SQE 1 - Criminal Law (Theft Offences)

What are the four theft offences governed under the Theft Act (TA) ?

1. Theft (s1) → Stealing property from another

2. Robbery (s8) → Stealing property from another AND using force or fear of force in order to steal

3. Burglary (s9) → Trespassing in a building and intending to commit/committing/attempting to commit an offence

4. Aggravated Burglary (s 10) → Trespassing in a building and intending to commit/committing/attempting to commit an offence ANF having an aggravated article at the point of doing so

What are the five elements of theft (s1 TA)?

1. D must *appropriate*

2. The appropriation must be of *property*

3. The property must *belong to another*

4. D must be *dishonest* in his appropriation of property belonging to another

5. D must have the *intention to permanently deprive* another person of that property

What is appropriation?

- s1 Theft element

The first requirement is that D appropriates property.

Appropriation is dealt with in s3.

'Appropriation' is concerned with dealing with property as though you are the owner. Such dealings may include:

- gifting the property to another

- selling the property

- damaging or destroying the property, etc

What questions should we ask when determining if something has been appropriated?

1. How many 'rights' must someone appropriate?

2. Does an appropriation require physical touching?

3. Can someone appropriate even though they have been given permission?

4. Can someone appropriate something that they have found and kept?

5. Can someone appropriate something that they have lawfully paid for?

How many 'rights' must someone appropriate?

An owner of property will possess a number of rights in relation to property (known as 'bundle of rights'). For theft, it is sufficient if only one of these rights have been appropriated.

Does an appropriation require physical touching?

There is no need for 'physical appropriation', there are circumstances where it is possible for D to appropriate property without laying a hand on the property, so long as their conduct falls within the remit of the rights of the owner.

R v Pitham (1977) → An invitation to purchase the victim's furniture was equivalent to appropriation - even though there was no touching of the property concerned.

Can someone appropriate even though they have been given permission?

The offence of theft requires no 'adverse inferences' with the rights of another, this means that you can appropriate property even where another person has consented to you doing so.

Edwin sold electrical goods to his friends, who brought them through the use of two building society cheques. Edwin was aware that the cheque were stolen. Edwin obtained the consent of the store manager to allow the sale, though he did not inform the manager that the cheques were stolen.

Has Edwin appropriated property in this instance?

These were the facts of DPP v Gomez [1993]. The House of Lords held that Edwin had appropriated the electrical goods even though he has the consent of the store manager to sell them. His permission to do so was irrelevant, there was still an appropriation.

R v Hinks

The principles established in DPP v Gomez extends to situation where D was gifted the property.

Can someone appropriate something that they have found and kept?

Yes, wording of s3(1) is broad enough to deal with the situation in which a defendant comes about the property lawfully but then decides to keep it. s3(1) makes it clear that D can appropriate property by 'keeping it or dealing with it as an owner' → Known as secondary or later appropriation

Example

Sam goes to a friend's house for a party, taking her overcoat with her. Upon leaving, she picks up what she mistakenly believes to be her overcoat, but in fact it belongs to her friend. Sam only realises this when she gets home but decides to keep it. In this example, Sam has appropriated the coat. If the other elements are met, Sam would be liable for theft at the point that she possessed the dishonest intention to keep the coat.

4. Can someone appropriate something that they have lawfully paid for?

This is defined as a 'bona fide purchser' defence in s3(2), The bona fide purchaser is an innocent third party that has come acrss the stolen property after lawfullt purchasing it (ie paying for it or giving something of value in return) where they had no knowledge that the property was stolen. In this circumstance, the bona fide purchaswe will not e considered as appropriation of property given the property lawfully belongs to them.

e.g. Mark visits his local car salesman to find a bargain car he yse as a 'runaround'. He spots a car valued at what he thinks is a 'pretty reasonable price for its agw' and purchases it on the spot with xase. It turns out that the car was stolen, however Mark had no knowledge of this. Therefore, Mark has not appropriated property given that he has come across it honeslty (ie in bona fide) and for value.

What is property?

Property includes money and all other property, real or personal, including things in action and other intangible property (s4(1) TA)

Summarise the definition of property

Money means: coins or banknotes of any currency

Real property means: land (also known as realty). 'Land' includes the ground itself and anything attached to it (eg a house). Generally people cannot steal land except in some circumstances.

