Property Offences Lecture
The offence of theft is set out under the s.1 of the Theft Act 1968 which provides:
(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.
1.1 Actus Reus
- Of property;
- Belonging to another.
Section 3(1) of the Theft Act 1968 defines this as:
(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.
Put simply this means acting in relation to the property as if you are the owner of said property and indeed R v Morris  3 WLR 697 confirmed that an appropriation was not just physically taking the property, but could be achieved for example by doing any act that only the owner has the right to do, for example by selling it.
Case in Focus: R v Morris  3 WLR 697
The defendant switched the price labels in supermarkets so that when they reached the checkout they were unknowingly charged a lower price than intended by the shop assistant. The defendant was charged with theft but protested the charge claiming no appropriation took place. The House of Lords held that an appropriation did not require the assumption of all of the rights of the owner, merely an adverse interference with the rights which the defendant had done when switching the labels, an act which reserved by the owner for their exclusive doing.
An appropriation will still occur where the defendant has the property with the owner’s permission but then exceeds this permission by assuming the rights of the owner, for example they have been lent a DVD and have it in their possession with the permission of the owner but then exceed the permission by deciding not to give it back or by putting it on eBay!
R v Gomez  AC 442 confirms that an appropriation can occur even when the owner of the property gives consent. This extends even to situations where the owner gifts the property to the defendant, as was confirmed in R v Hinks  UKHL 53.
Case in Focus: R v Hinks  UKHL 53
The defendant was a young lady who befriended an older man. The man was of low intelligence and very naive. Over the period of their friendship the defendant influenced him and manipulated him into withdrawing large amount of cash amounting to over £50,000 and depositing it into her account. When this was discovered the defendant was convicted of theft and it was held that the fact that she had been given the money by the defendant was no defence to her.
Section 4 of the Theft Act 1968 defines property in great depth, stating:
Property includes money and all other property, real or personal, including things in action and other intangible property.
This definition is very wide and most objects will fall within the scope of it. The incorporation of the words ‘things in action’ and ‘intangible objects’ extend the meaning of property to cover rights such as those provided by shares or copyright.
There are some quirks in the law regarding what is and is not property and accordingly the remainder of s.4 provides further explanation to cover specific examples. These are now set out as follows.
Section 4 (2) states a person cannot steal land, or things forming part of land except in the following cases:
- He has legal authority to sell or dispose of land belonging to another and he appropriates the land or something forming part of it by dealing with it in breach of the confidence in which the authority was given.
- He is not in possession of the land but appropriates anything forming part of it by removing it, causing it to be removed or even after it has been removed.
- In his capacity as a tenant on land he appropriates the whole of part of any fixture or structure let with the land.
Section 4 (3) provides:
A person who picks mushrooms, flowers, fruit and foliage from a plant growing wild on any land for his own personal, non-commercial use does not steal what he picks.
Section 4 (4) provides:
Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature or the body of a creature that is not tamed or ordinarily kept in captivity, unless it is in the possession of another person.
Case law provides further specific definitions of what is or is not property:
- Following the ruling in R v Sharp1857 Dears & Bell 160, human body will not be treated as property, unless it has been altered for scientific purposes. This was confirmed in R v Kelly and Lindsay  3 All E.R. 741
- Illegal substances will not be prevented from being classed as property meaning that a drug dealer could be a victim of theft if his drugs are taken. This was illustrated in R v Smith 1 Cr App R 30
- Information is not property. This was confirmed in Oxford v Moss (1979) 68 Cr App Rep 183 where a student accordingly could not be guilty of theft of the contents of an exam paper.
Make sure that you memorise the case law above as you will be expected to apply it if one of the things discussed has been the subject of a ruling. If you don’t identify it correctly and apply the case, you may misclassify the thing at issue and lose marks.
Even where something is obviously property, for example, a wallet, make sure you apply the relevant s4 definition nonetheless. It shows the examiner you are aware of the law and will get you easy marks.
Belonging to another
Section 5 of the Theft Act 1968 states that another person must have possession or control of the property in order for it to be considered to belong to another.
