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Theft robbery and burglary
Theft, robbery and burglary are defined in the Theft Act 1968. Theft is defined in S1 of the Theft Act.
In order to establish if a crime of theft has occurred it is important to consider if the Actus reus of theft has occurred. The first item to consider is whether appropriation has taken place. Appropriation is partially defined in S3 of the Theft Act 1968. From the definition in S3(1) the words which need 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 that the rights of an owner include selling, destroying, as well as possession, lending and hiring it out. Therefore for there to be appropriation, theft must do something which assumes one of the rights of the owner. This point was shown in the case of pitman v Hehl (1977) where it held that appropriation had taken place where the defendant had sold furniture belonging to another person. Further clarification was shown in the case of morris (1983) where Lord Roskill said that: (i.e the mens rea of theft) The area which has caused problems is whether appropriation has to be without the consent of the owner. S1 of the Theft Act does not state.
The definition in S3 is very broad and hence in R v Gomez (1992) House of Lords held that it included situations where other person had consented to the appropriation if the consent was obtained by deception. Hence here it is important to note any assumption of the rights of an owner has taken place then it is “appropriation.” Further in the case of R v Hinks (2001) the House of Lords stated that there could be theft even where there was no deception and appropriation has been consented to. It was held that it was a neutral term and the important point is whether the defendant is being dishonest.
“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.” Therefore, the does not have to be an assumption of the rights, or quite often only one right will have been assumed. The other thing to show is if appropriation can take place when the item has been given to them by the owner. There is no clarification in the Theft Act 1968 that appropriation has to be without the consent of the owner. This issue was raised in the case of Gomez (1993.) The case reached to the House of Lords were clarification was made on the following points: appropriation has taken place when theft is alleged and that which is alleged to be stolen passes to the owner, but that has been obtained by false representation. They also ruled that there was no need for adverse interference with or usurpation some right of owner.
A final point to consider is whether situations where a person has given property to another without deception. This point was considered in the case of Hinks (2000), here the House of Lords decided that even though property is a valid gift there was appropriation. The situation where the law is absolutely clear is that appropriation where the defendant obtains something without stealing and then decides to keep it or sell it is within the definition of appropriation of S3(1) Theft Act 1968.
For Derek to be prosecuted under the theft Act 1968, he must have appropriated “property.” The definition of property is given in s4(1) Theft Act 1968. The definition is very comprehensive and almost anything can be stolen. Together with the above, for theft to have occurred the property must belong to another. Again the definition is very 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.
Possession or control of the item does not have to be lawful. This means that Jiten, who steals from Dillon, can be prosecuted for theft for stealing the suitcase from Dillon, even though Dillon is not the legal owner of the suitcase and items stolen.
The wide definition has led to a situation where an owner is convicted of stealing his own car. Turner (No 2) (1971.)
In woodman 1974, a company had sold all the scrap metal on its site to another company which arranged for it to be removed. However a small amount had been left on the site. Therefore there was no doubt that they were in control of the site and they took the remaining scrap metal. The conviction of theft was upheld in the Court of Appeal.
Section 5 of the Theft Act 1968 provides for situations where a person can be guilty of theft even though the property may not “belong to another.” These are situations where the defendant is acting dishonestly and has caused a loss to another or has made a gain. Following case law an appropriation has meant that it is a very wide concept band hence there is need to rely on the mens rea element of theft.
The wide definition of s3 (1) means that the mens rea element of theft must be established. The two elements of mens rea to be proved are dishonesty and intention to permanently deprive. Both of the above must be established.
When looking at dishonesty, it is when a defendant appropriates property, he did it dishonestly. The Theft Act 1968 does not define dishonesty but s12 states that it is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.
That is 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 belong i.e. to another is not to be regarded as 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 or (b) he would have the other's consent if the other knew of the appropriation and the circumstances of it or (c) the person to whom the property belongs cannot be discovered by taking reasonable steps.
Point to remember is that the three situations above do not depend on the defendants correct belief or even reasonable belief, as long as he has a genuine belief in one of the above than he is not of theft.
The leading case on what is meant by “dishonesty” is Gosh (1982.) The court of Appeal decided that the test for dishonesty was one of both elements subjective and objective. The elements are: did the defendant realise that what he was doing was dishonest by those standards and secondly was the action dishonest according to the ordinary standards of reasonable and honest people.
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 second step (subjective test) did the defendant know it was dishonest by those standards.
The second element of the mens rea and final element of theft 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 it is not so clear. S6 provides that even though a person appropriating property belonging to another 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 regardless of the others rights.
It has been stated by the Court of Appeal that “dispose” should be given that meaning as given by shorter oxford dictionary. In DPP v Lavender 1994, it was ruled that the dictionary definition of “dispose of “is to narrow as a dispose could include “dealing with” property.
Another situation which provides difficulty with s6 is people who borrow or lend. According to s6 borrowing is not theft unless it is for a personal and in circumstances making it equivalent to an outright taking or disposal.
In the case of Lyold 1985, it was held “that borrowing the property and keeping it until the goodness, the virtue, and the practical value has gone out of the article.” The basis of this would appear that it can only be theft if the intention was to permanently deprive. Therefore on this basis Derek would not be able to be convicted of theft, as he only intended to borrow the book.
Robbery is an offence which is defined in s8 of the Theft Act 1968. According to the definition given 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.
For there to be robbery 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) the Court of Appeal held again that it was a matter for the jury to decide whether or not force on any person was used. The definition of robbery makes it very clear that robbery is committed if the defendant puts or seeks to put a person in fear of force and it is not necessary for force to be applied. Just putting the victim in fear of force is sufficient.
The second element that has to be proven is that the force must be immediate either immediately before or at time of stealing. Two issues arise here: 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 here is Hale (1979.) In this case the Court of Appeal thought that the jury could have come to the decision that there was force immediately before the theft when the hand was held over the householders mouth and secondly the Court of Appeal thought that the tying up of the householder could also be force for the purpose of robbery as they held that the theft was still ongoing i.e. theft is an ongoing act and up to the jury to decide if appropriation has finished. Appropriation it is held finished when defendant was “no longer in the course of committing theft.” This was again confirmed in the case of Atakpu (1994.) The court again confirmed that 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 they must have the mens rea for theft and must also intend to use force to steal. Putting the definition of robbery it is obvious that Jiten has committed robbery and would most probably be found guilty of the same.
Prince however be guilty of burglary. 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 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 29(1)(b) what the defendant intends to do upon entry is irrelevant, but this 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 for 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.
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