Personal property means: anything that is not land (ie is not property). Personal property is also referred to as 'personalty' and can be classified as:

- Things (or 'choses') in possession: tangible property that can be touched and moved, for example, a watch, smartphone or a car

- Things (or 'choses') in action: intangible property such as bank account, cheque or intellectual property.

What are the exceptions where land can be stolen?

1. Land may be stolen in circumstances where an individual is entrusted, for example:

- a trustee

- a personal representative

- a person authorised with power of attorney (not merely someone who purports or hold themselves out as being authorised)

e.g., a trustee selling land belonging to a trust, in breach of trust

2. Any person can steal land if they appropriate something that forms part of the land by severing it, causing it to be severed or appropriating it after it has been severed

e.g., a neighbour cutting down a tree branch that is encroaching on their land commits theft by severing the branch from the tree

3. A tenant may guilty of theft if he appropriates a fixture, or part of a fixture or structure, that forms part of the land

e.g. a tenant is guilty of theft if he appropriates a kitchen cupboard.

Can land be stolen?

In general, land cannot be stolen (s4(2)),

Likewise s4(3) provides that there is no theft offence where an individual picks mushrooms, flowers, fruits or foliage from a plant *unless* they do so as a reward, for sale or for any other commercial purposes.

In practice this means:

- Mark trespassing on Sam's land and picking a flower head from a shrub will commit no offence if he gives the flower to to Adam as a guilty

- Mark will commit an offence, however, if he picks flowers to sell them at his flower stall in the local market

4(3) only relates to 'picking' of certain flora, an offence is still committed by D if they uproot or remove an entire plant belonging to another (irrespective of commercial purposes).

What us theft of things in action?

- property definition

A thing in action is an intangible right allowing someone to enforce a right against in another law (eg suing an individual for a debt owed is a thing in action). Such rights amount to property that can be stolen and include:

- *Bank accounts*: supports Mark logs into Sam's online banking and transfers £1,000 from her account to his own personal account. Mark has appropriated Sam's right to control the money in her account.

-*Cheques*: suppose that in retaliation, Sam draws a cheque using Mark's chequebook and forgets his signature. Should Sam present that cheque at her bank, to credit her own account, she will have appropriated Mark's right to control the money in his account

What is theft of other property?

- Property definition

s4(1) includes the phrase 'all other property'

Can animals be stolen?

- Theft of other property

Tamed animals (e.g. pets or animals in the zoo) can be stolen.

The position of wild/untamed animals is more complex, a wild creature can amount to 'property' if it has been, or is in the process of being, 'reduced into possession'.

Can electricity, gas and water?

- Theft of other property

Electricity cannot be stolen.

In contrast, gas and water, can be stolen, if for example, it is siphoned from a container.

Can confidential information be stolen?

- Theft of other property

Confidential information is not 'property' that can be stolden (Oxford v Moss- it is not theft to copy a question from an examination paper). Had D taken the exam paper, this could have been theft of the paper.

Can human bodies and other bodily matters?

- Theft of other property

Human bodies and body parts cannot be generally stolen unless 'they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes (R v Kelly, R v Lindsay [1999] per Rose LJ).

Bodily fluids such as semen and urine are classified as property and can be stolen (eg a urine same stolen from police evidence).

Can services be stolen?

- Theft of other property

Services do not constitute 'property' and cannot be stolen - through separate offences of making off without payment and fraud will cover this gap in the law.

Can unlawful property be stolen?

- Theft of other property

Illegal or unlawful property can be stolen.

For example, D can still property that has already been stolen, and can steal property that is unlawful (eg stealing drugs from a drug dealer).

What is belonging to another?

- s1 Theft element

Property will belong to another person where they have possession or control over it or any other proprietary right or interest (s1(1).

Is ownership of the property required?

- belonging to another

Ownership is not a requirement; a theft may occur where property is appropriated from an individual who is merely borrowing the item in question. A court may find that property belongs to another, for example, another person:

- owns the property

- has physical possession over the property

- has a lien, or some form of security over the property

This means it's possible to steal one's own property

Frank takes his car to a local garage to be repaired. Frank states that he will pay for repairs and take the car away the next dat. Instead, and at night, Frank takes the car from the garage having not paid for the repairs.