The effect of the requirement of possession or control and not simply ownership means that a defendant could be liable for the theft of his own property! This was demonstrated in R v Turner (No 2)  1 WLR 901where the defendant who had left his car at a garage for repair picked it up without paying for the repairs. As the car was in the possession and control of the garage at the time in question, the defendant was liable for the theft of his car.
Section 5(3) of the Act states that where the possession of the property is given to another with instructions to deal with it in a certain way, the ownership in the property is deemed to remain with the giver. If the receiver then deals with the property in a way which is inconsistent with this then this can amount to theft. For example, using the car in the garage from above, had the car which was left in the mechanic’s possession and control for the purposes of repair then been given to one of the mechanic’s employees this would have been inconsistent with the instructions and the mechanic would be guilty of theft.
Case in Focus: Davidge v Bennett  Crim LR 297
The defendant was given money by her flat mates in order for her to pay their shared gas bill. Rather than paying the gas bill the defendant went shopping and vacated the flat leaving the bill unpaid. The Court held that she was liable for theft as the money had been given to her on the basis of a specific instruction and she had acted inconsistently with that and not fulfilled her obligation to pay the bill.
Section 5(4)of the Act further provides that where a person receives property by mistake they have an obligation to return the property and it will remain deemed to be belonging to another. A failure to return the property in this instance will amount to theft. For example, in A-G Ref (No 1 of 1983)  QB 182 an employee received an overpayment of their wages from their employer. The realised this mistake and said nothing, which amounted to theft as the money rightly belonged to the employer.
Where property is abandoned it is deemed in law to have no owner and thus cannot be held to belong to another. R v Rostron  All ER (D) 269 held that whether property is abandoned is a question of fact for the jury to decide and property that seems abandoned may not be where the owner still retains some legal right to it.
Case in Focus: Ricketts v Basildon Magistrates  EWHC 2358
The defendant took six plastic bags containing used clothing from outside a charity shop. The defendant contested his conviction for theft argued that the items had been abandoned by their owners and had not been claimed by anyone. The Court held that although possession or interest could be taken to arise in favour of anyone in relation to the bags it did not mean that they had been abandoned. The donor intended the items as a gift to the charity and until the charity took possession and effectuated the gift the items still belonged to the donor.
Where property has been lost it will still be regarded as belonging to the owner unless the owner cannot be located by taking reasonable steps. What is reasonable will depend on the facts of each case. For example, if the defendant found a £1 coin in the street it might be reasonable for him to ask the people around if they have dropped it and nothing more, if on the other hand they found £50,000 it would be reasonable to take it to the police station even if that meant going some distance out of their way. In any such instances the finder of the property has better title than the owner of the land, that is if the owner could for any reason not be located the £50,000 would belong to the finder, even where the money was found on land belonging to someone else.
1.2 Mens Rea
- With the intention to permanently deprive
Section 2 of the Theft Act 1968 provides a negative definition of what constitutes dishonesty by setting out three situations where a defendant will not be deemed dishonest:
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
It is important to note that these are all judged subjectively and there is no requirement that the defendant’s beliefs were reasonably held.
In addition to the above guidance, s.2(2) provides that a willingness to pay for the property will not negative any dishonesty. For example, taking a mug from a colleague’s desk and leaving a £5 note to account for it would not remove the dishonesty of taking the mug.
Outside of the specific situations provided for by the Act, the courts apply a common law test set out by Lord Lane in R v Ghosh  EWCA Crim 2. The test provides a two stage assessment in determining dishonesty:
- Was the defendant dishonest by the ordinary standards of reasonable and honest people?
- Did the defendant realise that he had been dishonest by those standards?
For the most part you will usually have a statue book with you in exams and can apply the law accordingly but it is absolutely vital that you commit the Ghosh test to memory and are confident in applying it. This test will come up in relation to a number of property offences and it will become invaluable to you- it is well worth taking the time now to get it locked in!
For extra marks you could provide some critique of the test by discussing the issues with a standard of a ordinary honest person as this is very much a subjective concept and most people have different ideas of what is honest. This leaves a lot of uncertainty in convictions as there is no set rule on what any given jury will decide.
