Property Offences: Theft, Robbery, and Burglary Lecture Notes

The Theft Act $1968$ and the Definition of Theft

The lecture focuses on property offences, primarily those created by the Theft Act $1968$. The primary offence is theft, defined in Section $1(1)$.

• Verbatim Definition: "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it."
• Expansion of Definitions: Sections $2$ to $6$ of the Act elaborate on the key elements within the Section $1(1)$ definition.
• Actus Reus Elements:
  • Appropriation (Section $3$).
  • Property (Section $4$).
  • Belonging to another (Section $5$).
• Mens Rea Elements:
  • Dishonesty (Section $2$).
  • Intention to permanently deprive (Section $6$).

Appropriation: Section $3(1)$

Appropriation is defined as "any assumption by a person the rights of an owner amount to an appropriation."

• Statutory Scope: This includes cases where the person came by the property innocently or not, involving any later assumption of a right by keeping it or dealing with it as the owner.
• Rights of an Owner: These are wide-ranging and include the right to touch, eat, sell, use, possess, hire, lend, or destroy the property.
• The Morris Principle: In the case of Crown against Morris ($1993$), the defendant switched price labels in a supermarket to pay a lower price. The court held that appropriation requires an assumption of any single right of an owner (in this case, the right to fix the sale price), not all rights. The theft occurs the moment labels are switched, even if the goods are later abandoned.
• Pranks and Protests: For an appropriation to constitute a completed theft, the accompanying mens rea (dishonesty and intent to permanently deprive) must be present. Moving products in a supermarket as a prank would lack this mens rea.

Consent and Authorization in Appropriation

A major question in law is whether appropriation requires an unauthorized act or can occur with the owner's consent.

• Case: Lorentz ($1972$): A taxi driver took $\pounds 6$ from an Italian passenger's open wallet (after an initial $\pounds 1$ was paid) for a journey where the correct fare was $\pounds 0.52$. Although the passenger permitted it, the court held theft occurred because theft does not require an unauthorized act.
• Case: Gomez ($1993$): An assistant manager accepted stolen building society cheques for goods after lying to his manager that they were as good as cash. The House of Lords, by a majority of $4$ to $1$, ruled that an appropriation can occur even with the owner's consent, following the ratio in Lorentz.
• Case: Hincks ($2001$): The defendant influenced a man of limited intelligence to give her large sums of money. The House of Lords dismissed the appeal ($3$ to $2$ majority), governing that a valid civil gift can still be an appropriation for criminal law if the defendant is dishonest.
• Neutral Concept: Appropriation is now considered a neutral concept; liability is determined by the defendant's mens rea rather than the manifest criminality of the act itself.

Later Appropriation and Examples

Section $3(1)$ extends appropriation to situations where a defendant initially acquires property without stealing but later assumes an owner's rights dishonestly.

• Examples of Later Appropriation:
  • A defendant borrows a flatmate's property but later dishonestly decides to keep it.
  • A defendant finds a gold watch, later discovers the owner, but keeps it anyway.
  • A defendant realizes a shopkeeper gave them too much change and decides to keep the overpayment.

Property: Section $4(1)$

Property is defined broadly: "Property includes money and all other property, real or personal, including things in action and other intangible property."

• Real Property (Land): Generally cannot be stolen except in three cases (Section $4(2)$):
  • $A$: A trustee or person authorized by power of liquidator sells or disposes of land in breach of trust.
  • $B$: A person not in possession of the land appropriates things forming part of the land (e.g., digging up soil or grazing cattle on another's field).
  • $C$: A tenant appropriates a fixture (e.g., removing a Victorian fireplace or light fitting).
• Personal Property: Includes all items that are not land, such as jewelry, vehicles, and illegal items (e.g., controlled drugs).
• Things in Action: A category of intangible property representing a right to sue, such as credit balances in bank accounts.
  • Case: Crown against Kohn: Dishonestly causing the debiting of a person's account is the theft of the "thing in action."
• Other Intangible Property: Includes items like export quotas (Attorney General of Hong Kong and Chennai).
• Exclusions:
  • Electricity: Excluded from "property" but covered under Section $13$ as the separate offence of "abstracting electricity."
  • Confidential Information: In Oxford and Moss, a student who read an exam paper and returned it was not guilty of theft because information is not property.
  • Wild Growth: Picking wild mushrooms, flowers, or fruit is generally excluded unless done for commercial sale (Section $4(3)$).
  • Wild Creatures: Wild creatures cannot be stolen unless they have been reduced into possession (Section $4(4)$).

Belonging to Another: Section $5$

Property belongs to anyone having possession, control, or a proprietary interest in it.

• Case: Turner: The defendant was convicted of stealing his own car because he used spare keys to take it from a garage that had possession and control of it for repairs.
• Possession vs. Control: Possession requires knowledge, but control does not. Case: Woodman held that a factory owner was in control of abandoned scrap metal on his site even though he was unaware it was there.
• Legal Entities: Directors can steal from their own company because the company is a separate legal entity.
• Special Cases (Section $5(3)$): Where property is received under an obligation to deal with it in a particular way, it still belongs to the donor in the eyes of criminal law.
  • Case: Davidge and Brian: Money given for a gas bill spent on Christmas presents was theft.
  • Case: Crown against Wayne: A charity collector was liable for theft because the money collected belonged to the charity beneficiaries via a trust obligation.
• Fencing Example: If someone is paid a $\pounds 100$ deposit for labor, Section $5(3)$ does not apply. If the $\pounds 100$ is given specifically to buy fencing materials, a relevant obligation arises, and keeping the money is theft.

