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5.2 Property Offences Lecture

1.0 Theft

The offence is set out under the s.1 of the Theft Act 1968.

1.1 Actus Reus

  • Appropriation;
  • Of property;
  • Belonging to another.

Appropriation

Section 3(1) of the Theft Act 1968 defines this.

Property

Section 4 defines property.

Belonging to another

Section 5 states that another person must have possession or control of the property 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!

Section 5(3) 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.

1.2 Mens Rea

  • Dishonesty
  • With the intention to permanently deprive

Dishonesty

Section 2 provides a negative definition of what constitutes dishonesty.

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.

Outside of the specific situations provided for by the Act, the courts apply a common law test.

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.

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 provides two caveats to this.

1.3 Charging and Sentencing

Theft is a triable either way offence, punishable by up to 7 years imprisonment.

2.0 Burglary

The offence of burglary is set out in s.9 of the Theft Act 1968.

2.1 Section 9(1)(a)

A defendant commits burglary under this section if they enter 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

  • Enters;
  • A building or part of a building;
  • As a trespasser

Enters

It was considered that entry must be substantial and effective, however the evolvement of case law suggests this is no longer necessary.

A building or part of a building

  • Building

The Theft Act 1968 provides no statutory definition of building.

Section 9(4) does provide that an inhabited vehicles or vessels will be classed as a building.

  • Part of a Building

Entering part of a building covers situations where there is permission to be in the building, but only certain areas.

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.

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.

It is vital for this section that the intention is formed at the point in time of entering the building.

Knowing or being reckless as to trespassing

Often the defendant will know they are a trespasser but they may also be subjectively reckless as to whether they are.

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.

2.2.1 Actus Reus

  • Entry
  • 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.

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 provides when a person will be guilty of aggravated burglary.

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).

Charging and Sentencing

The s.9 offences are triable either way. 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.

3.0 Robbery

Section 8 of the Theft Act 1968 provides when a person is guilty of robbery.

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

Steals

This requires the offence of theft to be satisfied in accordance with the definition provided in s.1.

Immediately before or at the time of stealing

The case law has adopted a flexible approach under this element.

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.

Force or threat of force

The Act negates to provide a definition of force and the requisite level of force needed for the purposes robbery. Even very slight touching can qualify.

There is no requirement that the force needs to be applied directly to the person.

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 with a maximum sentence of life imprisonment.

4.0 Handling Stolen Goods

This offence is set out under s.22 of the Theft Act 1968.

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).

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

  • Dishonesty
  • Knowing or believing goods to be stolen.

Dishonesty

This carries the common law definition of dishonest set out in Ghosh.

Knowing or believing goods to be stolen

This is a subjective element.

4.3 Charging and Sentencing

Handling stolen goods is a triable either way offence with a maximum sentence of 14 years.

5.0 Making Off Without Payment

This offence is set out under s.3 of the Theft Act 1978.

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).

Making off was defined in R v Brooks(1983) 76 Cr App R 66.

Without having paid as required for goods supplied or services done.

Includes 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).

5.2 Mens Rea

  • Dishonestly
  • Knowing the payment is due; and,
  • Intending to avoid the payment

Dishonestly

It is necessary to apply the Ghoshtest to establish dishonesty

Knowing payment is due

This is a subjective element.

Intending to avoid payment

If the defendant was to leave and pay at a later date, then this will be insufficient.

5.3 Charging and Sentencing

This is a triable either way offence, maximum 2 years imprisonment.

6.0 Criminal Damage and Arson

The Criminal Damage Act 1971 sets out three offences of criminal damage.

6.1 Simple Criminal Damage

Defined under s.1(1) Criminal Damage Act 1971.

7.1.1 Actus Reus

  • Destroys or damages
  • Property
  • Belonging to another

Destroys or damages

The statue negates to provide a definition for this.

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.

Property

Defined under section 10(1) of the Criminal Damage Act 1971.

Belonging to another

Section 10(2) of the Criminal Damage Act 1971 provides when property will be taken to belong to any person in law.

7.1.2 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.

Recklessness

The correct approach to this in relation to criminal damage is to apply the test set out by Lord Bingham.

7.2 Aggravated Criminal Damage

Defined under section 2 of the Criminal Damage Act 1971.

Aggravated criminal damage occurs where the offence of criminal damage has been completed, but there is an additional element present in that the destruction or damage results in an endangerment of life.

7.2.1 Actus Reus

  • Destroys or damages any property
  • Endangers life

Destroys or damages any property

Note here that for the purposes of the s.2 offence, any property is sufficient and not only property which belongs to another.

Endangers life

The test for this is set out in R v Sangha [1988] 2 All ER 385.

Any endangerment must occur as a result of the destruction of or damage to the property.

7.2.2 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 Rtest.

7.3 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.

7.4 Lawful excuse

Section 5(2) establishes sets out a defence of lawful excuse which can arise in two circumstances.

Section 5(3) clarifies that these are to be assessed subjectively.

7.5 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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