With the intention to permanently deprive
The victim need not actually be permanently deprived of their property, so long as the defendant held the intention of permanently depriving them of it.
In accordance with the wording of this element of the mens rea borrowing, even without permission, will not amount to such intention as if the defendant intended to give it back then he clearly does not intend to permanently deprive.
Section 6 of the Theft Act 1968 provides two caveats to this.
(1) A person appropriating property without intended to permanently deprive the other of it will be treated as having such intention if he treats the property as his own to dispose of. A borrowing or lending of it may amount to so treating it as such if the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
This covers situations such as taking a football ticket, going to the match and then returning it to the owner at a point in time that it has lost all value.
(2) Where a person takes the property without intention to permanently deprive then parts with the property under a condition as to its return which he may not be able to perform, this will be treated as an intention to permanently deprive.
This covers situations such as putting it up as collateral in a bet or taking it in to a pawnbrokers.
1.3 Charging and Sentencing
Theft is a triable either way offence and upon conviction the defendant is liable to 7 years imprisonment.
The offence of burglary is set out in s.9 of the Theft Act 1968. There are two offences of burglary set out under s.9. Burglary under s.9(1)(a) and burglary under s.(9)(1)(b), and a third offence of aggravated burglary set out under s.10 of the Theft Act 1968.
2.1 Section 9(1)(a)
A defendant commits burglary under this section if they enter into a building, or any part of a building, as a trespasser, with intent to either:
- steal anything in the building; or
- inflict grievous bodily harm on any person in the building; or
- do unlawful damage.
2.1.1 Actus Reus
- A building or part of a building;
- As a trespasser
Initially it was considered that entry must be substantial and effective, however the evolvement of case law in this area suggests this is no longer necessary. In R v Brown  Crim LR 212smashing a window and leaning through was sufficient for entry and further in R v Ryan  Crim LR 320the defendant’s head and right arm being inside the property whilst the defendant himself remained outside was sufficient.Furthermore, in Ryan the defendant was stuck and unable to move, which meant his entry was far from effective, however this did not prevent it from being held to have occurred.
Whether or not the defendant will be deemed to have entered the building is a question of fact the jury to decide.
A building or part of a building
The Theft Act 1968 provides no statutory definition of building and for the most part the term is quite self-explanatory, taken as the ordinary meaning of the word.
Section 9(4) of the Theft Act 1968 does provide that an inhabited vehicles or vessels will be classed as a building even where they are not inhabited at the time of the offence. For example, a caravan would be classed as such.
Case in Focus: B & S v Leathley  Crim LR 314
A lorry container was kept in a farm yard for over two years. It was affixed to sleepers and utilised as refrigeration storage. It was accordingly connected to an electricity supply in order to power the refrigeration system. It was held that for the purposes of the Theft Act 1968 the container should be considered a building.
In contrast to the Leathley ruling, Norfolk Constabulary v Seekings & Gould  Crim LR 167 held that lorry trailers being used as storage during a supermarket refurbishment that were still on wheels despite being stationary for about a year did not amount to a building. It can be suggested from these cases that a building seems require a degree of permanence.
Part of a Building
Entering part of a building covers situations where there is permission to be in the building, but only certain areas. For example, permission to be in a shop but not in the areas marked ‘staff only’, or permission to be in a restaurant but not the kitchen.
The case of R v Walkington  1WLR 1169considers that in order to constitute a part of a building it must be physically separated from the rest of the building, however there is no authority that states what this physical separation must constitute and it will be left to a considered argument on the facts of each case.
Case in Focus: R v Walkington  1WLR 1169
The defendant was shopping in Debenhams and came across an unsupervised till which was partially opened. He reached over the counter and fully opened the till but realised it was empty. He was unsuccessfully charged under s.9(1)(a) on the pretence that in reaching over the counter he had entered part of a building with intent to steal. It was held that as the counter was not physically separated from the rest of the shop it could not constitute a part of a building.
As a trespasser
This carries the same definition as for civil law trespass.
