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Published: Fri, 02 Feb 2018
Theft, robbery and burglary theft act
Theft, robbery and burglary are defined in the Theft Act 1968. S1 defines theft.
In order to establish if theft has occurred it is important to consider the Actus reus of theft. The first item to consider is whether “appropriation” has occurred. Appropriation is partially defined in S3 of the Theft Act 1968, which shows the words needed to be proved are “any assumption by a person of the rights of an owner amounts to appropriation.” From this definition it can be said the rights of an owner include selling, destroying, as well as possession, lending and hiring out. For there to be appropriation, one of the rights of an owner must have taken place e.g. Pitman v Hehl (1977). Further clarification was shown in the case of Morris (1983.)
Here Lord Ruskill said that: “It is enough for the prosecution if they have proved…. the assumption of any of the rights of the owner of the goods in question.” The other thing to query is if appropriation can take place when the item was given to them by the owner. There is no clarification in the Theft Act 1968 of this and the issue was raised in the case of Gomez (1992.) Where House of Lords clarified the following points: “appropriation has taken place when theft is alleged and that which is alleged to be stolen passes to the defendant with the consent of the owner, but has been obtained by false representation, “ and that “there was no need for adverse interference with or usurpation some right of owner.”
The definition in S3 is broad and hence in R v Gomez (1992) House of Lords held it included situations where the person had consented to the appropriation, despite consent is obtained by deception. It is important to note any assumption of the rights of an owner, then it is “appropriation.” Further in the case of R v Hinks (2001), House of Lords stated that there could be theft even where there was no deception and appropriation has been consented to. It held “it was a neutral term and the important point is whether the defendant is being dishonest.”
S3(1) Theft Act 1968 makes it clear that appropriation occurs where the defendant obtains something without stealing and then decides to keep it or sell it as the owner .
For Derek and Dillon to be prosecuted, they must have appropriated “property.” The definition of property is given in S4(1) Theft Act 1968. The definition is comprehensive and almost anything can be stolen. Also for theft to have occurred the property must belong to another. Again the definition is wide and can be seen that possession, control or any propriety interest is sufficient. This means that the prosecution does not have to prove legal ownership. This means that Derek and Dillon have “appropriated property without consent” i.e. theft has occurred.
However, possession or control of the item does not have to be lawful. Jiten, who steals from Dillon, can be prosecuted for theft, despite Dillon not being the legal owner of the suitcase and items stolen. Dillon has also committed the crime of Burglary.
Case law on appropriation has meant that there is a need to rely on the mens rea element of theft.
Two elements of mens rea to be proved are dishonesty and intention to permanently deprive. Both must be established.
When looking at dishonesty, did the defendant appropriate property dishonestly? The Theft Act 1968 does not define dishonesty but S1(2) states that it is immaterial whether the appropriation is made with a view to gain i.e. if all the elements of theft are present then the motive is not relevant. Section 2 also provides three situations where the defendant’s behaviour is not considered. These situations are those that provide a person’s appropriation of property belonging to another is not dishonest if he appropriates the property in the belief that: (a) has the right to deprive the other, on behalf of himself or of a third person in law (b) he would have the other’s consent if the other knew of the appropriation and the circumstances of it (c) the person to whom the property belongs cannot be discovered by taking reasonable steps.
The point to remember is that the three situations above do not depend on the defendant’s correct belief or even reasonable belief, as long as he has a genuine belief in one of the above then he is not guilty of theft.
The leading case on what is “dishonesty” is Gosh (1982.) The court of Appeal decided that the test for dishonesty was one of both elements subjective and objective.
This means that the jury is to start with the objective test: was the action dishonest by ordinary standards of reasonable and honest people? If the decision was not dishonest by those standards, then it is the end of the matter and the defendant is not guilty. However if they decide that it was dishonest then they must consider the subjective test; did the defendant know it was dishonest by those standards.
The second element of the mens rea is that there is an intention permanently to deprive the other of the property. Case law has identified situations where there is no doubt that the defendant had such an intention e.g. the case of Velumyly (1989,) or a situation when the defendant destroys property belonging to another.
S6 of the Theft Act 1968 tries to help in situation where intention is not clear. S6 provides that even though a person appropriating property does not mean permanently to lose it can be regarded as having the intention to deprive permanently, if the intention is to treat the item as his own.
On this basis Derek could escape prosecution as his intention was never to permanently deprive Sinetta but only to borrow. However the book was rare and valuable and if Derek has either sold, destroyed or taken the goodness out of the book than it is very difficult for him to escape the charge of theft.
