Crime Subject 12: Theft & Related Offences · Crime Subject 12: Theft & Related Offences A ... On...

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OSPRE Part 1 Crime Textbook 1

Crime

Subject 12: Theft & Related Offences

A – Theft

Section 1 Theft Act 1968

Either Way Offence

Penalty In The Crown Court - 7 Years Imprisonment

Penalty In The Magistrates Court - 6 Months Imprisonment And / Or A Fine

Mens rea - element 1

Dishonest.

Actus reus - element 1

Appropriation.


Property.


Belonging to another.

Mens rea – element 2

Intention to permanently deprive the other of the

property.

1 – Dishonesty

What is Not Dishonest? – Section 2 Theft Act 1968

A person will not be regarded as dishonest if they believed that either:

Situation 1 Situation 2 Situation 3

They had a right in law to the property.

If the owner knew of:

The appropriation; and

Its circumstances – i.e. why it was taken;

....they would have consented.

The owner cannot be discovered by taking reasonable steps.

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Situation 1 - Example Situation 2 - Example Situation 3 - Example

If an individual attended one of our courses without paying for the course fee, it would not be dishonest to take their mobile phone – as I

believed I had a right in law

to appropriate the phone in lieu of the course fee.

If I needed money to purchase a pint of milk and I took money from my spouse’s purse to pay for the goods without her knowledge - I would not be behaving

dishonestly as I believed

that she would have consented had she been aware of what I was doing. NB – It is not necessary for the owner to actually provide their consent after finding out about the appropriation.

If I find a pound coin on the floor in a crowd of 70,000 at the FA cup final – I would not be behaving dishonestly if I kept it having formed the

belief that it would not be

reasonable to attempt to trace the owner in such a large crowd for such a small sum. NB – It is not necessary for the person who found the coin to have exhausted all reasonable steps to find the owner.

Learning Point

Focus upon the belief of the accused at the time of acting – i.e. what was going through their head.

It does not matter if the belief is mistaken – provided the belief was honestly held.

The Principles Of R v Ghosh

If the criteria of section 2 does not assist in determining dishonesty - the judge will

apply the 2 stage test derived from the case of R v Ghosh [1982] QB 1053:

Step 1

Whether a reasonable and honest person would have viewed the act as dishonest.

If the jury decide no – the jury must acquit. If the jury decide yes – the jury will proceed to step 2.

Step 2

Whether the defendant realised by the standards of a reasonable and honest person that what they were doing was dishonest.

If the jury decide no – the test would fail at the second hurdle and the jury must acquit. If the answer is yes - then the defendant will have behaved dishonestly.



The objective nature of the first step of the test prevents defendants with a skewed

moral compass from claiming a lack of dishonesty based upon their perception of what amounts to a dishonest act.

Willingness To Pay – Section 2(2) Theft Act 1968

It is possible for behaviour to be deemed to be dishonest despite a willingness to

pay.

For example: A person who takes a newspaper delivered to your doorstep and leaves money to cover the cost of the paper or their contact details will still be deemed to be dishonest.

2 – Appropriation

Definition Of Appropriation – Section 3 Theft Act 1968

An appropriation is an assumption by the person of the rights of the owner – i.e. treating the property as their own.

The Timing Of The Appropriation

In a straightforward theft situation the accused will have the necessary mens rea to

steal at the point of the appropriation.

However, it is not necessary for this to be the case - an appropriation can also take place where the accused initially appropriates the property innocently – (lacking mens rea at this point); but subsequently decides to keep the property and deal with it as their own – (mens rea formed at this point).

Duration Of The Appropriation

An appropriation can be for a very short period of time.

For example - a thief who takes a purse out of a handbag, is almost immediately

disturbed, drops the purse and runs off will be deemed to have appropriated the purse.

Appropriation And Consent

It is possible for an appropriation to take place even when the victim consents to

the appropriation.



In the case of R v Lawrence [1982] AC 510 - a tourist who had a wallet full of unfamiliar cash, offered his wallet to the taxi driver to remove the correct fare. The driver took more than the fare. He was convicted of theft even though he had the owner’s consent to remove the cash.

In the case of R v Gomez [1993] AC 442 - Gomez worked in a shop in London and

was asked by a friend to accept two stolen building society cheques in exchange for expensive electrical goods. Knowing the cheques were stolen, Gomez asked the manager to authorise the sale assuring him the cheques were as good as cash. As a result, the manager consented to release the goods to Gomez’s friend. Some time later, the cheques bounced and were returned by the bank without being paid.

Gomez’s counsel argued that the manager had consented to the appropriation and therefore there was no case to answer. The House of Lords upheld the conviction on the basis that it was possible to ‘appropriate’ property despite the presence of consent.

Appropriation Exception – Section 3 Theft Act 1968

An appropriation will not take place where:

Step 1 Step 2 Step 3

There has been a purchase for value.

The person was acting in good faith.

The person assumes the rights of the owner.

An Example Of Acting In Good Faith

Acting In Good Faith

Not Acting In Good Faith

If a person gets a good deal at a legitimate car auction and purchases a vehicle worth £5000 for £4000 they will be able to rely upon the defence as they have: Purchased the vehicle for value; Whilst acting in good faith; and Have assumed the rights of the owner

by taking the registration documents and driving away.

A person buying a car worth £5000 from a stranger in a pub for £200 will not be able to rely upon the appropriation exception as they have: Purchased the vehicle for value; Have assumed the rights of the owner

by taking the vehicle;

But they have not acted in good faith.



3 – Property - Section 4 Theft Act 1968

Property includes:

Money.

All other property including:

Real – (land and things forming part of the land); Buildings; Personal – (moveable things that can be owned e.g.

CD, TV, cars etc); ‘Things in action’ (capable of being enforced in a legal

action – e.g. patents, trademarks, copyrights); and ‘Other intangible property’ – (e.g. gas).

Items that cannot be physically

stolen.

e.g. trade secrets.

