £7.7 million over the course of two days.
-On discovering, Mr. Ivey’s use of edge-sorting, Genting Casinos sued him for breach of an implied term in the contract against cheating. In an appeal to the Supreme Court, Mr. Ivey argued that cheating required dishonesty, which according to the second limb of the dishonesty test laid down in R v Ghosh, he didn’t have given that he had not subjectively considered that edge-sorting was dishonest according to ordinary standards.
-Although, the Court found that dishonesty wasn’t a necessary element of cheating, they still established a new test for dishonesty
SC dismissed appeal:
-D cheated.
-The concept of cheating does not necessarily involve dishonesty (at [45]), but even if it D’s claim would also be denied since the second limb of the Ghosh test is erroneous (at [75]) (in obiter).
Lord Hughes on the meaning of dishonesty:
-Dishonesty “like the elephant, it is characterised more by recognition when encountered than by definition”, other than the limited extent required by s2 Theft Act 1968, judges should not define it: [48].
-Criminal Law Revision Committee stated that “Dishonesty is something which laymen can easily recognise when they see it: [53].
-Ghosh “does not correctly represent the law and that directions based upon it ought no longer to be given”: [74].
Lord Hughes on criticising the Ghosh test at [57]-[59]:
-‘The principal objection to the second leg of the Ghosh test is that the less the defendant’s standards conform to what society in general expects, the less likely he is to be held criminally responsible for his behaviour’.
-‘It was based on the premise that it was necessary in order to give proper effect to the principle that dishonesty, and especially criminal responsibility for it, must depend on the actual state of mind of the defendant, whereas the rule is not necessary to preserve this principle.’
-‘It sets a test which jurors and others often find puzzling and difficult to apply.’
-‘It has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test of the same concept when it arises in the context of a civil action.’
-Criticisms based on inconsistency with pre-Theft Act 1968 law which supported a simple objective test.
Commentary - other effects of this judgment:
1. Conviction for theft is easier as dishonesty more easy to satisfy.
2. Removal of defences based on cultural differences
impacts fraud as it uses the same definition of dishonesty.
3. Removal of an anomaly (subjective view of objective view).

Question 20

Dishonesty - Barton

Answer 20

> CA’s judgment in R v Barton and Booth [2020] EWCA Crim 575 held that the objective test for dishonesty as set out in Ivey is to be used in criminal proceedings in preference to the two-stage dual objective/subjective test set out in Ghosh.

Question 21

Intention to Permanently Deprive - list

Answer 21

> S. 6 TA 1968
Lloyd [1985]
Mitchell [2008]

Question 22

Intention to Permanently Deprive - S. 6 Theft Act 1968

Answer 22

> S. 6 - “With the intention of permanently depriving the other of it”:

(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

Question 23

Intention to Permanently Deprive - Lloyd

Answer 23

> R v Lloyd (1985) QB 829:

• D worked at cinema as chief projectionist.
• He took out movie tapes for hours at a time to other two defendants to be copied and sold.
• D was convicted of theft under s1(1).
• CA allowed the apeal:
• Conviction quashed as there was no intention to permanently deprive.
• Borrowing can amount to the intention to permanently deprive only if the intention was to return it in a changed state where it had lost its goodness, virtue or practical value.
• In this case, there was no such loss as films can still be screened.

Question 24

Intention to Permanently Deprive - Mitchell

Answer 24

> Where a car is taken for use as a getaway vehicle and then abandoned, s 6 of the Theft Act 1968 does not enable the court to impute an intention permanently to deprive the owner of the vehicle.
“Borrowing or lending” an article could only be deemed by s 6(1) to amount to an “intention of permanently depriving” the owner of the article if the intention of the borrower or lender was to return the property to the owner in such a changed state that it had lost all its practical value.
Accordingly, an offence of theft is not made out in such circumstances.

Question 25

Robbery - list

Answer 25

> S. 8 TA 1968
Hale (1979)
Dawson (1977)

Question 26

Robbery - s. 8 Theft Act 1968

Answer 26

> S. 8 - Robbery.

(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
(2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.

Question 27

Robbery - Hale

Answer 27

> R v Hale (1979) 68 Cr App R 415, [1979] Crim. L.R. 596:
-Appropriation does not suddenly cease once one seizes property, it is a continuous act.
-Ds broke into V’s house, covered her mouth to prevent her from screaming, went upstairs to take a jewellery box, then tied her up before leaving the house.
-Ds appealed against their conviction for robbery on basis that under s8(1) Theft Act 1968, the use of force had to be immediately before or during appropriation, which completed once box was seized.
-CA dismissed appeal as they rejected the contention that theft had ceased by the time V was tied up.
Eveleigh LJ:
-‘To say that the conduct is over and done with as soon as he lays hands upon the property, or when he first manifests an intention to deal with it as his, is contrary to common-sense and to the natural meaning of words.’
-‘The act of appropriation does not suddenly cease. It is a continuous act and it is a matter for the jury to decide whether or not the act of appropriation has finished’.

