Alex Brown (November 2006)

Margaret, an elderly lady, invites Helen, her next-door neighbour, to come into her house as she would like Helen to run an errand for her. While Margaret goes out of the lounge to fetch her purse from the kitchen, Helen helps herself to two chocolate liqueurs from a dish on Margaret's coffee table.

Margaret returns from the kitchen and says that she must have left her purse upstairs in her bedroom and would Helen mind fetching it for her. Whilst on the upstairs landing, Helen notices an expensive bottle of perfume in the bathroom. She goes into the bathroom to spray some on to her wrist, but then decides to take the whole bottle which she slips into her pocket.

When Helen gets back downstairs with the purse she gives it to Margaret who hand her a £20 note and asks Helen to go to the local store and buy her a few groceries. Without asking, Helen borrows Margaret's bicycle to go to the store. While at the store she sees a DVD which is expensive at £14.99 so decides to switch price labels with one priced at £9.99. In doing so, she is watched on CCTV by the Store Manager who confronts her as she is approaching the till with the DVD in her hand. Helen panics and pushes the Manager to one side in order to escape.

She goes to another store and buys the groceries but keeps £2 change, which she uses to buy herself a magazine. She returns to Margaret's house and delivers the groceries, telling her that there is no change.

Discuss the potential criminal liability of Helen for theft, burglary and robbery, together with any possible defences that she could plead.

[OCR, Jan 2003 as adapted by Dr Peter Jepson and Mrs Anna Lindley.]

The Theft Act 1968 is the statute which creates the offences of theft, burglary and robbery.  Consequently this is the act of Parliament which I will be focusing on and backing up with cases which may provide some binding precedent to discuss the possibilities of Helen’s criminal liability in this scenario.  There are five key incidences in which I feel there is an argument that Helen has committed an offence, these are; the two chocolates, the perfume, the bicycle, switching the labels of the DVD and the push on the manager and finally the £2 change.
The two chocolates
Helen helps herself to two chocolates when Margaret is out of the room.  The offence which could have been committed here is theft.  To satisfy theft Helen must have satisfied S1 of the Theft Act 1968.  There is little dispute over whether Helen appropriated the property as the cases of Gomez 1993 highlights that appropriation is assuming one of the rights of the owner, which clearly has taken place here.  Neither is there much argument over whether there was an intention to permanently deprive Margaret of the chocolates as eating the chocolates clearly illustrates that Helen did.  There is an issue over whether this action was dishonest. S2 of the Theft Act 1968 gives the definition of ‘dishonesty’ for the purposes of theft.  S2(1)b is the section which holds the most relevance to dishonesty in this instance.  It states that –
‘If he appropriates the property in the belief that he would have the others consent if the other knew of the appropriation and the circumstances of it’
This raises the issue of whether Helen believed that Margaret would mind if Helen ‘helped herself’.  As the issue of dishonesty has arisen in other cases there is also some judge made guidelines on dishonesty.  The case of R v Ghosh 1982 was appealed to the court of appeal where they gave two questions which should be asked by the jury of the defendant. –
‘Was what was done dishonest according to the ordinary standards of reasonable and honest people? Did the defendant realise what he was doing was wrong by those standards?’
Firstly there is the objective test of the jury deciding if they, as reasonable and honest people, believe that the actions of the defendant were dishonest by their own ordinary standards.  Secondly there is the subjective test of whether the defendant recognised that these actions were dishonest and still, knowingly took carried out that action.

Under S2(1)b it is possible that Helen would be found not guilty of theft of the chocolates as she probably believed that Margaret would not have allowed her to have them.  There is at least some doubt over whether Helens actions were dishonest under the Ghosh test and consequently, it is likely she would be acquitted.

The perfume
Helen goes upstairs to get Margaret’s purse for her from her bedroom when she sees the perfume in the bathroom.  She takes the perfume, after trying some, from the bathroom.  This action is covered by S9 of the Theft Act 1968 through the offence of Burglary.  Firstly it must be determined whether Helen was a trespasser when she entered the bathroom.  Helen was upstairs for the purpose for getting Margaret’s purse from her room and consequently it can be argued that when she entered the bathroom, which she had no explicit permission to enter, she was entering as a trespasser.  Although The Theft Act 1968 does not provide a definition of trespass there is a case which is relevant to this instance.  The case of Walkington 1979, in which the defendant went behind a counter at Debenhams from which he was clearly not allowed.  This was held to be trespassing by the Court of Appeal as he had entered part of a building which is sufficient for trespass under S9(1)a of the Theft Act 1968.
The elements of theft must also be satisfied.  It is clear that Helen was dishonest, appropriated Margaret’s property and had the intention to permanently deprive.  There were two acts of appropriation. The first was when Helen sprayed some on her.  This, by the definition given by lord Keith in the case of Gomez 1993 was appropriation of property as one of the rights of the owner had been assumed.  The second was to take the perfume and put it in her pocket.  Either one of these acts show an intention to permanently deprive.

There is an argument that the facts of Walkington 1979 are sufficiently different in this case and consequently that it is distinguishable.  In Walkington, the defendant entered a build of the building from which he was impliedly excluded.  It is not so clear as to whether the bathroom of someone’s house is an area from which Helen was impliedly excluded.  This point is likely to be put forward by Helens lawyer if this ever went to court. The bathroom could be seen as a communal area which Helen is actually impliedly allowed to enter. 