Does the car 'belong to another'?

These were the facts of R v Turner (No 2) [1971]. The Court of Appeal ruled that the car 'belonged' to the garage in that they held possession and control over the car, until Frank had paid for the repairs, at the time it was taken by Frank.

What is the dishonesty?

- Mens rea element

The first mens rea element is that the D must be dishonest in his appropriation of property belonging to another.

Dishonesty is assessed objectively by asking whether D is dishonest in his conduct according to the standard of ordinary decent people.

Summarise theft offence: what does appropriation mean?

What is the order of determining dishonesty?

First deal with s2(1) TA to see if any of the dishonesty exceptions apply then proceed with the common law test.

What is s2(1) TA?

s2(1) identifies three circumstances in which a person's appropriation of property *is not* dishonest:

- D has a genuine belief that he has a right in law to deprive another of property

- D has the genuine belief that he would have consent to appropriate the property

- D has a genuine belief that the person to whom the property belongs to cannot be discovered by taking reasonable steps

For each of the circumstances, D's belief does not need to be reasonably held, but must be honest (though the more unreasonable a belief, the more likely it was not genuinely held)

What is 'D has a genuine belief that he has a right in law to deprive another of property'?

-s2(1) exceptions

If D holds a genuine belief that he had a right in law to deprive another person of property, he will not be dishonest in his appropriation. The right in law may be for himself or on behalf of another.

For example, *R v Robinson [1977]*, D was owed money by V. During a fight, D forcibly took the money owed from V. D was not liable for robbery on the basis that he believed that he had a right in law to the money owed.

What is 'D has the genuine belief that he would have consent to appropriate the property'?

-s2(1) exceptions

If D holds a genuine, albeit mistaken, belief that he would have consent to appropriate the property, has the party who could provide consent known of the appropriation and the circumstances, he will not be dishonest in his appropriation.

For example, Mark and Sam share an apartment together, Mark drinks Sam's wine genuinely believing that she would consent to him doing so, Mark, in this case, will not be liable for theft.

What is 'D has a genuine belief that the person to whom the property belongs to cannot be discovered by taking reasonable steps'?

-s2(1) exceptions

If D holds a genuine belief that the person to whom the property belongs to cannot be discovered by taking reasonable steps. he will not be dishonest in his appropriation. Reference to 'reasonable' concerns the steps to be taken to discover the person to whom the property belongs.

For example, in *R v Small*, D was not liable for theft having taken a car that he genuinely believed to be abandoned.

What is the common law test for dishonesty?

Should the circumstances in s2(1) not apply then you would determine whether D is dishonest according to the common law test.

This test was established in Ivey v Genting Casinos [2017] and made up of an subject and objective element.

What is the D's subjective beliefs (stage 1 Ivey)?

- Common law test

In respect's of D's subjective beliefs:

- Reference to 'as to the facts' means taking account of D's state of knowledge. This includes everything that has led 'an accused to act as he or she did'. The experience and intelligence in forming his belief should be considered where relevant (R v Barton; R v Booth, per Lord Burnett CJ)

- The state of belief on the part of D need not be reasonably held, but must be genuinely held (reasonableness will be a relevant factor, however, as to whether the belief was genuinely held).

Insert flowchart figure 7.2

What is the objective evaluation by the arbiters of fact (stage 2 Ivey)?

- Common law test

In respect of the objective evalusation by the arbiters of fact:

- There is no requirement that D must subjectively appropriate that what he has done is, by those standards, dishonest.

What is intention to permanently deprive?

- s1 Theft element

Final mens rea element:

Intention: there is no requirement for D to succeed in permanently depriving another of the property; an intention is sufficient. The offence is one of specific intent

Permanently: a temporary deprivation is not sufficient (though see s6 below)

Deprive: the intention must be to deprive another of the property; it is irrelevant whether D intends to make a gain for himself (compare with fraud).

What guidance do we use when D's intention to permanently deprive isn't obvious?

In these exception circumstances, s6 TA provides guidance.

What are the two features of s6 TA?

1. Intention to permanently deprive: where D's intention is to treat the property as his own to deal with regardless of another's right (s6(1))

2. Where D parts with the property at the risk of non-return (s6(2))

What is 'Intention to permanently deprive: where D's intention is to treat the property as his own to deal with regardless of another's right (s6(1))'?