Question 28

Robbery - Dawson

Answer 28

> Dawson (1977) 64 Cr App R 170:
-Mere nudging can constitute force under s8 Theft Act 1968, it is a question of fact for the jury.
-A group of thieves went up to the victim, one nudged the victim to distract him while another took his wallet.
-The thieves were convicted of robbery, they appealed on the basis that ‘force’ under s8 Theft Act 1968 was not used.
-CA dismissed appeal.
Lawton LJ:
-Whether force was used for the purposes of s8 is for the jury to decide, they were entitled to their decision that force was used.

Question 29

Burglary - list

Answer 29

>S. 9 TA 1968
>Collins [1973]
>Jones and Smith [1976]
>Ryan (1996)
>Walkington [1979]

Question 30

Burglary - s. 9 Theft Act 1968

Answer 30

> S. 9 - Burglary:

(1) A person is guilty of burglary if—
(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or
(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding—
(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;
(b) in any other case, ten years.

(4)References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

Question 31

Burglary - Collins

Answer 31

> Collins [1973] QB 100:
-Burglary requires the defendant to know or be reckless as to whether he was entering without permission.
-D was drunk and climbed into V’s house to seek sex.
-V, who was drunk as well, welcomed him as she thought he was her boyfriend.
-V was convicted with burglary with intent to commit rape under s9 Theft Act 1968.
-D appealed on the basis that the jury was not directed to consider whether D entered as a trespasser knowing he had no permission or was reckless as to that fact.
CA allowed appeal:
-‘There cannot be a conviction for entering premises “as a trespasser” within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent.’
The concept of trespass is a civil law concept in tort that did not involve a mental element, this case added a mental element to trespass within the meaning of s9.

Question 32

Burglary - Jones and Smith

Answer 32

> Jones and Smith [1976] 1 WLR 672:
-The AR of trespass can involve doing entry for a purpose in excess of permission and the MR of ‘trespass’ under s9 Theft Act 1968 can be knowledge or recklessness as to exceeding permission.
-D entered father’s house and stole two televisions.
-D was convicted for burglary.
-D appealed that there is no trespassing since he was given general permission to enter house.
-CA dismissed appeal, D had trespassed.
James LJ:
-A person is a trespasser for the purpose of s9 only when he enters premises of another knowing that he is entering in excess of permission given or being reckless whether he is entering in excess of permission, providing that the facts are available for him to consider.
-The jury was satisfied that D knew that he had entered in excess of the permission given to him.

Question 33

Burglary - Ryan

Answer 33

> R v Ryan 1996:
-D was discovered in the early hours of the morning stuck inside the window of an elderly person’s house and had to be removed by the fire brigade.
-He had managed only to get his head and one arm inside the window.
-Convicted with burglary and subsequently appealed against his conviction to the Court of Appeal.
-D appealed under s. 9 of TA he argued he hadn’t been capable of stealing anything from the building because he was firmly stuck in the window and that he had not ‘entered’ a building as he was partially outside it.
Court held it was irrelevant whether anything was stolen or not.
Court applied R v Brown [1985] Crim LR 212 and stated that a person could enter a building if only a part of his body was actually inside the premises. The court agreed with the trial judge’s finding that it was up to a jury to decide whether there was entry or not based on the facts of the case.

Question 34

Burglary - Walkington

Answer 34

> R v Walkington [1979] 1 WLR 1169:
-Entry in excess of implied permission amounts to trespass under s9 Theft Act 1968.
-The defendant is not absolved of burglary even if the thing he intended to steal was not there.
-D entered into an unmanned counter in a department store before it closed, he opened the till which he found to be empty, he sought to leave but was caught before he could.
-D was convicted for burglary under s9 Theft Act 1968.
1. Was D a trespasser under s. 9?
-CA dismissed appeal.
Geoffrey Lane LJ:
-Management had impliedly prohibited customers from entering the counter area and D knew of that prohibition.
-As the jury was satisfied that D was a trespasser and that D intended to steal at the point of entry, the fact that there was nothing to steal was immaterial.