If this point was argued with success then there would be no conviction of burglary.  Due to there being some ambiguity over whether Helen was a trespasser when she entered the bathroom, the CPS may be more inclined to go with the charge of theft rather than burglary.  This is because theft, in this instance, is easily proved, whereas the issue of Helen being a trespasser is not so clear cut.

The bicycle
Helen clearly appropriated property belonging to another when she took the bicycle to go to the shops for Margaret.  However whether this was dishonest is disputable.  A larger issue is whether there was any intention to permanently deprive Margaret of the bike.  The question states that ‘Helen borrows Margaret’s bicycle to go to the store.’  Under S6(1) of the Theft Act 1968 borrowing can amount to theft if –
‘his intention is to treat the thing as his own to dispose of regardless of the other’s rights’

There is some dispute here over whether the taking of the bicycle could amount to theft.  All of the other elements of theft are present in this scenario.  There is nothing to suggest however that Helen would, having taken the bicycle, treat it as her own and not return it.  If Helen used the bike and returned it then there is an argument that there is no theft.  The answer to whether this is Theft would need considering of what happened to the bicycle after the appropriation.  Factors such as whether Helen returned the bike and the condition of the bicycle when she returned it would all contribute to the outcome.

Switching the Labels of the DVD and the force
Helen swaps the label on a DVD with another label showing a lower price.  When she heads towards the tills the store manager confronts her and she pushes him and runs away.  The offence concerned with these actions is Robbery.  This is now contained in S8 of the Theft Act 1968.  Firstly it must be established if swapping the price labels amounts to theft and then if the force that was used was in order to steal and immediately before or at the time of doing so.

The case of Morris 1983 has similar facts but without the use of force and can be used to help establish the whether theft has taken place.  Morris as switched the price labels for a lower price for the product he was purchasing.  He was arrested before he had gone through the tills.  His conviction for theft has upheld by the House of Lords and Lord Roskill stated 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’
Using this as precedent it is clear that Helens actions can amount to theft, the other issue is whether force was used and whether it was used immediately before or at the time of doing so and in order to steal.

The word ‘force’ is not defined within the Theft Act 1968 although the case of Dawson and James 1976 does mean that the word force is a word in ordinary use, and that it is up to the jury to decide the meaning of the word and to decide if it was used.  This means that it is difficult to predict if there has been robbery as only the jury can decide if there was appropriate force used.  It is likely however that the jury will find that there was force used upon the store manager if the judge gives any guidelines such as previous decisions.  In Dawson and James there was merely a push on the victim and the jury still found that this was a use of force.  It is impossible to say definitely whether there was forced used as it is left entirely to the jury. 

Another point of dispute is whether the force was used ‘immediately before or at the time of doing so and in order to do so.’  The force was used after the DVD was appropriated so it was certainly not ‘immediately before.’  It seems obvious on a literal interpretation of the law that the force was not used at the time of the theft.  However, there was cases which will be binding upon the court of first instance if this is heard.  The case of Hale 1979 says that the theft is an ongoing action.  This means that if the defendant uses force after they first appropriated the property it will be regarded as at the time the appropriation took place.  This case is also backed up by the case of Lockley 1995.  In Lockley the defendant took some beers from an off license and as he walked out the shopkeeper tried to stop him, the defendant pushed the shop keeper and left.  This was said to amount to robbery by the House of Lords as they ruled that the act of theft was on going.

If this principal is applied to the case of Helen then there can be little doubt that there is robbery.  The defence may argue for a literal interpretation of the law, saying that the force that was used (if the jury decide it was force) was used once the appropriation had taken place.  It can be argued that as the statute is fairly clear on the issue of when the force must take place relative to the theft and that Hale and Lockley should be overruled.

The facts of this case do not say whether the defendant ran out of the store with or without the DVD.  If Helen did run off with the DVD then it would be hard for the defence to argue that the force was not used in order to steal.  If the DVD was left behind however then there is certainly an argument that the force was not used in order to steal.  If the theft refers to the appropriation of the DVD through switching the labels then the push on the manager could be seen as a separate act. 

The £2 change
The offence which could have been committed here is the offence of theft.  S1 of the Theft Act 1968 gives the basic definition of theft.  Helen clearly was dishonest under S2 of the Theft Act 1968 and under the Ghosh test.  There is a clear appropriation of the money and the intention to permanently deprive can be seen by the way she buys a magazine with the money.  Margaret does not question the fact that there is no change as Helen says that there is none, this appropriation through deception can also be seen in the case of Lawrence 1971 where an Italian student opened his wallet to a taxi driver to take the money out for the taxi fair.  The driver took £6.50 more than was needed.  On appeal he argued that there was consent, but the Court of Appeal and the House of Lords both agreed that there was still a dishonest appropriation.  This precedent could also be used in this situation to counter any argument that Margaret agreed to the appropriation. 

Conclusion
Due to the various ways in which statutes can be interpreted and other factors such as the jury it is impossible to say what the outcome would be in a court case.  However, by looking at previous cases and examining the ratio of them the judicial precedent can show how certain actions are likely to be interpreted by the courts.  It is unlikely that some of these actions may not be investigated such as the possible theft of the two chocolates.  As there is only a small value of these it would not be practical to investigate them and prosecute someone.  In this scenario, I feel as thought Helen is guilty of theft of the perfume and the £2 change and robbery in relation to the price labels on the DVDs. 

Alex Brown (November 2006)