Exam Trip Up - Examinations

The Paper The Examination Is

Written On

The Actual Information Contained In

The Examination

The actual paper that an examination is written upon is property and can be stolen by appropriating the physical script itself.

The information contained within the examination paper itself (i.e. the questions posed) is not property.

Therefore simply seeing the script and either memorising or photographing its contents will not amount to an appropriation of property - Oxford v Moss [1978] 68 Cr App R 183.

Exam Trip Up – Cheques

The actual paper a cheque is written upon is property and can be stolen.



Exam Trip Up – Contents Of Bank Accounts

The case of R v Kohn [1979] 69 Cr App R 395 established that contents of a bank account will be property and can be stolen provided the account is either:

Option 1 Option 2

In credit.

Within the limit of an approved overdraft facility.

Exam Trip Up

Watch out for questions involving the appropriation of funds which have exceeded an approved overdraft limit from a bank account – no theft.

Exam Trip Up – Personal Data

Confidential personal data is not property and cannot be stolen.

Can Land Be Stolen? - Section 4(2)(a) - (c) Theft Act 1968

The General Rule

As a general rule land cannot be stolen.

Exceptions To The General Rule

There are 3 exceptional circumstances where land can be stolen:

Trustees / PRs

Possession

Tennant

Trustees or Personal Representatives can steal land by dealing with it in breach of a confidence. For example: An executor of an estate selling land for their own benefit.

A person not in possession of the land can steal by severing it. For example: A enters B’s land and removes a stone statue fixed to the land.

A tenant in possession can steal fixtures and structures. For example: A tenant removing a fireplace fixed to the wall from premises that they rent.



Can Things Growing Wild Be Stolen? - Section 4(3) Theft Act 1968

The General Rule

It is not an offence of theft to pick any:

Mushrooms

Flowers

Fruits

Foliage

...growing wild on any land.

The Exception To The General Rule

It will be an offence if the mushrooms, fruit, flowers, or foliage growing wild are picked for either:

Sale.

Reward.

Other commercial purpose.

Exam Trip Up – “Any” Land

It is permissible to pick things growing wild on any land.

Watch out for questions involving the picking of things growing wild in a persons

back garden. The fact that the things growing wild are picked from private land is a red herring and it is permissible to pick such wild items provided they are not picked for either sale, reward, or other commercial purpose.

For example:

You walk down the road and strike up a conversation with a man standing in his garden and he tells you that the daffodils in his garden grow wild each year. You would not commit the offence of theft if you picked those daffodils, as they were growing wild on any land.

If the facts were the same, but this time the man tells you that he planted the

daffodils last year, then as the daffodils were cultivated and not growing wild, you would commit an offence if you picked them.

Exam Trip Up – Destruction Of The Whole Plant

It is permissible to pick wild mushrooms, flowers, fruit and foliage growing wild on

any land - such as blackberries from a bush.

It is not permissible to dig up the whole bush and take it away.



Exam Trip Up – Sale Reward Or Other Commercial Purpose

It is permissible for a person to pick wild mushrooms, flowers, fruit, or foliage for

their own use.

It is not permissible to pick wild mushrooms, flowers, fruit, or foliage for either:

Sale;

Reward; or

Other commercial purpose.

Exam Trip Up – Focus On The Point At Which The Intention Was Formed

Watch out for questions where:

There was no intention to sell etc at the time of picking the wild

mushrooms, flowers, fruit, or foliage; and

The intention to sell etc was only formed at some later point after the wild mushrooms, flowers, fruit, or foliage was picked.

For example:

Mrs Smith, the farmer’s wife went picking wild blackberries to make some pies for her

family. Having baked the pies she fed some to her family. She received such praise that she subsequently decided to sell the leftover pies at a farmers market the next day.

In such circumstances Mrs Smith will not have committed the offence of theft as she lacked the intention to utilise the blackberries for commercial reward at the time of picking. That intention was only formed subsequently.

Can Wild Creatures Be Stolen? – Section 4 Theft Act 1968

The General Rule

It will not be possible to steal a wild animal.



The Exception To The General Rule

A wild animal can be stolen when it has been:


Tamed

For example: Seigfreid and

Roy’s pet tigers.

Ordinarily kept in captivity

For example:

The lions at Longleat safari

park.

Either:

Reduced into possession; or

Is in the course of being reduced into

possession;

& Possession has not been either:

Lost; or

Abandoned.

Reducing An Animal Into Possession

In The Course Of Reducing An

Animal Into Possession

If a fisherman catches a fish and leaves it by his side in readiness to take it home to eat - they have reduced the fish into their possession and become the owner of the fish.

It is therefore possible for the fish to be stolen from them.

A fisherman reeling in a fish will be in the course of reducing the fish into their possession.

If somebody cut the line and took the fish then the fish would be stolen from them.

Exam Trip Up – Reduced Animals Reverting To Their Wild State

If a fisherman having reduced a fish into their possession either:

Action 1 Action 2

Leaves and forgets to take the fish

Throws the fish away to feed the birds

...the fish reverts to its wild state - and if any person subsequently saw the fish and took it home to eat (reducing the fish into their possession) they would not have stolen the fish.



Are Corpses Property?

General Rule

A corpse is not property – (Doodeward v Spence [1908] 6 CLR 406).

Exception To The General Rule

The case of R v Kelly [1999] QB 621 established that a corpse will become property

if it has been changed in some way by either:

Change 1 Change 2 Change 3

Amputation

Dissection

Preservation

4 – Property Belonging To Another

Defining “Belonging To Another” – Section 5 Theft Act 1968

Property belongs to the person who either has:


A proprietary interest in it.

Possession of it.

Control of it.

For example - a PC being repaired in a computer repair shop can have three

owners:

Owner Of The PC

Technician

Manager Of The Shop

Has a proprietary interest in

it.

Has possession of it.

Has control of it.

In such circumstances it would be possible for the owner to actually steal their own PC if

they sneaked into the store and took the PC – R v Turner No 2 [1971] 1 WLR 901.

Exam Trip Up – The Duration Of Possession Or Control

The case of R v Kelly [1998] 3 All RE 741 established that possession or control need not be permanent – it can be for only a defined period.