-s6 element

- If D intends to treat property as his own, though not meaning the other person to lose the property itself, is treated as having an intention to permanently deprive.

- An intention to treat thing as his onw can be seen seen in a case where items are ransomed (ie return of property following a condition) OR replacing the property (eg taking money from a till and replacing it next week).

How is R v Marshall an example of D intending to treat the property as his own?

D sold on, used by unexpired London Underground tickets and travel cards. The cards were eventually returned but D had treated the tickets as his own, disregarding the rights of the London Underground.

What is an example where borrowing or lending could amount to D intending to treat property as his own/permanently deprive?

In cases where the borrowing is equivalent to an outright taking or disposal. A borrowing has such equivalence the value or virtue of the property is lost or reduced when it is returned (eg Sam borrows Mark's theatre tickets without his consent, watches the show and then returns the tickets; in this case, the tickets are now worthless).

What is 'Where D parts with the property at the risk of non-return (s6(2))'?

- s6 element

If D parts with the property appropriated, and there is a risk that he will not get the property back, he will be treated as having an intention to permanently deprive.

e.g. Mark takes Sam's silver earrings and pawns them for £500 in order to pay off his debts. In this scenario, while Mark is capable of retrieving the property (by redeeming it), there is a risk he will be unable to do so. Therefore, Mark would be held as having the intention to permanently deprive.

Summarise theft offence: what is the meaning of appropriation?

Appropriation refers to the assumption of rights of another. D can appropriate even if they have consent, and need only appropriate one of the rights of another.

Summarise theft offence: what is the meaning of property?

Property refers to money or any other types of property, whether real or personal. Land cannot generally be stolen unless a circumstance in s4(2) applies.

Summarise theft offence: what is the meaning of 'dishonesty'?

Dishonestly is not defined in the TA. First the court will consider whether D was 'dishonest' in his appropriation, by use of the circumstances in s2(1) TA. The test of dishinesty, which asks whether D was objectively dishonest according to the standards of an ordinary decent person.

In order to answer this question, the arbiter of fact will first identify the subjective state of knowledge or belief held by D. Whether D appreciates that his conduct is dishonest is irrelevant.

Summarise theft offence: what does property 'belonging to another'?

Property belonging to another where another person has possession, control or proprietary interest in that property. Property will continue to belong to another if it is received for a particular purpose or by mistake.

Summarise theft offence: what is the requirement that D must have the 'intention to permanently deprive'?

Intention to permanently deprive should be afforded its ordinary meaning. In most cases, an intention will be obvious. Where it is not so clear, the court may consider s 6 TA and identify whether D's dealing with the property could be considered as being equivalent to an outright taking.

What are the elements of robbery?

1. D must commit theft

2. D must use *force, or fear of force, on any person*

3. D must use force or fear of force. *immediately before or at the time of stealing*

4. The force, or fear of force must be used *in order to steal*

5. D must have *intended to use force in order to steal*

What is D must commit a theft?

- Robbery element

D must have committed the theft. This requirement exists on account that robbery is, in essence, an aggravated form of theft.

Therefore, in order for a robbery to be charged, one must first prove all five elements of theft. If any of the elements are missing, D cannot be liable for robbery.

What is force or fear of force on any person?

- Robbery element

D must either:

- use force on any person; or

- put or seek to put any person in fear of being then and there subjected to force

What is use of force?

Force is not defined in TA, but as an ordinary english word it is for the juryto determine as a matter of fact, whether the defendant has used force on another person.

What are the general principles regarding force?

1. Force need not be substantial

2. Force used need not be directly applied to the victim.

What is 'force need not be substantial'?

- General principle regarding force

The TA requires that force is used on any person; there is no requirement that the force be substantial. It is for the jury to determine whether what D did amounted to force. This can lead to different outcomes:

- R v Dawson → jostling with a man and causing him to lose his balance amounted to force

- R v Clouden → wrenching a shopping basket from the hand of another amounted to the use of 'force'.

What is 'force used need not be directly applied to victim'?

- General principle regarding force

- R v Clouden → Force can be applied indirectly in circumstances where, e.g., the force is directed at the property as opposed to the person (eg snatching a handbag or handbasket off the victim)

What is fear of force?