If the owner provides permission to be in the building or part of it then no trespass will occur. This was demonstrated in the case of R v Collins  3 WLR 243
Case in Focus: R v Collins  3 WLR 243
The defendant climbed up a ladder to an open window. Inside a girl was asleep on her bed, naked. Seeing this, he climbed back down the ladder and removed all of this clothes, bar his socks and climbed back up. The girl woke up and saw him at the window. In the dark, she mistakenly thought he was her boyfriend and invited him in whereupon they engaged in sexual intercourse. She then realised her mistake and panicked, screaming at him to get off. He obliged and quickly ran away. He was charged with burglary under s.9(1)(a) on the basis that he had entered her bedroom as a trespasser with the intent to commit rape. At the time rape was a qualifying offence under s.9(1)(a) and he could not be charged with the offence of rape itself as she had consented to the sexual intercourse. The charge was not upheld as although he held the intention to rape the girl he was not a trespasser as she had invited him in.
There may be instances where the defendant has permission to be in the building but exceeds this permission by doing something which they were not invited to do. For example, they may have permission to go to their office after hours to pick up something they left behind at work, but they will exceed that permission by going to your office after hours to steal a computer!
Case in Focus: R v Jones & Smith  1 WLR 672
The two defendants together went to the house belonging to one of the defendant’s father. They removed two televisions from the property and were charged with burglary. At trial, the father stated in evidence that his son had his permission to be in the house, however the defendants had exceeded that permission by stealing and were thus trespassers.
2.1.2 Mens Rea
- Intent to steal, inflict grievous bodily harm or commit criminal damage,
- At the point of entry,
- Knowing or being reckless as to trespassing.
Intent to steal, inflict grievous bodily harm or commit criminal damage
In order for this to be satisfied the mens rea for each of the three qualifying offences must be established.
Intent upon entry
Section 9(1)(a) is wholly concerned with the intent of the defendant at the point which he enters the building or part of the building as a trespasser. There is no need to prove that the intended offence was actually committed as the intention alone is sufficient.
It is vital for this section that the intention is formed at the point in time of entering the building. If a person is already inside the building when they form the intention this will be insufficient and the actus reus will not be established.
Knowing or being reckless as to trespassing
This is a straight forward element. Often the defendant will know they are a trespasser but they may also be subjectively reckless as to whether they are. If they stumble into the wrong house drunk for example, this is reckless trespassing.
2.2 Section 9(1)(b)
A person commits a burglary under this section if, having entered as a trespasser, he steals, attempts to steal anything in the building or inflict or attempts to inflict grievous bodily harm on any person therein.
Two things should be noted here:
(i) unlawful damage is excluded from this section as a qualifying offence.
(ii) The intention to commit one of the qualifying offences does not have to be held at the point of entry into the building. It can be formed by the defendant at a later point.
2.2.1 Actus Reus
- Into a building or part of a building;
- As a trespasser;
- Attempt to, or indeed does, steal or inflict grievous bodily harm.
Entry, into a building or part of a building as a trespasser
These elements carry the same definition as with the s.9(1)(a) provision.
Attempts to, or does indeed, steal or inflict grievous bodily harm
This requires the attempt or the successful completion of one of these two qualifying offences. It is therefore necessary to establish the commission of the offence itself or in relation to the attempt, that the defendant held the mens rea for the offence. In order to do this it is necessary to assess the elements of the offences set out under s.1 Theft Act 1968 (steals or attempts to steal); or s.18 and 20 Offences Against the Persons Act 1861 (inflicts or intends to inflict GBH).
You must show awareness of the definitional elements of the qualifying offences in order to properly apply them in a problem question scenario. Make sure you learn these and understand how to apply them.
2.2.2 Mens Rea
- Knowing or being reckless as to trespassing
- Holding the mens rea for either of the qualifying offences
Knowing or being reckless as to trespassing
This is applied in the same way as for the s.9(1)(a) offence.
Holding the mens rea for either of the qualifying offences
This will require establishing either:
(i) A dishonest intention to permanently deprive another of property; or
(ii) Intention to commit grievous bodily harm; or
(iii) Recklessness as to whether grievous bodily harm is committed.
2.3 Aggravated burglary
Section 10 of the Theft Act 1968 provides that a person will be guilty of aggravated burglary if he:
commits any burglary and at the time of the burglary has with him any firearm or imitation firearm, any weapon of offence or any explosive.