For example – in relation to the table above, the manager and technician will not have permanent possession or control of the PC. The property will only “belong to them” for the duration that it is necessary to repair the PC.

Exam Trip Up – It Is Not Necessary To Prove Who Exactly Owns The

Property

The case of R v Rostron; R v Collinson [2003] EWCA Crim 2206 established that:

It is only necessary to prove that the property belonged to somebody other

than the accused; and

It is not necessary to identify the specific individual to whom the property belonged.

5 - An Intention To Permanently Deprive – Section 6 Theft Act 1968

There are 3 circumstances which may amount to a person having an intention to

permanently deprive:

Treating The Property

As Their Own

Regardless Of The

Owners Rights

Borrowing Beyond The

Scope Of The Agreed

Terms

Parting With Property

Under A Condition For

Its Return

For example: A borrows a fridge from

B; and

A secures the fridge into their new intergraded kitchen.

For example: A lends B their season

ticket specifically to watch the first league game of the season.

B does not return the

season ticket and instead uses the ticket to watch all of the remaining games that season.

In the circumstances B will have exceeded the scope of the lending and their actions will have amounted to an outright taking.

For example: A borrows (condition

being the return of the item) B’s lawnmower (another’s property) for a week; and

Pawns the lawnmower

(parts with the property);

The theft is complete at the time of parting, even if A intended to return the lawnmower. This is due to the fact that they may not be able to perform the condition of return of the item borrowed.



Receiving Property By Mistake – Section 5(4) Theft Act 1968

Where a person receives property by mistake they are obliged to restore it to the person who made the mistake - failure to do so will form an intention to permanently deprive the other of that property. For example:

Having too much change given to you in a shop; or

An employee being paid for overtime that they did not work – AG’s Reference

(No1 of 1983) [1985] QB 182.

Exam Trip Up – Changes Of Heart

Watch out for questions where at the time of the appropriation the accused had the intention to permanently deprive another of their property but later has a change of heart and returns the goods - the accused will still be guilty of theft in such circumstances – R v McHugh [1993] 97 Cr App R 335.



B – Burglary

Violence Used In A Dwelling –

Indictable Only Offence

Penalty In The Crown Court – 14

Years Imprisonment

Other Offences - Either Way Offence

Penalty In The Crown Court – 10

Years Imprisonment

Penalty In The Magistrates Court – 6

Months Imprisonment And / Or A

Fine

2 Offences

Burglary

Section 9(i)(a)

Theft Act 1968

Burglary

Section 9(i)(b)

Theft Act 1968

A person enters a:

Building; or

Part of a building.

Having entered a:

Building; or

Part of a building;

As a trespasser.

As a trespasser.

With the intent (offence is complete at this point) to either:

Steal;

Do GBH;

Do unlawful damage to either:

The building; or

Anything in the building.

A person either:

Steals or attempts to do so - (result); or

Commits GBH or attempts to do so -

(result).

NB – no reference to unlawful damage.

Exam Trip Up

Rape is no longer included in the definition of the offence.

Exam Trip Up

Entering a building to TWOC a vehicle will not amount to an offence of burglary.



Exam Trip Up

Entering a building to steal electricity will not amount to an offence of burglary.

Entering a building to steal gas will amount to an offence of burglary.

1 - Enters

Put simply – this means that the accused has crossed a boundary.

Defining A Boundary

The boundary that is crossed can be either:

Boundary 1

The threshold between perimeter and inside of a building.

e.g. Entry into a building from outside via a door or a window.

Boundary 2

The threshold between separate rooms inside of a building.

e.g. Passing via a door from a hallway into a lounge area.

Boundary 3

The threshold between a cordoned-off area to which access is prohibited and an area to which access is allowed within the same room.

e.g. Stepping behind the serving counter in the barroom of a pub or a corner shop; or stepping behind a rope cordon in the viewing area of a public gallery – R v Walkington [1979] 2 All ER 716.

The Extent Of The Entry Required To Cross A Boundary

A person will be deemed to have entered by crossing a boundary if their entry is effective – R v Brown [1985] Crim LR 212.

This is a question of fact to be determined by the jury.

Exam Trip Up

It is not necessary for the whole body to have entered.

Think of the classic “smash & grab” burglary whereby goods are stolen from a

jewellers simply by breaking a window with a brick and reaching in with a hand alone whilst the rest of the body remains in the street.

Clearly the act of crossing the boundary by simply reaching in through the window from outside the building with a hand alone will be an effective entry.



Exam Trip Up – The Extent Of The Entry & Section 9(1)(a) Burglary

For the offence under section 9(1)(a):

It is not necessary to establish that the extent of entry was adequate enough to enable the intended act of either stealing / committing GBH / causing damage to take place.

It is only necessary to establish that the time of entry (i.e. when the boundary was crossed), the accused was trespassing and they had in their mind at the point of crossing the boundary the intention to either steal / commit GBH / cause damage.

Exam Trip Up – Insertion Of Non Body Parts Into The Building

The insertion of an instrument alone:

To gain entry (e.g. to unhinge a lock) - will not be an entry.

To enable stealing, GBH or damage to be committed - will be an entry.

2 - Building

A building must have a degree of permanence – Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167.

Exam Trip Up

Watch out for questions involving portakabins. Whilst they are ultimately portable in nature their function and degree of permanence as a work site make them a building – B & S v Leatherley [1979] Crim LR 314.

Dwellings As Buildings

A dwelling is a building.

Exam Trip Up

An uninhabited shell of an unfinished house is a building and can be burgled.

Exam Trip Up – Tents & Marquees Are Not Buildings

Due to their lack of permanence – tents and marquees are not buildings.

Even if a tent is lived in - i.e. is used as a dwelling (e.g. a tepee) – it is still not a building.



Watch out for questions involving thefts, GBH, or damage in:

A tent at the Glastonbury festival – no burglary;

A marquee at a wedding – no burglary.