The alternative actus reus is that D 'puts or seeks to put another in fear of being then and there subject to force;.

Fear does not mean that the victim must be afraid. Rather, the use of the word fear means that the victim must 'apprehend' that force will be used (similar to fear).

What are the two ways that the fear of force can be satisified?

- 'Puts' in fear of force → D succeeds in causing V to apprehend the infliction of force

- 'Seeks to put' in fear of force → D intends to cause V to apprehend the infliction of force, but V does not actually apprehend such force

Does the force or fear of force need to be on the person to whom the property belongs to?

No, the force or dear of force can be used on 'any person'. Force or fear of force need not be used on the person who owns the property.

What is immediately before or at the time of stealing?

- Robbery element

The force, or fear of force must be used on any person 'immediately before or at the time' of stealing.

What is in order to steal?

- Robbery element

In order to steal means that the force is used to enable the theft to take place and is a matter to be determined by the jury.

Important things to note:

- where force is used *in order to escape* but not in order to steal, there will be no robbery. (e.g. Mark pushes a security guard out of the way in order to escape with a watch stolen from the jewellery shop counter).

- where theft is merely an *afterthought* to the use of force, there will be no robbery (e.g. Mark and Sam get into a fist fight and decide while Mark is unconscious, to steal his wallet. In this example, Sam has not used force in order to steal).

What is intention to use force?

- Robbery element

D must intend to use force, or the fear of force in order to steal. This element looks to the D's subjective intention in respect of his conduct.

For example, did the D intend to cause the victim to fear the application of force in order to steal?

Summarise robbery offence: what does 'steal' mean?

In order for D to commit the offence of robbery, there is a requirement of a completed theft (ie D must steal). Without a completed theft, there is no offence of robbery.

Summarise robbery offence: what is the requirement for D to use 'force' or 'the fear of force'?

D must either use force on any person, in the sense of using force against that person, or he must put, or seek to put, a person in fear of being subjected to force. It is irrelevant whether an individual is put in fear of being subjected to force - it is sufficient that D seeks to put the victim in fear of such force.

Summarise robbery offence: what does it mean to say that force must be used on 'any person'?

D may use force on any person in order to effect the theft. The force need not be used on the person whom D is stealing from.

Summarise robbery offence: what is the meaning of 'immediately before, or at the time of doing so?'

D must use force, or the fear of force, immediately before the dishonest appropriation of the property belonging to another, or at the time of the dishonest appropriation.

Summarise robbery offence: what is the requirement that force must be used 'in order to steal'?

D must use force, or fear of force, in order to enable his theft to take place. Should D use force for some purposes other than to steal, or use force in order to escape, there is no liability for robbery.

Summarise robbery offence: what must D 'intend' for the offence of robbery?

D must intend to use force, or fear of force, in order to steal. His intention must be clearly for that purpose.

What are the elements for s9(1)(a) burglary?

(a) D must *enter* a building

(b) The entry must be a *building or part of a building*

(c) D must be a *trespasser* when he enters the building or part of a building

(d) D must have the necessary *intention or recklessness* as to being a *trespasser*

(e) D must *intend to commit one of the ulterior offences*

What are the elements for s9(1)(b) burglary?

(a) D must have *entered* a building

(b) The entry must be of a *building or part of a building*

(c) D must be a *trespasser* when he enters the building or part of the building

(d) D must have the necessary *intention or recklessness* as to being a *trespasser*

(e) D must *commit one of the ulterior offences*

What is entry?

- Burglary elements

Both s9(1)(a) and 9(1)(b) requires the D to enter a building (though the expression of this is different).

Entry is not defined in the TA, it has been understood by the case law that entry must be 'effective', this is a question of fact for the jury to determine.

What are the principles relating 'effective entry'?

- *Entry need not be 'substantial*': This means that the D need not have wholly entered the building or part of a building, it is insufficient if only part of the D's body in the building.

- *The defendant need not be 'in a position to' steal, inflict GBH or criminal damage: It is irrelevant that he is not actually able to commit an ulterior offence because, for example, his body gets stuck when he enters the building.

- *Entry may be effective by use of an instrument*. For example, the defendant's entry may be effective where he uses an instrument or tool to enable him to steal.

