Theft Problem question

Written answer by Nina Craig (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.]

……………….

I intend to discuss the potential criminal liability of Helen for, Theft, Burglary and Robbery, together with any possible defences that she could plead.

The first charge that Helen will face is in regard to the two chocolate liqueurs, that she took from a dish on Margaret’s coffee table (when Margaret was absent from the room.) As she ‘helped herself’ to two chocolates, she has clearly appropriated property belonging to another and therefore this incident relates to theft. As Helen has appropriated property belonging to another, she has in this instance, clearly completed the actus reus for theft, as she has treated the property as her own. However, in order for her to be found guilty of this offence, it must also be proved that she had the necessary mens rea for theft. This means that Helen must have dishonestly appropriated property belonging to another, with the intention to permanently deprive the other of it. Therefore, it must be proved that her actions were dishonest. The act does not give a definition as to what is meant by dishonest, however in order to determine this, both parts of the Ghost Test (1982) (established in the case of Ghosh (1982,) the leading case on dishonesty) must apply. The test is as follows;

1) Was what was done dishonest according to ordinary standards of reasonable and honest people? (Objective)

2) Did the defendant realise that what he/she was doing was dishonest by those standards? (Subjective)   

In order for Helen’s case to be better understood it is necessary to look at the definition of Theft under S 1 of the Theft Act 1968, which is as follows; “A person is guilty of theft if he dishonestly appropriates property belonging to another, with the intention to permanently deprive the other of it.” Section 3 (1) of the theft act explains appropriation as “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 and without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.”
  Whether the appropriation was done dishonestly is not so easy to establish. For example, Helen may have believed that Margaret had placed the chocolates on the coffee table for guests, as if she had not wished for visitors to eat them, it is likely that she would have kept them in a more discreet place. Therefore, Helen could argue that she did not dishonestly appropriate the chocolates, as she believed that she was entitled to them. When relating dishonestly specifically to theft, there are certain situations when a persons behaviour will not be considered dishonest and one of these examples is outlined in section 2 (1)(b) of the Theft Act 1968.  In summary it states that a person will not be considered dishonest if they take property, believing that the owner would have consented, had they known about it and the circumstances in which the appropriation took place. Therefore, reinforcing the point that this is extremely likely to have been the case in Helen’s situation.  

The perfume
Helen would without a doubt be held criminally liable in relation to theft of the perfume, (which she stole from the upstairs bathroom in Margaret’s house) as she dishonestly appropriated property, with the intention of permanently depriving the owner.
  However, when taking into account the definite theft of the perfume and the circumstances in which the theft occurred, it is possible that Helen will face the more serious charge of burglary, as she was invited into the house to run an errand for an elderly lady, not to steal items. Therefore, it could be argued that she exceeded her permission to be there.
Under section 9(1)(a) and 9(1)(b) of the Theft Act 1968 the two definitions of burglary are as follows;
Section 9(1)(a) states; “A person is guilty of burglary if he enters any building or part of a building as a trespasser, with the intent to steal, inflict GBH, or do unlawful damage to the building or anything in it.” 

Section 9(1)(b) states a person is guilty of burglary if “Having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.”
  A case with similar principles is that of Smith and Jones (1976). In this case, Smith and his friend Jones went to Smith’s father’s house in the middle of the night and took two television sets without the father’s knowledge or permission. They were both found guilty of burglary, despite the father stating that his son had unreserved permission to enter his house, hence he could never be a trespasser. However, their convictions were upheld. This case established that if a person has permission to enter a building, but then goes beyond that permission, they can for the purpose of burglary be considered a trespasser.
  Therefore, in the above case the defendant was given permission to enter the house for normal domestic purposes, but not to enter in the middle of the night to steal.    The same as Helen was given permission to go upstairs to Margaret’s bedroom, as instructed to fetch her purse, but not to enter the bathroom in order to steal perfume. She could argue that she did not enter the bathroom with the intention to steal, however she would still have deprived Margaret of the perfume that she intended to use (her reason for entering the bathroom). In addition, in order to be found guilty under section 9 (1)(b) of the Theft Act 1968, a person does not need to have intended to steal, but only to have carried out the act, therefore Helen will have little defence if this argument were to appear in court.
  As Helen had permission to enter the house going into the bathroom may not be considered trespass. However, the case of Walkington (1979) deals with entering ‘part of a building’ in which a person is not entitled. The facts for this case are as follows; D went behind a shop counter area (in a Debenhams department store) and looked into the open drawer of the till to see if it had any money for him to steal. The area was clearly marked by a 3 sided counter. When he saw it was empty he slammed the drawer shut and tried to leave the store. D’s conviction for burglary was upheld, as he had entered part of a building (the counter area) as a trespasser with the intention of stealing.
 Walkington had permission to enter the building as a customer, but exceeded his rights by going behind the counter. A counter is for the use of staff, therefore he was not permitted to be there. Similarly, as stated Helen had permission to enter the bedroom upstairs, but not the bathroom.

