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Criminal Liability - Acts of Desperation and Malicious Intent

Karen was 17, below average intelligence and homeless. She was walking the streets in the north of England and found the nights bitterly cold. To keep warm she went to the garden of a house and saw a garden shed. She saw that the shed door was locked but the padlock was practically hanging off the door. With a slight tug she pulled the lock from the door and gained access, the wood was rotten so the screws holding the lock pulled easily out of the wood leaving some holes. After an hour or so she became very cold and decided to make a fire on the floor. Though she made a circle of bricks to keep the fire contained the fire burned through the shed's wooden floor. In the morning she left the shed and took with her an old stained and tattered dog blanket that she had found wrapped around a lawn mower. She thought it was old and that the owners would not mind if she took it to keep warm. On her way along the street she met up with an old friend, Jane. As they walked along the road they saw that bottles of milk had been left out on the doorstep by the milkman. Jane told Karen that she, should take a bottle of milk and they could at least have something to drink for breakfast. Karen agreed to take a bottle from the last house in the road. Half way along the road Jane saw old oil can with some oil left in it. She lit the oil in the can and left it against the door of a house that her ex boyfriend lived in. Jane hoped the fire would burn the door and possibly frighten her boyfriend and his new girlfriend, Simon and Eugenie, whom she hated. As the fire caught hold Karen and Jane ran off and as they passed the last house in the road Jane grabbed a bottle of milk and an envelope that was fixed to the front door and marked; "milkman. Bill payment". In the envelope was a cheque for £15 made payable to the milkman. The fire burned the property causing about £80 of damage, no one was physically injured, but Eugenie was deeply shocked and has been taking sleeping pills ever since. Jane was arrested, as she was about to hand the cheque to the bank in exchange for £15 cash while Karen was arrested a few hours later. The two have been charged with a number of criminal offences. Advise Karen and Jane as to their criminal liability, if any.

1. Identification and explanation of the relevant legal issues raised by the question:



This act contains two parts entering a building as a trespasser with the intent to steal or steals anything in the building or inflicts actual bodily harm and criminal damage. This crime amalgamates all the possible separate crimes of Karen in the shed together. This is a shed so it would not be held as severe as if Karen had entered the home. Even though Karen had no specific objective in the AGs References (No 1 & 2) [1980] QB 180 , i.e. there need not be a specific intent to steal prior to entering the building, just the belief or knowledge that the item stolen is another persons for there to be a crime of burglary. The problem with this scenario is that the item stolen is an old dog blanket and if Karen believes that it is garbage then there can be no charge of burglary; however her belief is that it is the owner’s and still takes it so an act of burglary occurs. Karen has also committed criminal damage, even though she was careful therefore resulting in the crime of burglary being upheld. Socially, this may cause some problems as the crime is very harsh because Karen is homeless and starving. It seems to indicate that Karen needs some social assistance, therefore illustrating the need for not criminal charges being laid but referral to the Local Authority. If Karen fulfils the criteria under the following and as she is still under 18, a minor a good case could be made. The criteria is as follows, which can be found in Part VII of the Housing Act 1996:

  • Homelessness or threatened homelessness
  • Eligible for assistance
  • A priority need
  • Unintentionally homeless
  • Unable to access other suitable accommodation
  • Have a local connection to the area

Therefore it is highly likely that Karen’s acts of desperation would be seen as a cry for help and social assistance would be provided. It may be difficult if Karen had intentionally become homeless, but as a minor assistance would probably be provided.


The intention of stealing a bottle of milk at the end of the road provides an important criterion of the act of theft, which is the intention to permanently deprive, mens rea. In addition there needs to be the act of obtaining the property that belongs to another, actus reus. The problem with this scenario is that there is the intention but it was Jane not Karen who stole the bottle of milk; however they both planned to commit this crime. Karen could still be charged for theft as she is a secondary to the commission of the crime, they were acting in concert therefore both equally liable for the crime as set in the case of Grundy [1989] Crim LR 502. There may again be leniency for Karen as she is homeless and starving and both these acts represent the desperate situation that she is in, where she needs help from society and her acts were out of need and not malice. The following crime will be the hinging point for this type of defence for leniency because if Karen is proven to be an accessory to the malicious crime of arson and subsequent mental harms then leniency would not be possible.


The case of arson hinges on whether Karen was acting in concert with Jane. This is very shaky as Karen agrees to steal a bottle of milk; however the circumstances create a perfect opportunity for Jane to commit arson. Karen never acted with Jane, but failed to stop and report the act to the police. The case of Coney [1881] 8 QBD 534 holds that the failure to act does not point to the commission of the crime; however if one cheered on the crime then failure to act becomes positive act and ones becomes a secondary to the crime. The cases of Clarkson [1971] 3 All ER 344 point towards that if a person supports or aides the criminal after the crime, with knowledge, then the failure to act becomes a positive act and then the individual is guilty as a secondary. Failure to act only becomes criminal when there is a duty owed or an authority is exercise, e.g. employer and employee (Tuck v Robson [1970] 1 All ER 1171). Therefore the question arises if Karen running away from Jane equates to positively aiding Jane. If it does then Karen is classed as a secondary to the crime; however it is highly unlikely such an act is aiding Jane in the commission of the arson. As the cases reveal that failure to act, unless a duty to or authority is present, cannot equate to the commission of the crime. Therefore there would need to be an act of concert, such as planning the crime, aiding in the crime or covering up the crime as set in the case of Grundy.