“firearm” includes an airgun or air pistol.
“imitation firearm” means anything which has the appearance of being a firearm, whether capable of being discharged or not.
“weapon of offence” means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.
“explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.
The point at which the weapon must be possessed for the purposes of the offence depends wholly on whether the charge is under s.9(1)(a) or s.9(1)(b):
- If the charge is under s.9(1)(a) then the possession of the weapon must be effective at the time of entry into the building or part of it as a trespasser.
- If the charge is under s.9(1)(b) then possession of the weapon need only occur at point in which the qualifying offence is committed, once inside the building.
There is no need to establish any intention to actually use the weapon.
Case in focus: R v Stones  1WLR 156
The defendant was arrested in the middle of committing a burglary. The police searched the defendant and found on his person a knife. Accordingly, he was charged with aggravated burglary. The defendant contended that he had absolutely no intention to use the weapon in the course of the burglary and merely carried it out as a habit of protection as he knew the certain people were after him that he may need to defend himself from. The Court were disinterested in this fact and it was established that possession of a weapon at the time of committing the offence is sufficient for aggravated burglary. There is no requirement of an additional mens rea as to the reason for possession.
Charging and Sentencing
The s.9 offences are triable either way and charged under the Theft Act 1968 in conjunction with the relevant sections. In relation to the s.9 offences the maximum imprisonment is 10 years which rises to 14 years in the case of a dwelling property.
The s.10 offence is indictable only and carries a maximum sentence of life imprisonment.
The sentencing guidelines were set out in R v Saw  EWCA Crim 1 and are designed to reflect the impact of the burglary rather than the value of what is taken. Accordingly, aggravating factors that will increase the sentence are set out and include things such as targeting a vulnerable victim, or targeting victims out of spite or on racial grounds
Section 8 of the Theft Act 1968 provides that,
A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
In lay terms this can be essentially described as a form of aggravated theft, or theft with force.
3.1 Actus Reus
- Steals, and;
- Immediately before or at the time of stealing and in order to steal;
- Uses or threatens force;
- Against any person
This requires the offence of theft to be satisfied in accordance with the definition provided in s.1 Theft Act 1968. Both the actus reus and mens rea must be present.
Case in Focus: R v Robinson  Crim LR 173
The defendant was owed just over £5 by a friend. He approached his friend to demand it be repaid and a fight broke out, during which a five-pound note fell out of his friend’s pocket. The defendant picked it up and pocketed it on account of the money owed to him. He was charged with robbery in relation to the sum acquired but the charge was not upheld as the defendant believed he was entitled to that £5 and thus was not dishonest as to its appropriation. Accordingly, he had not committed theft so could not be found guilty of robbery.
Immediately before or at the time of stealing
This is for the most part straight forward. The force will occur before stealing, for example say the defendant punches someone to the floor and then takes their wallet, or at the time of stealing, for example the defendant holds a necklace around a woman’s neck and then pushes her backwards so it snaps and comes off in the defendant’s hand.
Where the force comes after the theft the law is a little more complicated. For the purposes of theft, the act is complete upon the occurrence of the appropriation. Thus it would seemingly follow that with regards to robbery, using force in order to get away after the theft, for example picking up a woman’s purse from the table and then pushing her off her chair to get past and escape would be insufficient for the actus reus.
This approach however would clearly lead to some absurdities, such as the example above and would not be what parliament intended when enacting the offence. Accordingly, the case law has adopted a flexible approach whereby in R v Hale  68 Cr App R 415 appropriation was held to be a continuing act and that it is a matter for the jury to decide whether or not it has been completed.
Case in Focus: R v Hale  68 Cr App R 415
Two defendants broke into a house and stole some items, including jewellery. Having taken the items, they realised that a woman was at the house so they tied her up to ensure a safe get away. They were convicted of robbery but attempted to appeal stating that they had tied the woman up only after they had appropriated the items and thus the requirement of force to be immediately before or at the time of the theft was not satisfied. Eveleigh LJ held that to allow this appeal would negate any common sense and go against the natural and ordinary meaning of the words. He stated at paragraph 418 “the act of appropriation does not suddenly cease. It is a continuous act and it is a matter for the jury to decide whether or not the act of appropriation has finished.”