Despite this, the case of Collins (1972), established that conviction for entering a premises was not possible, unless the person entering did so knowing he was a trespasser, or was reckless as to whether or not he was a trespasser. In this case defendant saw an open window and climbed a ladder to look in. He saw a naked girl asleep in bed. He went back down the ladder, took off all of his clothes except for his socks and climbed back up the ladder. As he was on the window sill outside the room, she woke up, thought it was her boyfriend and helped him into the room where they had sex. The Court of Appeal quashed his conviction, as the girl invited him in, therefore there was no evidence that he was a trespasser. Consequently, Helen could argue that she was unaware she was trespassing and did not really act recklessly, as she genuinely believed she was entitled to enter all rooms, due to the fact that she was not told otherwise by Margaret. However, this case refers to the building in question as a whole, as opposed to part of a building, which is what needs to be dealt with in this situation.

Borrowing of the bicycle

The main word to focus on here is borrow. As Helen only intended to borrow the bicycle, there was no intention to permanently deprive the other of it and it is likely that she believed Margaret would have consented to her using it, especially considering she was going to the shop in order to buy her groceries. Therefore, Helen is likely to have had a genuine belief that Margaret would not have objected to her using the bike, as she had every intention of returning it.
  It may have been more courteous if she had asked to borrow the bicycle, however I do not believe that this situation will result in Helen facing criminal charges. Section 2 (1)(b) deals with situations such as these and it states, as already mentioned, that if the defendant believed the owner would have given consent if they other knew of the appropriation and the circumstances of it, their actions would not be considered dishonest.

The law on this point
Section 6 of the Theft Act 1968 states that borrowing does not amount to theft, unless it is for a period of time and in circumstances making it equivalent to an outright taking or disposal. A case that focuses on this point is Lloyd 1985, which held that the above statement meant borrowing the property and keeping it until the goodness, the virtue and the practical value has gone out of the article. In this case the projectionist at a local cinema gave the defendant a film that was showing at the cinema, to enable them to make an illegal copy. The defendant returned the film in time for the next showing at the cinema. His conviction for theft was quashed, as by returning the film in its original state it was not possible to prove an intention to permanently deprive. As with Helen, there is nothing to say that she did not return the bike in its original state and as a result has shown no intention to permanently deprive.

DVD and the switching of labels, (Theft amounting to robbery)
Again Helen could potentially be criminally liable for theft, as she has again appropriated property and intended to permanently deprive the shop of £4.99, by switching the price label on a DVD (that she wished to purchase) with a lower price label.
A theft case with similar facts is Morris (1883).  In this case the defendant switched the price labels of two items on the shelf in a supermarket. He had put one of the items, (which now had a lower price tag on it) into a basket and taken the item to the check-out. Subsequently, he was arrested before he had the opportunity to go through the check-out. His conviction for theft was upheld, despite the fact that he had not yet paid for the item, or left the store with it. Lord Roskill in the House of Lords stated;
“It is enough for the prosecution, if they have proved….the assumption of any rights of the rights of the owner of the goods in question.” Therefore it was enough that the appropriation existed.

However, this incident could amount to a more serious charge of robbery, due to the fact that Helen, when confronted by the security guard, used force towards him, by pushing him to one side in order to escape. The definition of robbery is found under section 8 of the Theft Act 1968 and states; “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, uses force on any person, or puts or seeks to put any person in fear of being then and there subjected to force”
  However, there is an issue of when the force was used as it was not immediately before or at the time of stealing, hence this could be a possible defence.
However, there have been cases where theft has been considered a continuing act. For example, Hale (1979). In this case two defendants forced their way into a woman’s house, after stealing a jewellery box they tied up the victim and left (force was used after the theft was complete). They were both convicted of robbery. On appeal the defendants argued that the definition of robbery did not apply, however their convictions were upheld as it was considered sensible that force was used for the purpose of robbery. Lord Justice Eveleigh also stated that; “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 had finished.” Therefore using the principle of this case Helen could be held criminally liable.

Theft of the £2 change 
Helen used the remaining £2 left over when she had brought Margaret’s groceries, for her own benefit and brought a magazine. On return, she informed Margaret there was no change. As she tells Margaret this, she obviously has no intention of returning the money to her, consequently she could not argue that she only borrowed the money. She has treated the money as her own and has permanently deprived Margaret of her property. However, it must be proved beyond all reasonable doubt that she dishonestly appropriated the property and intended to permanently deprive. Again the Ghosh test (established by Lord Lane) will need to be applied. Therefore, if Helen argues that she genuinely believed that Margaret would have consented to her buying the magazine, she could convince the jury that what she did was not dishonest, as this would mean that the second part of the Ghosh test will not apply. However, I believe this will be a weak defence, as she has clearly lied and I believe taken advantage of someone who she is supposed to be caring for. 

Consequently, there may be a defence in these circumstances where the defendant believed that the owner would have consented to their buying the magazine, however since Helen did not inform Margaret of her purchase, this suggests that she acted dishonestly and should be found guilty of the theft of £2.   

Conclusion
In conclusion, in order to be found guilty of any offence both the actus reus and the mens rea must both be proved and in some instances, this is unlikely to be the case for Helen. However, I believe she will be held criminally liable in relation to the perfume and is likely to face a burglary charge, or at the very least be charged for the theft of this item. She is also likely to be charged with robbery for the incident in the shop, in which Helen switched the labels on a DVD and then went on to push the security guard in order to escape (when confronted by him). I believe she will also be charged with theft of the £2, which she used to buy a magazine. I do not believe that there are reasonable grounds for convicting Helen of the Theft of either the chocolates or the bicycle, as I trust it will appear clear that she did not act dishonestly in these circumstances.  

Written by Nina Craig [November 2006]