Inhabited Vehicles Or Vessels As Buildings

A building will also include either:

A vehicle (e.g. campervan)

A vessel (e.g. houseboat).

...that is inhabited.

Exam Trip Up

The fact that the vehicle or vessel was designed for inhabitation is insufficient in itself. It is necessary to go on to establish that somebody actually lived in it.

Exam Trip Up

It is not necessary for the occupier to be actually in the vehicle or vessel at the

time of the burglary.

3 - As A Trespasser?

A person will be deemed to be trespassing when they either:

Know

Are subjectively reckless – i.e. foresaw the possibility

...that they have crossed a boundary without either:

Consent to do so.

The right by law to do so.



Exam Trip Up

Watch for the question where a boy pushes his friend into someone’s house as a prank and whilst inside the second boy sees and picks up a £10 note. He would not commit burglary as he did not enter as a trespasser.

Entering With Consent

General Rule

If a person enters a building with consent – they will not be a trespasser.

Exception To The General Rule - Exceeding The Scope Of The Consent To

Enter

If A consented to B entering their building as a guest for a specific purpose (e.g.

fix their boiler); and

At the point of entry B had no intention of entering for the specified purpose;

As at the point of entry B instead had the intention of either stealing / commiting GBH / causing damage;

B will have entered the building as a trespasser – as the initial consent to entry only related to the specified purpose and not their intended prohibited acts.

Checklist – Burglary Section 9(1)(a)

Step 1

Has the accused made an effective entry – i.e. have they crossed a boundary?

If no – no offence. If yes – proceed to step 2.

Step 2

At the time of crossing the boundary was the accused a trespasser?


Step 3

At the time of crossing the boundary as a trespasser did the accused intend to either:

Steal;

Do GBH;

Do unlawful damage to either:

The building; or

Anything in the building.

If no – no offence. If yes – the offence of section 9(1)(a) burglary has been committed.



Learning Point

For an offence to be committed under section 9(1)(a) - the person must at the time

of crossing the boundary as a trespasser have a specific agenda – i.e. the intention to either steal / cause GBH / do unlawful damage.

Exam Trip Up

Watch out for questions where the accused only formed the intent to steal / cause

GBH / do unlawful damage after they crossed the boundary. - no offence under section 9(1)(a) will be committed in such circumstances.

They would only commit the offence under section 9(1)(a) if having formed the intention to cause one of the prohibited consequences in one part of the building, they proceeded to cross a boundary into another part of the building as a trespasser.

Changes Of Heart After Crossing A Boundary

Note that offence under section 9(1)(a) will be complete as soon as the person

crosses the boundary as a trespasser with the requisite intent.

It does not matter if having entered the new part of a building they subsequently have a change of heart and decide against carrying out the intended prohibited consequence.

Checklist – Burglary Section 9(1)(b)

Step 1

Has the accused made an effective entry – i.e. have they crossed a boundary?


Step 2

At the time of crossing the boundary was the accused a trespasser?


Step 3

Having crossed the boundary as a trespasser, did the accused either proceed to:

Steal or attempt to do so - (result); or

Commit GBH or attempt to do so - (result).

If no – no offence. If yes – the offence of section 9(1)(b) burglary has been committed.



Learning Point

A key difference to the offence under section 9(1)(a) is that for the offence to be

committed under section 9(1)(b) the accused does not need to cross the boundary with any specific advance agenda.

All that is required is that:

At the point of crossing the boundary the accused was a trespasser; and

Having crossed the boundary they carried out one of the prohibited results of either:

Stealing or attempting to do so; or

Committing GBH or attempting to do so.

It is therefore possible for a person who had no plans to carry out a prohibited act when

they crossed the boundary as a trespasser to be guilty of an offence under 9(1)(b) if they hatched the plan and executed the prohibited act after their entry into a part of the building.

C – Aggravated Burglary



Penalty In The Crown Court – Life Imprisonment

Aggravated burglary will arise where both:

Step 1 Step 2

A person commits burglary....

....and at the time has with them (readily to hand) one of a “F.E.W.” things.



F

E

W

Firearm or imitation

firearm

Explosive

Weapon of offence

Firearm includes:

An airgun; and

A pistol.

Imitation firearm includes:

Anything that has

the appearance of a firearm;

Irrespective of whether it is capable of being discharged.

Any article either:

Manufactured for the purpose of producing a practical effect by explosion; or

Intended by a

person having it with them for that purpose.

Any article either:

Made (sole purpose);

Adapted (e.g. rolling

pin with nail driven through it); or

Intended;

For causing either:

Injury; or (e.g. knife, baseball bat, etc)

Incapacity; (e.g.

rope, gaffer tape, handcuffs, etc)

To a person.

At The Time – Learning Point

For The Aggravated Section 9(1)(a) Offence:

It must be shown that they had one of a F.E.W. things with them at the point of

entry – i.e. when they crossed the boundary.

Exam Trip Up

Watch out for questions where the accused:

After having crossed a boundary as a trespasser with the intent to do a

prohibited consequence (section 9(1)(a) offence is complete at this point);

Is disturbed by the occupier and fearing apprehension grabs hold of a weapon lying around in the room to defend themselves.



No offence of aggravated burglary will be committed as the accused did not have the weapon with them at the point that the section 9(1)(a) offence was complete – i.e. the time they crossed the boundary.

For The Aggravated Section 9(1)(b) Offence:

It must be shown that they had one of a F.E.W. things with them at the point of the

result of either:

Result 1 Result 2

Stealing.

Causing GBH.

Exam Trip Up

Watch out for questions where a burglar who after having crossed a boundary as

trespasser is disturbed and opportunistically picks up a weapon lying around the room and causes GBH to the occupier.

They will have committed the aggravated offence of section 9(1)(b) – as they had the weapon with them at the time of the result of causing GBH.

Explosive - Exam Trip Up

An empty box with “BOMB” written on it would be insufficient to constitute an

explosive.

However, an empty box with BOMB written on it will constitute a weapon of offence if the burglar gave it to a security guard stating, ‘if you move the movement sensitive bomb in this box will explode’.