Question 35

Other related offences - list

Answer 35

> S. 12 Theft Act 1968 - TMOC
S. 21 TA 1968 - Blackmail
S. 22 TA 1968 - Handling stolen goods
S. 25 TA 1968 - Going Equipped for Stealing
S. 3 TA 1978 - Making off without payment

Question 36

Other related offences - s. 12 Theft Act 1968

Answer 36

> Taking Motor Vehicle or other Conveyance without authority:

• Subject to subsections (5) and (6) below, a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another’s use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.
• A person guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

Question 37

Other related offences - s. 21 Theft Act 1968

Answer 37

> S. 21 - Blackmail:

(1) A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief—
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.

(2) The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.
(3) A person guilty of blackmail shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years.

Question 38

Other related offences - s. 22 Theft Act 1968

Answer 38

> S. 22 - Handling stolen goods:

(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
(2) A person guilty of handling stolen goods shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years.

Question 39

Other related offences - s. 25 Theft Act 1968

Answer 39

> S. 25 - Going equipped for stealing:

(1) A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft.
(2) A person guilty of an offence under this section shall on conviction on indictment be liable to imprisonment for a term not exceeding three years.
(3) Where a person is charged with an offence under this section, proof that he had with him any article made or adapted for use in committing a burglary or theft shall be evidence that he had it with him for such use.
(5) For purposes of this section an offence under section 12(1) of this Act of taking a conveyance shall be treated as theft.

Question 40

Other related offences - s. 3 Theft Act 1978

Answer 40

> S. 3 - Making off without payment:

(1) Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.
(2) For purposes of this section “payment on the spot” includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided.
(3) Subsection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.

Question 41

Fraud - list/overview

Answer 41

> In 2006 the new Fraud Act was enacted, replacing many of the previous offences contained in the 1968 and 1978 theft acts, such as obtaining property and services by deception.
Ss 1-4 Fraud Act 2006.
Valujevs [2014].
Under the old law = MPC v Charles [1977].

Question 42

Fraud - Ss 1-4 Fraud Act 2006

Answer 42

> S. 1 - Fraud:

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—
(a) section 2 (fraud by false representation),
(b) section 3 (fraud by failing to disclose information), and
(c) section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);
(b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

(4) Subsection (3)(a) applies in relation to Northern Ireland as if the reference to 12 months were a reference to 6 months.

Question 43

Fraud - Valujevs

Answer 43

> R v Valujevs [2014] EWCA Crim 2888:
-S.4 Fraud Act 2006 not restricted to situations involving a breach of fiduciary duty/
-The expectation in s4(1)(a) is an objective test.
-Unlicensed gangmasters (labour suppliers) Ds made unwarranted deductions in their workers’ pay in the form of excessive rent and unwarranted fines and penalties.
-Ds were charged under s4 Fraud Act 2006 for fraud by abuse of position but acquitted on the basis that there was no expectation that Ds safeguard the financial interests of their workers for the purposes of s4(1)(a).
-Prosecution appealed.
-CA allowed appeal & Ds were convicted.
Fulford LJ:
-The regulatory scheme applicable to gangmasters imposes a duty not to withhold payment due to a worker.
-As Ds ‘assumed responsibility for collecting the wages for a worker, or by exercising control over the wages that would be received by a worker at the point they are received’, there was an expectation that Ds will act in the financial interests of their workers and that the workers will receive their pay without unwarranted deductions.
-‘We stress, we have focused on the regulatory scheme that applies to gangmasters and whether or not the approach taken on this appeal will apply in future cases as regards others who, in different roles, take on the responsibility for collecting the wages of a worker, employed or self-employed, is not for this court to determine.’
-The expectation under s4 is an objective one based on the position of the reasonable man.

Question 44

Fraud - under the old law - MPC v Charles

Answer 44

> Metropolitan Police Commissioner v Charles (1977):

• D’s bank account was overdrawn and he had been warned by his bank manager not to write more than one cheque a day for more than £30.
• Despite this, he went to gamble in a casino. He bought chips from the casino using a chequebook backed by a guarantee card issued to him by his bank. The defendant was aware that the amounts that he was drawing for would result in him exceeding his overdraft limit of £100.
• He was charged with obtaining a pecuniary advantage by deception contrary to s16 Theft Act 1968 and convicted.
  1. Whether the person deceived under s16 Theft Act 1968 had to suffer any pecuniary loss caused by the deception.
  2. Whether the pecuniary advantage gained had to be from the deceived party.
• D’s conviction was upheld.
• D had induced, by deception, the casino’s staff through the presentation of the cheque guarantee card into accepting cheques that he knew would not be honoured.
• Whilst the casino did not suffer any loss as a result of the deception, as the bank had implicitly guaranteed the D’s cheques in any event through allowing him use of the card, s16 Theft Act 1968 did not require them to; it only required that the accused, by deception, obtained for himself or another a pecuniary advantage, which D did.
• There was therefore a causal link between the deception in the form of using the cheque guarantee card to induce the casino staff to accept his cheques, and the pecuniary advantage he gained by obtaining chips for cheques which he did not have the credit to obtain, regardless of the fact that the casino did not suffer a loss.