Hale was confirmed in R v Lockley  Crim LR 656 where the defendant was caught shoplifting and effectuated his escape by using force against the security guards.
And in order to steal
According to the strict wording of the provision undue force applied at the time of the theft but not in order to effectuate it would fall outside the boundaries of robbery. Similarly, if a person sets out to inflict grievous bodily harm and then opportunistically takes the victim’s possessions whilst they are out cold then they would also not be guilty of robbery.
This issue has not yet been considered in the courts but considering the approach taken in relation to the appropriation, it is likely that a similar decision could be reached in relation to whether force was applied in order to steal. What do you think? Consider this as the potential for your own analysis here could be the difference between a 2:1 and a 1st.
Force or threat of force
The Theft Act 1968 negates to provide a definition of force and the requisite level of force needed for the purposes robbery is a question of fact for the jury to decide on a case by case basis. Even very slight touching can qualify, for example in R v Dawson and James  64 Cr App R 150 a slight nudge was sufficient.
There is no requirement that the force needs to be applied directly to the person. R v Clouden  Crim LR 56 held that merely yanking a bag could suffice.
3.3 Mens Rea
The defendant must possess the mens rea for the qualifying offence of theft, that is a dishonest intention to permanently deprive another of property.
3.4 Charging and Sentencing
Robbery is an indictable only offence and carries a maximum sentence of life imprisonment.
4.0 Handling Stolen Goods
This offence is set out under s.22 of the Theft Act 1968 which provides as follows:
A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.
4.1 Actus Reus
Stolen goods are those goods that have been the subject of a theft of any kind. They are defined in s.24(2) of the Theft Act 1968 to further include:
(a) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of the thief as being the proceeds of any disposal or realisation of the whole or part of the goods stolen or of goods so representing the stolen goods; and,
(b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any part of them as being the proceeds of any disposal or realisation of the whole or part of the stolen goods handled by him or of goods so representing them.
This definition is very wide and effectively traces the goods so that any goods or profits that result from stolen goods are encapsulated.
A person completes the actus reus of handling stolen goods by undertaking any of the following acts:
- Receiving stolen goods, or;
- Arranging to receive them, or;
- Undertaking to keep, remove or dispose of the goods or realising those goods either for your own purposes or for the benefit of another; or
- Arranging or assisting with any of the above.
4.2 Mens Rea
- Knowing or believing goods to be stolen.
This carries the common law definition of dishonest set out in Ghosh.
Don’t get confused and apply s.2 of the Theft Act here as it is not relevant and you will lose marks.
Knowing or believing goods to be stolen
This is a subjective element. As per R v Hall  1 QB 496 the defendant himself must possess the knowledge or actual belief that the goods are stolen. R v Moys  79 Cr App R 72 clarifies that mere suspicion as to their status is not sufficient.
4.3 Charging and Sentencing
Handling stolen goods is a triable either way offence and carries a maximum sentence of 14 years, a higher penalty than that afforded to the offence of theft.
A good area for analysis is discussing the penalty for handling stolen goods and considering the policy reasons for setting it higher that the maximum penalty for stealing the goods themselves. There are two main points to consider here. The first is that the commercial practice of selling stolen goods that this was set out to prevent will largely be driven by bigger scale thefts such as burglaries which carry an identical penalty. The second point to consider derives from the first in that this offence is designed to prevent people from profiting from theft. In that sense, the high penalty acts as a deterrent from getting involved in any activity that will make theft profitable, thus preventing the attractiveness of committing the theft in the first instance.
5.0 Making Off Without Payment
This offence is set out under s.3 of the Theft Act 1978 which provides:
A person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.
It essentially covers situations such as in restaurants where a service is provided without payment upfront and a bill is produced upon which payment is required.
This is the Theft Act of 1978 which was enacted 10 years after the 1968 Act discussed thus far. Do not get confused with the dates when you refer to the statute in an exam!