In this set of circumstances, it may be any article made for causing incapacity to a

person.

Weapon Of Offence – Exam Trip Up

If a weapon of offence is made or adapted for causing injury or incapacity to a

person:

You are simply required to have it with you; and

No additional mens rea is required to commit the offence.



If a person has anything else (e.g. a screwdriver which is not made or adapted for causing injury or incapacity to a person:

Simply having a screwdriver to gain entry is not enough.

It is also necessary for the person to have the intention to use it as a

weapon of offence to cause injury or incapacity to a person.

D - Robbery



Penalty In The Crown Court – Life Imprisonment

An offence of robbery is committed by a person who:

Step 1 Step 2

Steals

(i.e. commits a

theft).

...and either:

Immediately before the theft; or

At the time of the theft; In order to facilitate the theft either:

Uses force on any person; or

Puts any person in fear of being then and there subjected to force.

Seeks to put any person in fear of being then and there

subjected to force.

Learning Points

1 - There Must Be A Theft

There must be a theft – if there is no theft there can be no robbery.

Exam Trip Up

Using force to TWOC is not robbery as a TWOC does not amount to an offence of

theft.



2 - Force Must Be Used Or Threatened

Force must be either:

Action 1 Action 2

Used

Threatened

(a) Force Used

The Extent Of Any Force Used

The force used need only be minimal – e.g. nudging into a victim – R v Dawson [1976] 64 Cr App R 170.

Where May The Force Be Applied

The force may be applied either:

Directly onto a person’s body;

Via a struggle wrenching an item a victim was carrying – (e.g.) a bag snatch.

The Force Used Must Be Voluntary

The force used must be voluntary.

If a pickpocket is in the process of stealing a purse and is nudged by the crowd, loses their balance and falls into the victim applying involuntary force – no robbery will be committed.

Who May The Force Be Directed Towards

The force used can be directed towards either:

Recipient 1 Recipient 2

The victim.

A 3rd party.



An Example Of The Force Being Directed Towards The Victim

A puts B’s hand in a vice and starts to crush B’s hand (i.e. uses force on the victim).

A then tells B that he will continue to crush B’s hand until they hand over their wallet. B hands over their wallet.

A robbery will be committed as force was used on the victim immediately before the theft and the force was used in order to facilitate the theft.

An Example Of The Force Being Directed Towards A 3rd Party

A, B and C are in the same room. A puts C’s hand in a vice and starts to crush C’s

hand (i.e. uses force on the 3rd party). A then tells B that he will continue to crush C’s hand until B hands over their wallet. B hands over their wallet.

A robbery will be committed as force was used on a 3rd party immediately before the theft and the force was used in order to facilitate the theft.

(b) Threats To Use Force – Puts Or Seeks To Put Any Person In Fear Of

Force Being Used There And Then

The Accused Must Intend For Their Threat To Have The Effect Of Placing

A Person In Fear Of Force Being Used Against Them Self

At the time of making the threat the accused must intend for the recipient of the threat to be placed in fear of force being used against them self.

Exam Trip Up

The accused’s intention in making a threat must be to put a person in fear of force being used against them.

An intention to put the recipient of a threat in fear of force being used against another is insufficient – this would instead constitute a blackmail.

Exam Trip Up - There Is No Need For The Result Of The Person Threatened

Actually Being Fearful Of Force?

It is irrelevant whether the threat did or did not have the result of causing the person threatened to be fearful of force being used against them – R v Khan [2001] LTL 9 April.



Threats Must Be Capable Of Being Carried Out There And Then

The force threatened must be capable of being carried out there and then at the time of the threat.

Any threat of future force:

Will not be a robbery; and

Will instead be a blackmail.

Exam Trip Up

Threatening force at any place other than at the scene is insufficient - as it will not

be possible to execute such threats there and then.

Exam Trip Up

Threats directed over the telephone will not constitute a robbery - as it will not be possible to execute such threats there and then.

3 - The Timing Of The Use Or Threat Of Force

The use or threat of force must be used or made either:

Juncture 1 Juncture 2

Immediately before the stealing.

At the time of stealing.

Exam Trip Up – Using Violence After The Theft

A robbery will not arise if force is used only to make good an escape after

stealing.

4 - Establishing The Purpose Of The Use Or Threat Of Force

The force used or threatened must be used ‘in order to steal’.

A and B get into a fight and by chance during the fight B’s wallet falls out of B’s

pocket. A seeing the opportunity steals the wallet and runs away.



The offence of robbery will not be committed as the force:

Was used for the purposes of fighting; and

Was not used in order to steal.

Checklist – Robbery – Force Used

Step 1

Was there a theft?

If no – no robbery. If yes – proceed to step 2.

Step 2

Was force used upon either the:

Victim; or

A 3rd party?


Step 3

Was the force used either:


At the time of the theft.

If no – (used after the theft) no robbery. If yes – proceed to step 4.

Step 4

Was the purpose of the force used to facilitate the theft from the victim?

If no – no robbery. If yes – a robbery has been committed.

Checklist – Robbery – Threat Of Force Made

Step 1

Was there a theft?


Step 2

Was a threat of force made to a person?


Step 3

Did the accused intend for the recipient of the threat to be placed in fear of force being used against them self? NB – There is no need to prove the result that the recipient of the threat actually feared the use of force against them.


Step 4

Was the threat capable of being carried out at the time of the threat – i.e. there and then?




Step 5

Was the threat made either:


At the time of the theft.

If no (used after the theft) – no robbery. If yes – proceed to step 6.

Step 6

Was the purpose of the threat to facilitate the theft from the victim?

If no – no robbery. If yes - a robbery has been committed.

E – Taking A Conveyance Without Consent (TWOC)


Summary Only Offence

Penalty In The Magistrates Court – 6 Months Imprisonment And / Or A Fine

A person commits an offence of TWOC if they either:

Offence 1 – The Taker

Offence 2 – Allowing Self To Be

Carried

Without:

The consent of the owner; or

Other lawful authority;

They take any conveyance for either:

Their own use; or

Another’s use.

