Written by Charlotte Langridge (November 2007)
Scenario
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.
Introduction
Throughout this essay I aim to discuss Helens’ potential criminal liability for the offences of theft, burglary and robbery. I will also discuss any possible defences that Helen could plead, should she be convicted for any of the three offences. The Theft Act 1968 is central to this problem scenario as it is the statute which creates and defines the offences of theft, burglary and robbery respectively. Perhaps the fundamental definition of the Theft Act is as follows: ‘a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it’. This definition also enables the actus reus and mens rea of the offence of theft to be proven. For the actus reus of theft to be fulfilled the appropriation, property and belonging to another must be proven. For the mens rea of theft to be fulfilled dishonesty and intent to permanently deprive must be proven.
A definition of burglary can also be found within the Theft Act 1968. There are two separate offences of burglary, yet they both require the same actus reus elements; entry into part of a building as a trespasser. S.9 (1)(a) defines the requirement of the mens rea as ‘the intent to commit theft, GBH and so on’. S.9(1)(b) requires an attempt to steal or cause GBH.
Robbery is also defined within the Theft Act Act 1968. Robbery is literally an aggravated form of theft and ‘a person is guilty 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’.
I shall make references to the Theft Act 1968 and other relevant cases to Helen’s scenario to try and discover any potential criminal liability. I feel that there are five incidences in total where it could be argued that Helen has committed a criminal offence, these are the two chocolates, perfume, bicycle, the swapping of the DVD labels and the accompanying force and the £2 change. I will consider each of these separately to discover any potential criminal liability.
The two chocolate liqueurs
It is clear from the problem scenario that Helen helped herself to two chocolate liqueurs from a dish on Margaret’s coffee table while she was out of the room. The question here is whether or not this constitutes to an offence of theft. It is possible that this could constitute to the act of theft as I will now discuss. To prove the offence of theft Helen must have fulfilled s.1 of the Theft Act 1968. This states 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”. It can therefore be argued that Helen did appropriate the chocolates who belonged to Margaret as s.3(1) of the Theft Act 1968 states: “any assumption by a person of the rights of an owner amounts to an appropriation”.
There can be limited dispute over whether Helen appropriated the property as the case of Gomez 1993 illustrates. Gomez illustrates that appropriation is assuming one of the rights of the owner, which has clearly taken place here. In this scenario, Helen assumed Margaret’s right to eat her own chocolates. There can be little dispute over whether there was an intention to permanently deprive Margaret of the chocolates, as the act of eating the chocolates clearly illustrates that Helen did. Helen would not be able to give the chocolates back to Margaret in their original condition. Perhaps more importantly, there is an issue concerning dishonesty. This is referred to in s.2 of the Theft Act 1968, the definition of ‘dishonesty’ for the specific purpose of theft. S.2(1)b takes this further and contains the most relevance to dishonesty in Helen’s case. S.2(1) b states: “if he appropriates the property in the belief that he would have the others consent if the other knew of the appropriation and circumstances of it”. Thus raising the circumstance of whether or not Helen truly believed that Margaret would not have minded.
The issue of dishonesty is particularly significant to these type of cases, and has been raised in many previous cases. The case of Ghosh 1982 is the leading case on what is meant by dishonesty. In this case the Court of Appeal set out the tests to be used. In this case Ghosh was a doctor acting as a locum consultant in a hospital. He claimed fees for an operation he had not carried out. He said that he was not dishonest as he was the same amount for consultation fees. The trial judge directed the jury that they must apply their own standards to decide if what he did was dishonest. He was convicted and appealed the decision. The Court of Appeal decided that the test for dishonest has both and objective and subjective element to it. These are: 1. was what was done dishonest according to the ordinary standards of reasonable and honest people?, and 2. did the defendant realise that what he was doing was dishonest by those standards? The jury must firstly determine the objective test. If the jury, as reasonable and honest people decide that the actions of the defendant were dishonest by their ordinary standards. If the jury decide that the defendant’s actions were not dishonest the prosecution fails as a result. However, if the jury decide that the actions of the defendant were dishonest then they must consider the subjective test of whether the defendant knew it was dishonest by those standards.
Therefore, Helen could be said to be dishonest as she did not ask Margaret if she could have the chocolates. On the other hand under s.2(1)b it could be possible that Helen would be found not guilty of the theft of the chocolates as it could be argued that Helen truly believed that Margaret would not mind her having them, after all she is a neighbour and they were in an open dish, suggesting that they are there for guests. There is some doubt over whether Helen’s actions were dishonest and it is highly likely that Helen would be acquitted as it is likely that the purposive approach would be adopted to refrain from an absurd result. However this is an issue for the jury to determine.
