Hannah Wilson (April 2005)
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.
She 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 together with any possible defences that she could plead.
[OCR, Jan 2003]
Introduction
From the facts of this case it is clear that Helen will face liability for a number of offences. In particular theft of two chocolate liqueurs, burglary with the theft of the perfume, theft of the £2 change, and the theft of Margaret’s bicycle. However, Helen may be able to avoid these charges if any of the mens rea or actus reus elements can be disproved. She may also be able to rely on a number of defences, such as a belief in the others consent or the fact that she was only borrowing the bike. I will now consider each of these points in greater detail, using cases and statute to support my argument.
Theft
The offence of Theft is contained in the Theft Act 1968, and section 1 of this provides that ‘a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’. Each of the elements within this statement is further defined in sections 2-6 of the Theft Act 1968. The actus reus words of theft are ‘appropriation’, ‘property’ and ‘belonging to another’. The mens rea words are ‘dishonestly’ and ‘an intention to permanently deprive the owner’. For Helen to be guilty of theft she must fulfil each of these requirements.
Theft of the two chocolate liqueurs
The facts of the case state that Helen helps herself to two chocolate liqueurs from a dish on Margaret’s coffee table whilst Margaret is out of the room. Helen has clearly fulfilled the actus reus of theft here, as she has appropriated property belonging to another. However, the issue here is whether Helen has the mens rea, or guilty mind. To fulfil this element she must appropriate the property dishonestly. There is doubt here, as it is possible for Helen to claim that her actions were not in fact dishonest. In the Theft Act 1968 section 2(1) three situations are established in which D would not be acting dishonestly. The second one of these situations (s.2(1)(b)) would possibly apply to Helen and Margaret; this is that D held a belief that they would have the other’s consent if the other knew of the appropriation and the circumstances of the appropriation. It is very likely that Helen would have believed this, and it is not entirely irrational for her to think this either, as Margaret did invite her into her house as a friend, and as the chocolates were placed in a dish this is suggestive that they are for the consumption of guests or people in the house. Helen would be able to rely on this section of the Act as a defence, so I believe that it is unlikely she would be successfully prosecuted for the theft of the chocolates.
Burglary and theft of the perfume
Helen could face prosecution for burglary, which is held under section 9 of the Theft Act 1968. This charge would arise as a result of Helen entering the bathroom and spraying the perfume on her wrist, and then taking the whole bottle. The Theft Act gives the actus reus of burglary as ‘entering a building or part of a building as a trespasser’. There are a number of issues here which need clarification in Helen’s case, for example did she enter as a trespasser? Firstly, I will consider ‘entry’. The case of Collins (1973) established that the defendants’ entry must be ‘effective and substantial’. However, this test was widened by the case of Brown (1985) which overruled Collins, stating that the entry must only be ‘effective’. In this case Helens entry into the bathroom clearly was effective, as she was able to steal the perfume.
Next it must be proved that Helen entered a ‘building or part of a building’. A house would clearly be a building, however the problem arises when we consider that it was just the bathroom which we are concerned with. The bathroom would be considered a part of a building, and it is possible to have permission to enter some parts of a building but not others. For example, a student will have permission to enter a classroom whenever they please, but they are unlikely to have permission to enter the teacher’s office contained in that classroom. The case of Walkington (1979) involved D entering a ‘staff only’ till area of a Debenhams store, where he then looked into a till to see if there was anything worth stealing. It was held that the counter area of the store was a ‘part’ of a building, however the judge did specify that this should be left to the jury. In this case, the bathroom would clearly to seen to be ‘part of the building’.
The final and perhaps the most crucial part of the actus reus of burglary is that D entered ‘as a trespasser’. In civil law the definition of trespassing is being on someone else’s property without their permission or without a legal right to be there. However, in criminal law to trespass D must either intend to trespass or be reckless as to whether or not he is trespassing, as stated in Collins (1973) by Edmund Davies LJ. Helen could say that she was not entering the bathroom with intent to trespass, as she had been invited into the house, and had to permission to go upstairs into the bedroom. From this she may have thought that she would also have permission to enter the bathroom, as it a general room which Margaret surely would have allowed her to enter. However, the prosecution may argue that she has exceeded the consent given to her to enter. In the case of Jones and Smith (1976) James LJ stated that the prosecution must prove that D ‘entered with the knowledge that the entry was being effected against the consent or in excess of the consent that had been given’. It would be left for the jury to decide if Helen had done this, however they may well find that she did as she only had permission to enter the bedroom for a specific purpose – to get the £20, so there is no reason why she would also have permission to enter the bathroom.
The mens rea element of burglary that Helen must fulfil varies slightly depending on whether she is charged under section 9 (1) (a) or (1) (b). She would be prosecuted under s.9 (1) (a) as she entered the bathroom with the intent to commit theft, rather than developing this intent after she had entered.
Theft of the bicycle
As Helen leaves to go to the shop for Margaret she borrows her bike without asking. This could lead to a potential charge of theft. However, Helen may be able to use the defence that she was merely borrowing the bike, and so did not have an intention to permanently deprive the owner. Section 6 (1) of the Theft Act 1968 provides that:
‘a borrowing or lending of (the thing) may amount to (treating the thing as his own to dispose of regardless of the others rights) if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking’.
To apply this to our case, we must decide whether the taking of the bike is equivalent to an outright taking or disposal. To help decide this, we can look to the case of Lloyd and Others (1985) for guidance. In this case Lord Lane established that an outright taking or disposal could mean that D has an intention to return the thing in such a changed state that it can truly be said that all its goodness or virtue has gone. The facts of the case do not suggest that Helen has depleted any of the value of the bike by riding it to the local shop and back, so therefore we can deduce that she has just borrowed the bike, and so does not have an intention to permanently deprive. Without this intention she cannot be guilty of theft of the bike, as does not fulfil the necessary mens rea element of the offence.
Theft of £2
Whilst Helen is at the shop buying groceries for Margaret, she spends £2 of Margaret’s money on a magazine for herself. Then when she returns to deliver the groceries she lies and tells Margaret that there was no change from her £20. Helen could be charged with the theft of £2 under the Theft Act 1968 if the jury are satisfied that she dishonestly appropriated property belonging to another with the intention of permanently depriving the owner. Helen may argue that she had a belief in the owners’ consent; if this is truly her belief, however unreasonable, then she has not acted dishonestly so is not guilty. Another way to try and prove her dishonesty would be to apply the Ghosh test, as established by Lord Lane in the case of Ghosh (1982). This test gives two questions for the jury to use to decide whether D acted dishonestly. The first is an objective test – whether according to the ordinary standards or reasonable and honest people what was done was dishonest. If the answer to this is yes, then the jury may move onto the second, subjective question. This is whether D himself realised that what he was doing was by those standards dishonest. If the answer to this is also yes, then D has been dishonest. In this case I think that the first question would be answered ‘yes’ as to take £2 from an old lady who is incapable of even buying her own groceries would surely be dishonest. As for the second question, I believe that the jury would again answer ‘yes’, as by Helen telling Margaret that there was no change she is clearly lying to her which in itself is dishonest. It would have been easy for her to say that she had purchased a magazine with the change, however instead she chose not to – suggesting that she knew her actions had been wrong. In conclusion, I think that it is inevitable that the jury would find her to be dishonest and consequently guilty of theft as she fulfils all elements of the actus reus and mens rea.
Conclusion
In conclusion, I feel that Helen would be found guilty of burglary and theft of the perfume, as well as theft of the £2 which she used to buy a magazine. However, I think that Helen would not be successfully prosecuted for the theft of the chocolate liqueurs or for the theft of the bicycle.