Knowing the conveyance was taken;

Without either:

The consent of the owner; or

Other lawful authority;

They either:

Drive it; or

Gets carried either:

In it; or

On it.



Learning Points - Offence 1: The Taker

1 - Consent

Any consent provided must be true consent – i.e. not under a misrepresentation.

Exam Trip Up

Watch out for questions where X requests to borrow a car from Y on the premise of a specific purpose to which Y provides their consent, and having obtained the consent X uses the car for an entirely different purpose from that agreed.

The fact that X used the car for a different purpose (and therefore obtained the consent via a misrepresentation) will not a “fundamental misrepresentation” – R v Peart [1970] 2 QB 672.

Exam Trip Up

If consent is obtained by fraud it is not made void. For example - a male who hires a vehicle using a driving licence he found would not be guilty of the offence of TWOC - Whittaker v Campbell [1983] 3 AllER 582

2 - Lawful Authority

The emergency services will have the lawful authority to remove obstructive conveyances.

3 - Definition Of A Conveyance? – Section 12(7) Theft Act 1968

A conveyance includes anything either:

Constructed

Adapted

...to carry a person by either:

Land.

Sea. (which includes, rivers,

lakes, etc)

Air.

Exam Trip Up

The definition does not include animals – e.g. horses, donkeys, etc.



Exam Trip Up

The conveyance does not need to have an engine.

4 - Definition Of Taken

Taken simply means that the conveyance was moved – it is irrelevant how far the conveyance was actually moved.

Exam Trip Up

If the vehicle remains stationary – no TWOC will have been committed. For example – in the case of R v Bogacki [1973] QB 832, no TWOC was committed when the engine of a vehicle was started, but the vehicle was not moved.

Exam Trip Up

It is irrelevant how the conveyance is moved – e.g. by pushing, letting the hand break off and letting it roll downhill, using the engine, etc - all that matters is that a movement, however small took place and that the conveyance was moved for the purpose of being used as a conveyance.

5 – The Purpose Of The Taking

Just moving the conveyance itself is insufficient - the conveyance must be taken (moved) for the purpose of allowing either the taker or another using the conveyance to be conveyed – i.e. carried.

Exam Trip Up

Watch out for questions involving friends moving a vehicle to a position out of sight for the purpose of a practical joke.

No offence will be committed as the purpose of moving the vehicle was not to enable them or another to be carried – the purpose was to wind their mate up.



Defences

The person who carried out the TWOC will have a defence if they believed (i.e. subjective test) that either:

Defence 1 Defence 2

At the time of taking they had lawful authority to move the conveyance.

They would have had the owner’s consent had the owner known of both:

The taking (moving); and

The circumstances.

The defences are both subjective tests - focus upon what was going on in the

defendant’s head to determine whether they held the respective beliefs.

Checklist – TWOC Offence 1 – The Taker

Step 1

Did the person intentionally take the conveyance – i.e. did they move the conveyance?

If no – no TWOC. If yes – proceed to step 2.

Step 2

Did they take (move) the conveyance for the purpose of allowing either them or another to be conveyed – i.e. carried.

If no – no TWOC. If yes – prima facie guilty of TWOC unless either of the defences in step 3 are present.

Step 3

Did they believe (subjective test) that either:

At the time of taking they had lawful authority to move the conveyance; or

They would have had the owner’s consent had the owner known of both the taking (moving) and the circumstances.

If no defence – guilty of TWOC. If either defence applies – no offence.



Checklist – TWOC Offence 2 – Allowing Self To Be Carried After The

Conveyance Was Taken

Step 1

Did the accused know for a fact that the conveyance had been taken without either:

The owner’s consent; or

Lawful authority?

If no – no TWOC. If yes – proceed to step 2.

Step 2

Was the conveyance moved while the accused either:

Drove it; or

Got carried either:

In it; or

On it.

If no – no TWOC. If yes – the accused is guilty of TWOC.

Exam Trip Up

Note that the accused must know for a fact that the conveyance had been taken without either the owner’s consent, or lawful authority – mere suspicion is insufficient.

As knowledge that the conveyance had been taken without either the owner’s consent, or lawful authority is a prerequisite – there is no belief defence applicable to the offence of being carried.

Exam Trip Up

If all persons in the vehicle deny driving - they are all charged with being carried.

F - Aggravated TWOC

Section 12(A) Theft Act 1968

Accident Causes Death – Indictable Only Offence

Penalty In The Crown Court – 14 Years Imprisonment



Basic Offence - Either Way Offence



There must be a TWOC (the basic offence) of a mechanically propelled vehicle (NB – narrower than a conveyance);

and Between the time:

The vehicle was taken; and...

... the recovery of the vehicle

...either:

The mechanically propelled vehicle was driven dangerously on either:

A road; or

Other public place.

Injury or damage was caused by either:

An injury accident - owing to the

driving, an injury is caused to any person; or

A damage accident - owing to the

driving, damage is caused to any property; or

Damage to the vehicle taken.

Timeline

Time of TWOC of a MPV -------------------------------------------------------------------------------------- Time of recovery

In between - one of 4 consequences arose:

I

Driven dangerously on a road or public place

Injury accident caused by driving

Property accident caused by driving

Damage to the vehicle

Exam Trip Up

For the basic offence of TWOC you just need a conveyance which need not be

mechanically propelled - (e.g. a rowing boat).

For the aggravated offence of TWOC you need a mechanically propelled vehicle - (i.e. a rowing boat would not suffice).



Defence To Aggravated TWOC – Section 12(A)(3) Theft Act 1968

It is a defence to prove that either:

Defence 1 Defence 2

Any of the 4 consequences happened before the basic offence.

The person was not in the immediate vicinity of the vehicle when the

consequence occurred.

Exam Trip Up

If a person initially smashes the window of a car and later returns to take the car:

This is not aggravated TWOC - as the damage occurred before the basic

offence.

Instead the separate offences of criminal damage and TWOC will have been committed.