Mens Rea: Dishonesty

Dishonesty is not formally defined, but Section $2(1)$ provides specific instances where conduct is NOT dishonest:

1. Legal Right: Belief that they have a legal right to deprive the other of the property.
2. Consent: Belief the owner would have consented if they knew the circumstances.
3. Owner Untraceable: Belief the owner cannot be found by taking reasonable steps (applicable to found property).

The Move to an Objective Test

• The Ghosh Test ($1982$ - $2017$): Used a two-stage test (objective: was it dishonest by ordinary standards? and subjective: did the defendant realize it was dishonest by those standards?).
• Case: Ivey against Genting Casinos ($2017$): Professional gambler Phil Ivey used "edge sorting" to win $\pounds 7.7 \text{ million}$ at Punto Banco. He argued it was a legitimate technique and he wasn't dishonest.
• The Ivey/Barton Test: The Supreme Court overruled Ghosh. The test is now entirely objective (found in Barton and Boots):
  • Stage 1: What was the defendant's actual state of knowledge or belief as to the facts?
  • Stage 2: Was the defendant's conduct dishonest by the standards of ordinary decent people?
• Precedent: Lower courts, including the Court of Appeal in Patterson, have confirmed that Ivey now represents the law over Ghosh.

Mens Rea: Intention to Permanently Deprive (Section $6$)

A defendant must intend to treat the thing as their own to dispose of, regardless of the owner's rights.

• Treating as Own: Includes selling an owner's property back to them (Ellen Johnson) or pawning an item.
• Borrowing as Theft: Generally, borrowing is not theft. However, under Section $6(1)$, borrowing amounts to theft if the "goodness" or "virtue" of the property is gone upon return.
  • Case: Lloyd ($1985$): Taking films from a cinema to copy them wasn't theft because the films' value remained for screening.
  • Lord Lane's Examples of Theftuous Borrowing:
    1. Using a railway ticket for a ride and returning it when worthless.
    2. Using a season ticket for all games and returning it at the end.
    3. Using non-rechargeable batteries until depleted.
• Repaying Money: Repaying with different coins or notes still constitutes an intention to permanently deprive the owner of the original coins or notes.

Robbery: Section $8$

Robbery is an aggravated form of theft involving force or threats of force.

• Elements: All elements of theft must be proven first. If there is no theft (e.g., no dishonesty), there is no robbery.
• Force:
  • Must be against the person, not just property.
  • Case: Dawson: A nudge that makes someone lose balance can constitute force.
  • Case: P against Director of Public Prosecutions: Pickpocketing lacks the necessary force to be robbery; it is merely theft.
• Fear and Threat: Seeking to put a person in fear of force suffices.
  • Case: Benson: Pointing fingers in a jacket to mimic a gun is enough to qualify as a threat of force.
• Timing: Force must occur immediately before or at the time of theft. In Hale, tying up a victim after taking jewelry was considered part of an "ongoing" theft.
• Intentional Link: The force must be used in order to steal. Accidental force or theft following an unrelated assault is not robbery (Jennings).
• Sentence: Robbery and assault with intent to rob carry a maximum sentence of life imprisonment.

Burglary: Section $9$

Burglary carries a maximum of $14$ years for dwellings and $10$ years for other buildings. Aggravated burglary (Section $10$) involves being armed with a weapon or explosive and carries up to life imprisonment.

Section $9(1)(a)$

• The Inchoate Offence: Entry into a building as a trespasser with the intent to steal, inflict GBH, or commit criminal damage.
• Liability: Liability is established at the point of entry. It is irrelevant if the defendant fails to carry out the intended crime.

Section $9(1)(b)$

• The Completed Offence: Entry into a building as a trespasser, followed by the actual commission or attempt of theft or GBH.
• Note: This section does not cover criminal damage, unlike $9(1)(a)$.

Actus Reus Common Elements

• Entry: Must be "effective."
  • Case: Collins ($1973$): Originally required entry to be "effective and substantial" (defendant was silhouetted naked in a window wearing only socks).
  • Case: Ryan ($1996$): Entry can involve just a part of the body (e.g., head and arm stuck in a window) regardless of whether the crime could be completed from that position.
• Building/Part of Building: Ordinary dictionary meaning. Includes outhouses, sheds, and semi-permanent containers. "Part of a building" covers areas restricted to the public, like a shop counter.
• Trespasser: Entry without permission or in excess of permission.
  • Case: Jones and Smith: Entering a father's house at night to steal TVs was "in excess of permission," making the defendants trespassers even though they had a general invitation to visit.

Mens Rea of Burglary

1. Trespasser Knowledge: Recklessness as to the facts that make them a trespasser.
2. Ulterior Intention: The specific intent to commit theft, GBH, or damage (for $9(1)(a)$) or the intent for the specific offence committed (for $9(1)(b)$).

Questions & Discussion

• Question regarding Forgery vs. Theft: A student asked about a defendant drawing a cheque on an overdrawn account with no overdraft facility.
• Response: If the victim is overdrawn and has no facility, there is no "property" (thing in action) in the account to steal. The act might be classified as an attempt to steal or potentially forgery, depending on the specific circumstances and context.

Closing Announcements

• This marks the final lecture with the current lecturer before handing over to John next week.
• Criminal Damage was not covered in the lecture but remains a required topic for reading via the provided slides and textbooks.