Bottle of perfume
The second incidence where Helen may have criminal liability for her actions concerns the bottle of perfume. We are told from the scenario that Helen went upstairs to get Margaret’s purse for her. While Helen was upstairs she noticed an expensive bottle of perfume in Margaret’s bathroom. At first Helen sprays some on her wrist, but then decides to take the entire bottle and slips it into her pocket. Helens actions in regards to the perfume are covered by s.9 of the Theft Act 1968, by the offence of burglary. The issue that first springs to mind is whether or not Helen can be considered as a trespasser when she entered Margaret’s bathroom. Helen was only sent upstairs to get Margaret’s purse, she was not asked to enter the bathroom. Thus, it can be argued that when Helen entered the bathroom, she did so without any permission from Margaret, hence she was trespassing.
The Theft Act 1968 does not specifically provide a definition of trespassing; however there is a case that is relevant to this situation. In the case of Walkington 1979 a defendant went behind a counter at a Debenhams store, which he was clearly not given permission to do so. The Court of Appeal decided that this amounted to trespassing as the defendant had entered a part of a building, this is sufficient for trespass under s.9(1) of the Theft Act 1968. For Helen to be convicted of theft, the elements must be fulfilled. There can be no argument that Helen was dishonest and cannot be trusted. Helen was asked to get Margaret’s purse, not to pry in other rooms of the house. Helen appropriated Margaret’s property and fulfilled the intention to permanently deprive Margaret of the bottle of perfume. It is important to note that Helen committed two acts of appropriation. Firstly, Helen sprayed the perfume on her wrist. Even this is sufficient to amount to an act of appropriation. This was confirmed in the case of Gomez 1993 where Lord Keith gave the following definition: “appropriation of property as one of the rights of the owner had been assumed. Helen’s second act of appropriation was the removal of the perfume and the act of putting it into her pocket. Either of these acts shows a deliberate intention to permanently deprive Margaret of her property. Of course we must consider that the facts of Walkington are fundamentally different, however the facts are distinguishable. In the case of Walkington the defendant did not have permission to enter that particular part of the building. However, it is not as clear whether Helen would have had permission to Margaret’s bathroom. It could be argued that as they are friends, Margaret would not mind Helen using the bathroom. However, Helen did not ask and took advantage of this by stealing Margaret’s perfume. If Helen was convicted of theft, Helen’s lawyer would communicate this point to the court. Helen’s lawyer may argue the fact that Margaret may have indirectly given Helen permission to enter the bathroom, just as she had given her permission to go upstairs in the first instance. If this point was argued successfully, it is likely that there would be no conviction. There is a great deal of confusion as to whether Helen was trespassing, if this case was brought to court the prosecution would more than likely try Helen for theft rather than burglary. The prosecution could easily prove theft; however the issue of trespassing is not so clear.
The bicycle
In relation to the bicycle it is made clear that Helen borrows Margaret’s bicycle to go to the shops without Margaret’s permission. This is a clear act of appropriation of another’s property. The issue of the potential dishonesty is arguable and difficult to prove. It is also unclear as to whether Helen deliberately deprived Margaret of her bicycle. The fact that Helen ‘borrowed’ Margaret’s bicycle enables a clearer understanding of Helen’s potential guilt. Under s.6(1) of the Theft Act 1968 borrowing is sufficient to amount to theft if: ‘his intention is to treat the thing as his own to dispose of regardless of the other’s rights.’ In Helen’s situation there may be some dispute over whether Helen borrowing the bicycle could amount to theft. However, it must be noted that all the other required elements of theft are present. There is little evidence that Helen took the bicycle to treat it as her own. Helen only used the bike in order to carry out Margaret’s errand and returned it afterwards; therefore it cannot be truly regarded as theft. I would expect that Helen is unlikely to face a conviction of theft as she borrowed the bicycle and returned it in back to Margaret after running her errand. As the pair are friends this could be used as a mitigating factor, should this be brought to court.
The switching of the DVD price labels and the accompanying physical force
It is clear from the problem scenario that Helen sees a DVD which is to expensive at £14.99, so she decides to switch the price labels with another DVD which was priced at £9.99. Helen is watched on the store’s CCTV by the Store Manager who consequently confronts her as she approaches the till with the DVD in her hand. Helen then panics and pushes the Store Manager to one side in order to escape. This is covered under s.8 of the Theft Act 1968. For Helen to be convicted it must first be proved that the act of swapping the DVD price labels amounts to the offence of theft. It must also be proved that the force that was used by Helen was in order to steal the DVD. In the case of Morris 1983 a similar set of circumstances occurred, without the accompanying force. The case of Morris can be used to establish whether Helens acts amount to theft. Morris also switched the price labels to gain a lower price for the item that he wanted. Morris was arrested by the police before going through the tills. Morris’ conviction for theft was later upheld by the House of Lords. Therefore, it is evident that Helen’s actions can and most probably will amount to theft. However, there is a more serious issue to consider – the force that Helen used upon the Store Manager. It also must be established whether Helen used the accompanying force in order to steal the product.
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.