G - Abstracting Electricity


Either Way Offence



A person commits an offence if they dishonestly either:


Use electricity without due authority.

Cause electricity to be wasted.

Cause electricity to be diverted.

Exam Trip Up

It is not possible to steal electricity - therefore it is not included in the burglary

offence.



Exam Trip Up

Watch out for questions involving unauthorised use of the following at work:

A telephone for personal calls; or

Surfing the internet.

Both situations will amount to the use of electricity without due authority.

Exam Trip Up

By-passing an electricity meter is included in this offence.

Exam Trip Up

Stealing a pedestrian controlled vehicle is included in this offence.



H – Handling Stolen Goods


Either Way Offence



Step 1

Was the accused acting otherwise than in the course of stealing – i.e. had the goods already been stolen?


Step 2

Did the accused either know or believe the goods to be stolen?


Step 3

Did the accused behave dishonestly in carrying out either of the following acts?


Step 4

Did the accused receive the stolen goods for their own benefit?

NB – The accused must personally benefit from the receipt of the stolen goods.

Did the accused either:

Undertake; or

Assist;

In the stolen good’s:

Retention;

Removal; Realisation; Disposal;

By or for the benefit of

another person?

NB – The accused must be acting for the benefit of another.

Exam Trip Up

This element will not be made out if it is the accused alone who derives the benefit.

If no – no offence – proceed to step 5. If yes – guilty of handling.

Step 5

Did the accused arrange (i.e. took preparatory steps) to do either of the above acts? NB – There is no need for the result of any of the above acts.

If no – no offence. If yes – guilty of handling.



Learning Points – Handling

The Theft Must Be Complete Prior To The Handling

The theft of the goods must be complete before the “handling” activity takes place

- i.e. the handling can only take place after the commission of the theft.

Knowledge Or Belief That The Goods Were Stolen

The accused must either know or believe that the goods were stolen – mere

suspicion is insufficient.

Exam Trip Up

“Deliberately turning a blind eye – will amount to knowledge or belief.

Where Can The Goods Be Stolen From?

Handling goods stolen from abroad is an offence in the UK if it also constitutes an

offence in that other country.

What Will Constitute Stolen Goods?

Stolen goods will include either:

Goods 1 Goods 2 Goods 3 Goods 4

The original stolen

goods.

For example - a DVD.

The proceeds from

stolen goods.

For example - cash from the sale of the

DVD.

Goods obtained by

blackmail.

Goods obtained by

fraud.

When Will Goods Cease To Be Stolen?

Goods cease to be stolen when they have been taken back into lawful possession.



I - Reprogramming Mobile Phones

Section 1 Mobile Telephones (Re-programming) Act 2002

Either Way Offence



A person will commit an offence if both of the following elements are present:

Element 1 Element 2

They either:

Are not the manufacturer of a unique device identifier (UDI);

Do not have the written consent of the manufacturer of a unique device identifier (UDI).

They either:

Change the unique device identifier (UDI); or

They interfere with the operation of the unique device identifier (UDI).

J – Power Of Search For Stolen Goods - Section 26 Theft Act 1968

If the contents of an information provide a Justice with reasonable cause to believe that any person has stolen goods either:

In their custody;

In their possession; or

On their premises;

The Justice may grant a warrant to search the same; and

A constable may:

Enter and search premises; and

Seize any goods on the premises that they believe to be stolen.



K – Having Or Supplying Anything To Facilitate Re-Programming

Section 1 Mobile Telephones (Re-programming) Act 2002

Either Way Offence



A person commits an offence if either:

Offence 1

Custody Or Control

Offence 2

Supply

Offence 3

Offering To Supply

They have in their:

Custody; or

Control;

Anything that may be

used for the purpose of changing or interfering with a UDI; and

They intend to either:

Use it unlawfully themselves for that purpose; or

Allow it to be used unlawfully by another for that purpose.

They supply anything

which may be used for the purpose of changing or interfering with the operation of a UDI; and

They either:

Know; or

Believe;

That the person to whom the thing is supplied intends to either:



They offer to supply

anything which may be used for the purpose of changing or interfering with the operation of a UDI; and

They either:

Know; or

Believe;

That the person to whom the thing is offered intends to either:





L – Advertising Rewards


Summary Only Offence

Penalty In The Magistrates Court – Fine

Step 1

Was there a public advertisement for the reward for the return of goods that were either:

Lost; or

Stolen?


Step 2

Did the advertisement state that upon the return of the goods either:

That no questions would be asked; or

The returner would be saved from apprehension or enquiry – i.e. immune from prosecution; or

Any monies paid will be repaid (i.e. returned).

If no – no offence. If yes – then all of the following persons commit the offence:

The person who placed the advertisement;

The printer; and

The publisher.



M – Going Equipped


Either Way Offence



Definition Of Going Equipped

A person commits an offence if:

When not at their place of abode – i.e. away from where they live;

They have with them – i.e. readily accessible;

Any article;

Which they intend for either:

Themselves; or

Another;

For the future use in the course of or in connection with either a:

Burglary; or

Theft - includes TWOC.

Place Of Abode

Put simply this means where they live.

Exam Trip Up

Business premises will not be an abode – unless the accused also lives where they work.

Exam Trip Up

Watch out for questions involving campervans in which an accused lives:



Location Of The

Campervan

Effect Of Having An Article With

Them For Use In A Theft Or

Burglary

Campervan is parked where they live - e.g. at a campsite.

No offence

Campervan is either parked or moving at a place away from where they live.

Offence

Has With Them

This is a narrow concept and means that the article is readily accessible.

Article

Put simply – an article is any object.

Exam Trip Up

Animals trained to carry out thefts or burglaries are not articles.

The Purpose Of Having The Article

The article must be intended to be used by either the accused or a 3rd party in

some future theft or burglary.

Exam Trip Up

Watch out for questions involving an accused having with them an article that had

been used previously for a theft or burglary.

No offence will be committed in such circumstances as the intended use of the article must be for a future theft or burglary.