- *Entry may be effective by use of an innocent agent*. For example, the defendant's entry may b effective where he uses an innocent agent (eg a child or someone who lacks mens rea) in order to steal.

What are the circumstances where entry is unlikely to be effective?

Entry us likely to be ineffective where it cannot be said on any logical basis that D has 'entered' a building, for ecample where D sticks his fingers through the letterbox.

Always think practically about the meaning of entry.

What are the distinguishing features of the two burglary offences?

The distinguishing features of s9(1)(a) and s9(1)(b) offences are in:

- the point at which the offence is committed

- the relevant ulterior offences

- what D must do regarding the relevant ulterior

What are the differences between s9(1)(a) and s9(1)(b) robbery: the point at which the offence?

s9(1)(a):

- At the point of entry, provided that D is trespasser and possesses the necessary mens rea

s9(1)(b):

- The point at which the ulterior offence is committed; D having already entered the building.

What are the differences between s9(1)(a) and s9(1)(b) robbery: the relevant ulterior motives?

s9(1)(a):

(a) stealing anything in the building or part of the building (ie theft)

(b) inflicting GBH on any person therein

(c) causing unlawful damage to the building or anything therein (ie criminal damage)

s9(1)(b):

(a) stealing anything in the building or part of the building (ie theft) or

(b) inflicting or attempting to inflict GBH on any person therein

What are the differences between s9(1)(a) and s9(1)(b) robbery: what D must do regarding the ulterior motives?

s9(1)(a):

- D must merely *intend* to commit one of the ulterior offences; D doesn't actually need to commit the offence

s9(1)(b):

- D must commit the offence, or attempt to commit one of the ulterior offence. A mere intention is not sufficient.

What is building or part of building?

- Burglary element

D must enter 'a building or part of a building'. This is not restricted to domestic buildings (ie dwellings), but is capable of extending to any structure.

What is a building?

TA does not define building, but common law has identified 'building' is an ordinary word and is a matter of 'fact and degree' as to whether a structure amounts to abuilding.

Examples of buildings include:

- dwellings

- garden sheds or outhouses

- modular buildings

- caravans and houseboats

What is part of a building?

Reference to 'part of a building' is designed to cover the circumstances where the defendant is lawfully within a building but then extends their permissions to enter another part of the building.

Essentially, you must be able to identify whether D was a trespasser at the original point of entry, or when he moved to part of a building that was allegedly closed off to him.

Terrence is found in a department store shortly before closing time. He lawfully entered the store during opening hours. He is observed by a store detective moving behind the counter and opening a till drawer.

Do you think 'behind the counter' amounts to 'part of a building' for the purposes of burglary?

These were the facts of R v Walkington [1979]. The area behind the counter was restricted to the general public and thus it was open to jury to find that Terrance had trespassed in part of the building.

What is as a trespasser?

- Burglary element

D must have entered the building or part of the building as a trespasser. In the majority of cases, there will be little difficulty proving that an individual is a trespasser, as they are likely not to have permission at that particular time.

However, there are some circumstances in which it is more difficult to prove someone is a trespassr (eg where D claims to have permission to be in a particular location). In these circumstances, jury will look at the alleged permission granted and whether they prevent D from being being classified as a trespasser.

What are examples where a D will be deemed a trespasser when there was alleged permission?

- *Permission may be granted through mistake*: In circumstances where permission to enter has been granted, but that permission is mistaken due to fraud , deception or misinformation, the D will treated as a trespasser

- *The defendant goes beyond permission granted*: in some cases, D may go beyond the permission granted to him to be in a particular location. In these circumstances, the D will be treated as a trespasser.

What is the importance of the trespasser element for burglary?

For burglary, do not overlook the requirement that D is a trespasser, do not confuse the court's position on this. D must be a trespasser *at point of entry*. Therefore, if D lawfully entered a building or part of one, but then goes to commit theft, this does not amount to burglary but will simply be theft.

In the case of withdrawn permission, an individual will only become a trespasser for purposes of burglary if they, for example, refuse to leave instead move to a different part of the building (thus entering that part of the building as a trespasser).

What is intention or recklessness to enter as a trespasser?