5.1 Actus Reus
- Making off on the spot when payment is required
- Without having paid as required for goods supplied or services done
Making off on the spot when payment is required
On the spot is defined in s.3(2) of the Act as a point in time including any payment due at the time of collecting goods on which work has been done or in respect of which service has been provided.
Making off was defined in R v Brooks(1983) 76 Cr App R 66to mean departing or disappearing.
Case in Focus: Troughton v MPC  Crim LR 138
The defendant in this case attempted to get home in a taxi after a heavy night out in town. The defendant was too drunk to direct the driver to his house and in his intoxicated state eventually tried to leave the taxi before the destination had been reached. The door was locked and upon seeing the defendant try to leave the taxi drove him to the police station. The defendant could not be guilty of making off without payment as the point at which payment was due, on arriving at the destination, had not yet been reached.
Without having paid as required for goods supplied or services done
This is a simple case of failing to pay as required in return for the goods or services, and is satisfied at the point the defendant fails to provide the correct remuneration needed from him.
Goods and services that are illegal are excluded in s.3(3) of the act as qualifying matters.
5.2 Mens Rea
- Knowing the payment is due; and,
- Intending to avoid the payment
It is necessary to apply the Ghosh test to establish dishonesty
Knowing payment is due
This is a subjective element. The defendant must be aware that payment is due.
Intending to avoid payment
If the defendant was to leave to withdraw cash for example and pay at a later date, then this will be insufficient.
5.3 Charging and Sentencing
This is a triable either way offence and the defendant is liable upon conviction of a maximum 2 years imprisonment.
6.0 Criminal Damage and Arson
The Criminal Damage Act 1971 sets out three offences of criminal damage:
Section 1 (1) Simple criminal damage
Section 1 (2) Aggravated criminal
Section 1 (3) Criminal damage by arson
6.1 Simple Criminal Damage
S.1(1) Criminal Damage Act 1971 provides:
A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.
6.1.1 Actus Reus
- Destroys or damages
- Belonging to another
Destroys or damages
The statue negates to provide a definition for this, however the case of Roper v Knott  1 QB 868 clarifies that it is not necessary for the property to become totally useless, a decrease in the value will be sufficient.
If the harm done to property does not have a degree of permanence, then it is not destroyed or damaged as per the offence and no liability can arise. This is demonstrated in the case of A v R  Crim LR 689 where the defendant spat on a raincoat. As the coat was waterproof the saliva could be wiped clean off and left no stain. Accordingly, there was no destruction or damage to the property so no offence.
However, this is not to say that all temporary harm is prevented from being classified as damage. Temporary impairment or loss of use may amount to damage.
Case in Focus: R v Fiak  EWCA Crim 2381
The defendant had been held overnight in police custody. Disgruntled by his detainment the defendant acted out in protest, putting the blanket he had been given down the cell toilet and flushing it repeatedly causing the toilet to block and the cell to flood. At trial he argued that soaking a blanket in clean water and flooding a hard water resistant floor and a blanket did not constitute damage as there was only temporary harm caused to the property. The Court disagreed and held that the term damage encapsulated temporary impairment of value or usefulness. As the blanket and cell could not be used until they had been washed and dried they were damaged.
In addition to this, where expense is incurred in order to restore the property to its original state, this will constitute damage and this was demonstrated in Roe v Kingerlee  Crim LR 735 where money was spent in order to wash mud off of a wall. Further to this, the expense incurred does not have to be necessary or reasonable, for example in Hardman v Chief Constable of Avon  Crim LR 330 the council’s expense in arranging for a special cleaning process to be undertaken in order to remove water soluble substance that would have washed away naturally in the rain was sufficient to cause the harm to property to amount to damage.
The damage or destruction does not have to be caused by a positive act as an omission will suffice. This was established in R v Miller  2 AC 161.
Case in Focus: R v Miller  2 AC 161
Miller was a squatter who after a long night, fell asleep on a mattress with a lighted cigarette in his hand. The cigarette caught and set light to the mattress causing Miller to awake suddenly. He saw the fire and simply got up and left, failing to take action to put out the fire which resultantly burned down the house. He was held to have destroyed the property, despite no actual physical act undertaken on his part, merely a failure to put right the situation that had unfolded.