Question 45

Criminal Damage - list

Answer 45

> Ss 1-3 Criminal Damage Act 1971.
Smith [1974]
Denton [1982]
G and R [2003]

Question 46

Criminal Damage - s. 1 Criminal Damage Act 1971

Answer 46

> S. 1 - Destroying or damaging property:

(1) A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another—
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.

(3) An offence committed under this section by destroying or damaging property by fire shall be charged as arson.

Question 47

Criminal Damage - s. 2 Criminal Damage Act 1971

Answer 47

> S. 2 - Threats to destroy or damage property:
A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out,—
(a) to destroy or damage any property belonging to that other or a third person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or third person;
shall be guilty of an offence.

Question 48

Criminal Damage - s. 3 Criminal Damage Act 1971

Answer 48

> S. 3 - Possessing anything with intent to destroy or damage property:
A person who has anything in his custody or under his control intending without lawful excuse to use it or cause or permit another to use it—
(a) to destroy or damage any property belonging to some other person; or
(b) to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person;
shall be guilty of an offence.

Question 49

Criminal Damage - Smith

Answer 49

> R v Smith (David) [1974] QB 354:
-Mistaken belief that damaged property belongs to oneself, even if unreasonable, is a good defence to criminal damage.
-D mistakenly thought that the structural additions he made to his rented apartment were part of his personal property and damaged them while seeking to remove them at the end of his tenancy.
-D was convicted of criminal damage contrary to s1(1) Criminal Damage Act 1971.
-D appealed on the grounds that the judge misdirected the jury to convict on basis that an honest though mistaken belief that the property was his own was not a lawful excuse.
-CA allowed appeal, conviction quashed.
James LJ:
-Applying the ordinary principles of MR, the intention and recklessness and the absence of lawful excuse required to constitute the offence have reference to property belonging to another.
-No offence is committed if a person has honest though mistaken belief that the property is his own.
-Provided that the belief is honestly held it is irrelevant to consider whether or not it is a justifiable belief.

Question 50

Criminal Damage - Denton

Answer 50

> R v Denton [1982] 1 All ER 65:
-Damaging one’s own property with fraudulent intent is not criminal damage, nor is damaging another’s property at their instance to serve their fraudulent intent.
-D was told by his employer T to set fire to T’s business premises as part of an insurance fraud.
-D was convicted of criminal damage and arson under s1(1) and 1(3) Criminal Damage Act 1971.
-The judge thought that T was not entitled to consent to the damage under s5(2)(a) due to his fraudulent intent.
-CA allowed appeal; no offence was committed as D had a lawful excuse.
Lord Lane CJ:
-Had T been charged, he would not have been convicted as damaging one’s own property is not a crime under the 1971 Act.
-The fact that there was some dishonest intent did not render what was not a crime a crime.
-Thus, it would be anomalous for the person actually setting the fire, D, to be convicted.
-It was unnecessary for D to rely on s5 since he had a lawful excuse without it, in that T was lawfully entitled to burn the premises down and D believed it.

Question 51

Criminal Damage - G and R

Answer 51

> R v G and R [2003] UKHL 50:
-The objective test for recklessness (Caldwell recklessness) was rejected in favour of a subjective test.
-Two boys (Ds) set fire to newspapers in the back of a shophouse, and burnt down supermarket and adjoining buildings.
-They were charged under s1 Criminal Damage act 1971 for reckless arson.
-HoL: Ds were not guilty of arson as they had not been reckless; they had been unable to appreciate the risk due to their immaturity.
Lord Bingham:
-Overruling R v Caldwell:
-“The present case shows, more clearly than any other reported case since R v Caldwell, that the model direction formulated by Lord Diplock (see paragraph 18 above) is capable of leading to obvious unfairness.”
-“It is neither moral nor just to convict a defendant (least of all a child) on the strength of what someone else would have apprehended if the defendant himself had no such apprehension.” [33].
-R v Caldwell was a misinterpretation of s1 Criminal Damage Act 1971 that offended principle. [36].
-Applied a subjective test for recklessness:
-“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to—(i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.” [41].