Arson is classed as a type of criminal damage but this is a specific offence within the Criminal Damage Act s 1(3). This is a very serious crime and is subject to the maximum penalty of life imprisonment. Criminal Damage in its aggravated form s 1(2) to be subject to the maximum penalty it is imperative to show that the damage and destruction caused danger to life, not that the damage and destruction resulted from the act of damage and destruction. Arson is different because it is presumed that the lighting of fire automatically endangers life, but the danger to life is from the destruction of property. If the harm to life was from the flaming firebrand it is not arson but assault; however if threat to life occurs when the building is on fire then it is arson. As the intention of Jane was to harm her ex-boyfriend and his new girlfriend where the house was set on fire without the knowledge that either party were in the home, which is a reckless act and would cause the danger to life unless the fire was specifically set knowing that no-one was in and no-one would get hurt. According to the cases of Steer [1988] AC 111 and Asquith [1995] 1 Cr App R 492 this would be a case of arson that cause threat to life, even though no-one was hurt. This is a serious offence and in respect to her circumstance of hunger and homelessness it is very unlikely that any leniency will occur. Also it is most important to point out at no point was Karen part of Jane’s plan and it is very unlikely that Karen would be criminally liable for the act.


The intention of stealing a bottle of milk at the end of the road provides an important criterion of the act of theft, which is the intention to permanently deprive, mens rea. In addition there needs to be the act of obtaining the property that belongs to another, actus reus. The actual commission of the crime was by Jane therefore she could still be charged for theft. As she not only had the intention to steal, she also committed the action that deprived someone of their property. In addition she took a cheque that was for the milkman in taking this cheque and then trying to cash it means that under the theft laws Jane was also defrauding the bank account holder and the milkman, which may cause the bank to lose money through her misrepresentation. In effect Jane has committed an act of fraud; whereby she knew that the money she was taking was under false pretences. It must be shown that Jane obtained the cheque through dishonest means, i.e. theft. It must be shown that Jane’s false representation was aimed to deceive the bank into cashing the cheque in favour of Jane (Collis Smith [1971] Crim LR 719; Coady [1996] Crim LR 518). However, with the crime of fraid there are certain defences, which do not apply for example if the cheque was given to Jane from the bank account holder by the mistaken belief of identity and to this conclusion from his own sources or erroneous act, belief or does not act of the false statement because he does not hear or read it (Roebuck [1856] Dears & B 24;Attwood v Small (1838) 6 Cl & Fin 232; Smith v Chadwick (1884) 9 App Cas 187; Miller [1992] Crim LR 744). If any of the scenarios of defence has occurred then Jane is not guilty of obtaining by deception but may be guilty of attempting to obtain by deception (Roebuck (1856) Dears & B 24). In order to prove that Jane is guilty of obtaining by deception then it must be proven by the prosecutor that the act of Jane in the bank was to obtain cashing of the cheque via deception i.e. Jane was going to pass herself off as the milkman or appropriate person to cash the cheque. It is usually hard for the prosecution to prove deception; however the circumstances which this deception occurred in will make it much easier because the cheque was obtained via out and out theft. In the first instance one needs to understand the statutory meaning of deception which is as follows:

Deception means any deception (whether deliberate or reckless) by words or conduct as to fact or as to law, including a deception as to the present intentions of using the deception or any other person.[1]

In this chain of events the act of deception will be easier to prove as Jane was caught trying to cash the cheque in the bank, which means that Jane was trying to pass herself off as the correct bearer of the cheque. Karen may be guilty as a secondary for the theft of the milk; it is highly unlikely she would be guilty as a secondary for the fraudulent deception of Jane because she was no party to these actions and her intention was to steal a bottle of milk and no more.


It is likely that Karen, whose acts are out of desperation, would be aided because her acts are purely for survival and the items that were taken were of no real monetary value. This does not seem to follow criminal legal principles; however the movement in social assistance acts such as providing housing seems to indicate this move. On the other hand, Jane’s acts were serious and malicious and surpassed the needs of survival and if found guilty the proper legal principles would apply.



Herring, 2004, Family Law Longman

Hoggett, 2002, The Family, Law and Society, LexisNexis UK

Creton, Masson & Bailey-Harris, 2003, Principles of Family Law, Sweet & Maxwell


Gane C H W & Stoddart C N, Casebook on Scottish Criminal Law, (3rd edition W Green 2000)

Gough, 2000, Surviving without Majewski Crim LR 719

Jefferson, Criminal Law (Fifth Edition, Longman, 2001)

Jones T H & Christie M A, Criminal Law, (2nd edition W Green 1996)

TH Jones, (1989) Temporary Appropriation as Theft, 34 JLSS 343

McCall Smith R AA & Sheldon D, Scots Criminal Law, (2nd edition Butterworths 1997)


[1] Theft Act 1968 15(4)

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