The case of Lloyd 1985, held “that borrowing the property and keeping it until the goodness, the virtue, and the practical value has gone out of the article” is theft. The basis of this would appear that it can only be theft if the intention was to permanently deprive. Derek may not be convicted of theft, as he only intended to borrow the book. However he still stole so the action was dishonest (objective test.) But Dillon can be prosecuted for theft as he had the intention to steal.
Robbery is an offence which is defined in s8 of the Theft Act 1968. According to the definition in s8 the actus reus for robbery that need to be proved are: theft, force, putting, or seeking to put any person in fear of force. This force must be immediate i.e. before or at time of theft and it must be in order to steal.
The mens rea for robbery is the mens rea for theft and the intended use of force to steal.
All the elements for theft must be met before robbery can enter the scene. When force is used to steal, then the moment theft is completed there is robbery. The prosecution must prove force or threat of force, the amount of force can be small as in the case of Dawson and James (1976.) Here the Court of Appeal held “force” was an ordinary word and it was for the jury to decide if there had been force.
In Clouden (1987, Court of Appeal held, it was a matter for the jury to decide whether or not force on any person was used. The definition of robbery makes it clear that robbery is committed if the defendant puts or seeks to put a person in fear of force. It is not necessary for force to be applied; just putting the victim in fear of force is sufficient.
The second element to be proved is that force must be immediate either immediately before or at time of stealing. Two issues arise: how immediate does it have to be and secondly when is theft complete so that the force is not “at the time of stealing.” The leading case is Hale (1979.) The Court of Appeal thought the jury could have come to the decision that there was force immediately before the theft when the hand was held over the householder’s mouth. Secondly when tying up of the householder could be force for the purpose of robbery as they held that theft was still ongoing. Appropriation is finished when the defendant was “no longer in the course of committing theft.” This was confirmed in the case of Atakpu (1994.) The court confirmed it was up to the jury to determine in each case when appropriation has ended and that appropriation may last as long as the thief can sensibly be regarded as in the act of stealing. Also the force or threats must be in order to steal.
The mens rea for robbery is that as for theft and must also intend to use force to steal. From the definition of robbery it is obvious that Jiten has committed robbery and would most probably be found guilty of the same.
Jiten can be prosecuted here under the S8 as he stole from Dillon and used force i.e. his intention was to steal with force.
S9 of the Theft Act 1968 provides for burglary to be committed in two ways. A person may be guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm, rape or do unlawful damage to the building or anything in it (s9 (1)(a) of the Theft Act 1968.)
S9 (1)(b) is when a person having entered a building or part of a building as a trespasser then steals or attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm on any person in the building. Under s9 have three common elements: entry, of a building or part of a building, as a trespasser. The difference between s9 (1)(a) and s9(1)(b) is that for s9(1)(a) the defendant must intend to do one of the four listed offences at time of entering but there is no need for the offences to take place or even be attempted. Under S9(1)(b) what the defendant intends to do upon entry is irrelevant, but the prosecution must prove that he actually committed or attempted to commit theft or grievous bodily harm.
Although Prince may have permission to enter the girlfriend’s house it can be argued that he went beyond his given permission. This was shown in the case Smith and Jones (1976.) The court of Appeal ruled that “a person is a trespasser for the purpose of s9(1)(b) if he enters premises of another knowing that he is entering in excess of the permission that he has given to him, or being reckless whether he is entering in excess of that permission.”
The mens rea of burglary are; entering as a trespasser and the ulterior offence. To prove both S9 (1)(a) and S9(1)(b), the defendant must know, or be subjectively reckless as to whether he is trespassing and in addition for S9(1)(a) he must have the intention to commit one of the four offences at the time of entering the building.
For S9(1)(b) the defendant must have the mens rea for theft or grievous bodily harm when committing (or attempting to commit) the actus reus of one of the four offences.
Prince could certainly be found guilty of burglary under S9(1)(a) of the Theft Act 1968. As although he may not be an actually trespasser he certainly intended to go beyond his permission and he certainly intended to cause criminal damage. The only point of question is the fact that the car was not there and he walked away. It could be argued that Prince only had conditional intention as in the case of Walkington and the fact that the car was not there he walked away without causing any other damage.
Dillon could also be charged with burglary under S9 (1)(a) as he entered the TV studios with the intention to steal. The intention was there as he came prepared with a suitcase and he commits theft.
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