Checklist – Going Equipped

Step 1

Was the accused away from where they live – i.e. their place of abode?


Step 2

Did the accused have with them an article which was readily accessible?


Step 3

Was the accused’s intention to either use themselves or enable a 3rd party to use the article for use in a future theft or burglary?

If no – no offence. If yes – guilty of going equipped.

N - Making Off Without Payment – “Bilking”


Either Way Offence



An offence of making off without payment is committed when a person:

Knows that payment on the spot is required for either:

Goods supplied; or

Services done; and

They dishonestly make off without payment;

Intending to avoid payment.

Payment On The Spot

The accused must know (i.e. be subjectively aware) that payment on the spot is

required.

The Goods Or Services Must Be Legally Enforceable

The service or goods must be legally enforceable.



Exam Trip Up

Watch out for questions concerning making off without paying for goods or services

that are legally unenforceable such as:

Illegal gambling – no offence; or

Prostitution – no offence.

The Intention Must Be To Totally Avoid Payment

The intention must be to completely avoid payment altogether.

Exam Trip Up

Watch out for questions involving an intention to simply delay payment – this will

not constitute an offence.

Checklist – Bilking

Step 1

Did the accused know (i.e. be subjectively aware) that payment on the spot for the goods or services was required.


Step 2

Were the goods or services legally enforceable?


Step 3

Did the accused make off without paying – i.e. do a runner?


Step 4

Did the accused behave dishonestly as they intended to avoid payment (i.e. intended never to pay)?

If no – no offence. If yes – guilty of bilking.



O – Blackmail




The offence of blackmail will be committed when the accused makes an unwarranted demand of another accompanied by menaces with either:

Purpose 1 Purpose 2

A view to (i.e. contemplating the possibility of) a gain for either:

Themselves; or

Another.

The intent to cause a loss to another.

Learning Point

The offence is complete at the point that the demand with menaces is made.

There is no need for the result of gain or loss to be suffered.

Exam Trip Up

The case of Treacy v DPP [1971] AC 537 established that if the demand with

menaces is made via mail:

The offence is complete at the time of posting; and The letter does not have to be received.

Defence To Blackmail

No offence is committed if the accused believed (subjective test) that both:

Step 1 Step 2

They had reasonable grounds for making the demand.

The menace was a proper way of enforcing the demand.



For example:

A demand from the electricity board saying pay up or we’ll switch your lights off is fine.

However a demand from the electricity board saying pay up or we’ll punch your lights

out is not!

Exam Trip Up

Note that the test is subjective in nature based upon the accused’s belief at the time of making the demand – focus on what was going on in the defendant’s head.

Exam Trip Up

It is not an offence to blackmail a person into having sex with you.

P – Retaining A Wrongful Credit

Section 24A Theft Act 1968

Either Way Offence



Step 1

Has a wrongful credit been paid into the accused’s account?


Step 2

Does the accused know that the credit is wrongful – (i.e. were they subjectively aware of this fact)?


Step 3

Has the accused acted dishonestly by failing to cancel the credit?

If no – no offence. If yes – guilty of retaining a wrongful credit.



Q - Proceeds of Crime Act 2002

Definition Of Criminal Conduct - Section 340 Proceeds of Crime Act 2002

Criminal Conduct is conduct which either:

Situation 1 Situation 2

Constitutes an offence in any part of the UK.

Would constitute an offence in any part of the UK if it occurred there.

Definition Of Criminal Property – Section 340 Proceeds of Crime Act 2002

Property is criminal property if both:

Factor 1 Factor 2

Either:

It constitutes a person’s benefit from criminal conduct; or

It represents such a benefit from

criminal conduct (in whole or in part and whether directly or indirectly)...

...and the alleged offender knows or

suspects that it constitutes or represents such a benefit.

Exam Trip Up: Mens Rea Relating To Property

The mens rea relating to property is either ‘knowing’ or ‘suspecting’.

Dishonesty is not required.

Note the key difference with the offence of handling where the handler must ‘know

or believe’ for the offence to be complete.



Concealing Criminal Property

Section 327 Proceeds of Crime Act 2002

Triable either way

Fourteen years imprisonment and/or fine on indictment

Six months imprisonment and/or fine summarily

A person commits an offence if they either:

Conceal criminal

property

Disguise criminal property

Convert criminal property

Transfer criminal property

Remove criminal property

....from England and Wales and Scotland, or from Northern Ireland.

What Is Concealing Or Disguising Criminal Property?

Concealing or disguising criminal property includes concealing or disguising its:

Nature

Source

Location

Disposition

Movement

Ownership

Any rights with

respect to it

Exam Trip Up: Similar to Handling But Not The Same

Handling stolen goods must take place ‘otherwise than in the course of stealing’

and ‘by or for the benefit of ‘another’.

This is not the case for the POCA offence - therefore the thief could be guilty of the POCA offence if they try to carry out some of the restricted actions i.e. concealing, converting etc. of their own stolen property.



Arrangements In Relation To Criminal Property


Triable either way

Fourteen years imprisonment on indictment and/or fine

Six months’ imprisonment and/or fine summarily


Enter into an arrangement

Become concerned in an arrangement

...which they either:

Know

Suspect

...facilitates (by whatever means) either the:

Acquisition

Retention

Use

Control

...of criminal property by or on behalf of another person.

Acquisition, Use and Possession of Criminal Property


Triable either way

Fourteen years imprisonment on indictment and/or fine

Six months’ imprisonment and/or fine summarily


Action 1 Action 2 Action 3

Acquire criminal property

Use criminal property

Have possession of criminal

property



Exam Trip Up: Mens Rea Relating To Property

The mens rea relating to property is ‘knowing’ or ‘suspecting’ - dishonesty is not

required.

Exam Trip Up: Defence Re Possession Of Criminal Property

A person will not commit an offence if they acquired, used, or had possession of the

property for adequate consideration.

For example - a plumber gets paid for services rendered via ill gotten gains by his customer.

Crime Subject 12: Theft & Related Offences · Crime Subject 12: Theft & Related Offences A ... On...

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