- Burglary element

Not only must D be a trespasser *in fact*, they must also:

- know that they are entering as a trespasser, and thus enter intentionally as a trespasser, or

- be reckless as to whether or not they are a trespasser

In both cases, D must intend to be a trespasser, or be reckless as to such *at the point of entry*.

What factors can we look at to determine whether D had intention or was reckless to trespass?

- Was forced used to gain entry to the building?

- Are there signs indicating that a particular part of a building is off limits to D?

- Was D already barred from the particular building?

Can a D be liable for burglary if the hold an honest mistaken belief that they had permission to enter?

No, D will not be liable. Such belief does not need to be reasonable, though the more unreasonable a belief is, the less likely it is to be genuinely held.

What is commission of, or intention to commit, an offence while in the building?

- Burglary element (s9(1)(a))

- The defendant must possess the necessary intention *at the point of entry*. An intention *before or after entry* is not sufficient.

- It is irrelevant whether D's intention is conditional (eg he will only steal if there is something of value worth stealing). A D will still have the intent to steal at the point of entry.

- The defendant must either intend to steal, damage property or cause GBH therein for example, if D carries the householder out of the house and then viciously attacks them, this is unlikely to amount to burglary.

What is commission of, or intention to commit, an offence while in the building?

- Burglary element (s9(1)(b))

- For s9(1)(b) a commission of criminal damage is not sufficient (though an intention to cause criminal damage at the point of entry will be sufficient for s9(1)(a)).

Summarise burglary offence: when will D have 'entered' a building?

Entry is an ordinary word, requiring some form of 'effective' entry. D need not be wholly within a building or part of a building (part of his body is sufficient) and D need not be in a position that would allow him to commit an offence.

Summarise theft offence: what is 'building' or part of a 'building'?

A building is an ordinary word referring to a structure with a degree of permanence. Part of a building refers to an area within a building that is restricted and not open to D.

Summarise theft offence: when will D be a 'trespasser'?

A trespasser is an individual who has entered a building or part of a building without permission to do so. Entry as a trespasser must be deliberate and D must know that he is a trespasser, or be reckless as to whether he is or not.

Summarise burglary offence: what needs to happen while in the building?

Mere trespass is not sufficient, it must either be proven that, at the point of entry, D intended to steal, do unlawful damage or inflict GBH, or that D, while in the building committed or attempted to commit theft or GBH.

What is aggravated burglary?

The offence of aggravated burglary involves the use of a n *aggravating article* to commit the burglary and is covered in s10 TA.

What is an aggravating article?

An aggravating article includes a weapon, firearm, imitation firearm or explosive used in connection with the burglary.

What are the elements of aggravated burglary?

1. D commits a burglary

2. *At the time* of committing the burglary, D *has with him* an aggravating article

3. The article in question is a *firearm, imitation firearm, weapon of offence or explosive*.

What is the at the time he has with him an aggravating article?

- Aggravated burglary element

This requirement can be broken down into two elements:

- 'at the time' and

- 'has with him'

What is 'At the time'?

- at the time he has with him an aggravating article element

The appropriate time depends on the type of burglary alleged:

- s9(1)(a): D must have the aggravating article with him *at the point of entry*

- s9(1)(b): D must have the aggravating article with him *at the point he steals, or attempts to steal, or inflicts, or attempts to inflict GBH*

One evening, Michael forcibly enters a dwelling belonging to a married couple. Michael enters the building unarmed but soon thereafter arms himself with a knife from the kitchen. Michael proceeds up the stairs and confronts the householders, threatening them with a knife and demanding their money and jewellery.

Has Michael committed aggravated burglary?

These are the facts of R v O'Leary (1986). The CoA found that while D had entered the dwelling unarmed, the theft took place at the point that D demanded the money and the jewellery from the householders. Given that he had a knife at that point of time, he was liable for aggravating burglary.

In an alternative circumstance, where D entered a building armed with a crowbar but then discarded it prior to committing the ulterior offence, he would not be liable for aggravating burglary (but could still be liable for burglary)

What is 'Has with him'?

- at the time he has with him an aggravating article element

This not defined in the TA, but it is an ordinary phrase meaning that the D has the aggravating article within his control. D does not need to be carrying the aggravating article, nut must have it readily accessible to him. In addition, the prosecution must prove that D knew that he had the aggravating article in his possession.