Section 10(1) of the Criminal Damage Act 1971 sets out that:
“property” means property of a tangible nature, whether real or personal, including money and—
(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land and;
For the purposes of this subsection “mushroom” includes any fungus and “plant” includes any shrub or tree.
Belonging to another
Section 10(2) of the Criminal Damage Act 1971 provides that property will be taken to belong to any person in law that has:
(a) the custody or control of it;
(b) any proprietary right or interest in it (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) a charge on it.
6.1.2 Mens rea
- Intention to damage property belonging to another, or;
- Being recklessness as to whether that property is damaged.
Intention to damage property belonging to another
If the defendant honestly believes that the property is their own, then they are not liable for any subsequent damage.
Case in Focus: R v Smith  QB 354
The defendant was a tenant in the landlord’s property and with his consent he purchased and installed some fittings for the flat. By law these fittings became the property of the landlord however the defendant did not know this and believed them to be his own, and accordingly removed them and took them with him when he moved. He was charged with criminal damage but the charge was not upheld as he lacked the mens rea due to the fact he honestly believed the property to be his own. Further there was no need for him to establish that his belief of ownership was reasonable. It was sufficient that it was honestly held.
The correct approach to this in relation to criminal damage is to apply the test set out by Lord Bingham at paragraph 41 of R v G and R  WLR, in which he stated:
"A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to: (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."
Practice applying this test and make sure you understand it. Note the subjectivity that it provides which takes into account the actual knowledge of the defendant so that there must be a risk which the defendant has identified. The reasoning behind this was that Lord Bingham in R v G and R considered that stupidity on behalf of the defendant should not lead to his criminal culpability.
6.2 Aggravated Criminal Damage
Section 2 of the Criminal Damage Act 1971 provides that:
A person who without lawful excuse destroys or damages any property, whether belonging to himself or another
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
In simple terms, aggravated criminal damage occurs where the offence of criminal damage set out above has been completed, but there is an additional element present in that the destruction or damage results in an endangerment of life.
6.2.1 Actus Reus
- Destroys or damages and property
- Endangers life
Destroys or damages and property
Note here that for the purposes of the s.2 offence, any property is sufficient and not only property which belongs to another, thus a person can be liable here for the destruction or damaging of their own property.
The test for this is set out in R v Sangha  2 All ER 385 and it is to ask whether an ordinary prudent bystander would, at the time perceive an obvious risk that property would be damaged and life would thereby be endangered. There is therefore no requirement that a particular life is in fact endangered a general risk is sufficient.
Any endangerment must occur as a result of the destruction of or damage to the property. This was demonstrated in R v Steer  1 AC 111where the defendant was charged with aggravated criminal damage having fired a gun through the windows and doors of a house. The charge was not upheld as the endangerment of life did not come from the smashing of the windows but from the firing of the gun. This ruling was confirmed in R v Wenton  EWCA Crim 2361where smashing a window and throwing a petrol bomb was not aggravated criminal damage as the bomb endangered life and not the damage to the windows.
6.2.2 Mens Rea
- Intention or recklessness as to the destroying or damaging of property, and;
- Intention or recklessness as to the endangering of life.
Whether or not the defendant is reckless should be established in accordance with the R v G and R test.
6.3 Criminal Damage by Arson
Where the destruction or damage to property under either s.1(1) or S.1(2) Criminal Damage Act 1971 arises through fire, the defendant will also be liable under s.1(3) of criminal damage by arson, or as it is commonly referred to, arson.
6.4 Lawful excuse
Section 5(2) establishes sets out a defence of lawful excuse which can arise in two circumstances.
(i) Section 5(2)(a) belief in consent of the owner
(ii) Section 5(2)(b) belief that property was in immediate need of protection
Section 5(3) clarifies that these are to be assessed subjectively and the case of Jaggard v Dickinson  1 QB 527 has established that even a drunken incorrect belief will suffice
6.5 Charging and Sentencing
The offence is triable either way and the maximum for all three offences is 10 years which raise to life imprisonment in relation to aggravated criminal damage and criminal damage by arson.
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