THEFT PROBLEM QUESTION A2-8
Written by Harriet Levett (May 2006).

INTRODUCTION

The situation that Helen is in provides the opportunity of prosecution and criminal liability in relation to theft, robbery and burglary contained within the Theft Act 1968. Helen has the possibility of being liable for the theft of two chocolates, burglary/theft of perfume, theft of a bicycle, robbery/theft of a DVD, and theft of change. Helen’s convictions for any of the above would depend on liability being determined on the basis that the courts were certain ‘beyond all reasonable doubt’ that the mens rea and actus reus of the offences were fulfilled (Woolmington v DPP). The likelihood of a successful prosecution can be determined via an exploration of each situation in relation to statue and past precedent set by case law.

THEFT

The statutory definition of theft (as well as key cases) will be essential in determining Helen’s liability in the above circumstances. A full understanding of theft is vital as Helen could be charged for theft alone, or, in some of the situations, burglary or robbery (for which theft serves as prerequisite).
Theft is defined and explained in the Theft Act 1968 S1-6. Section 1 provides the definition of theft: ‘a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention to permanently deprive them of it’. Sections 2-6 clarify phrases and words within this definition.
S2- ‘dishonestly’ (mens rea)
S3-‘appropriates’ (actus reus)
S4- ‘property’ (actus reus)
S5- ‘belonging to another’ (actus reus)
S6- ‘with the intention to permanently deprive’ (mens rea)
These sections within the Theft Act are accompanied by cases that further establish legal principles in this area.

ROBBERY
Robbery is contained within S8 of the Theft Act 1968. Section 8 states the following ‘ 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, he uses force on any person or seeks to put them in fear of being then and there subjected to force’.
Robbery is essentially theft accompanied by force (immediately before or at the time of theft, to achieve the theft). It is important to note that merely intending to use force or intending to cause V to apprehend fear is sufficient, no physical action is required.
Cases in this area further clarify robbery as an offence.

BURGLARY

Burglary is contained within section 9 of the theft statute. Section 9 defines burglary in two parts 9(1) a and 9 (1) b.
S9(1)a : ‘a person is guilty of burglary should he enter a 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 there in’
S9 (1) b: ‘ a person is guilty of burglary should he, having entered any building or part of a building as a trespasser, 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 GBH’
(These sections pertain to buildings as stated in S9(4) as to include inhabited vessels and vehicles at times when the habitant is present and we he is not)
The difference between these two sections is that b allows for the mens rea element to be fulfilled after entry, (b) also excludes unlawful damage and deals with the attempts of GBH and theft that (a) does not provide for.
It is important to note that for burglary S9 provides that D must either know that he is a trespasser or be reckless as to this fact.
Burglary, as with theft and robbery is further clarified by case law that will be discussed with relevance to Helen’s situation throughout the analysis.

2 CHOCOLATES

Helen took 2 chocolates from a bowl on the coffee table. The possible conviction in this situation is theft.

Theft necessitates:
*a dishonest (MR) appropriation (AR)
*of property belonging to another (AR)
*with the intention to permanently deprive (MR)

However this situation is perhaps the event least likely to event in a prosecution (let alone a successful one). Firstly, in relation to theft while Helen fulfils the elements of appropriation of property belonging to another (by taking the chocolates from the bowl) and doing so with the intention to permanently deprive (through consumption) Helen did not do this dishonestly for two reasons. Firstly, it is fair to suggest that Helen held the genuine belief that Margaret would have consented to the appropriation under Section 2(1) b and the case of Small 1988 which voids any liability as a result of such a belief. Secondly, the test of dishonesty established by the courts in the case of Ghosh also would prevent the likelihood of a successful prosecution. The Ghosh test offers two requirements to be decided on by the jury; firstly the jurors must decide if the action (theft) was dishonest objectively (based on the standards of a reasonable man) and secondly if D appreciated the actions were wrong by these standards. Only if the answers both requirements are yes could D be found guilty. In this situation it is unlikely that the jury would find Helen’s actions to be dishonest. Thus without the necessary MR Helen would not be found guilty, nor is it likely that she would be prosecuted at all.

PERFUME

This event involved Helen taking a bottle of perfume from the upstairs bathroom. The two possible option for liability are burglary under section 9 (1) b and theft.

Burglary necessitates:
*a trespass (knowingly or recklessly)
*a theft (or an attempt) and/or GBH (or an attempt to inflict this)

Theft necessitates:
*a dishonest (MR) appropriation (AR)
*of property belonging to another (AR)
*with the intention to permanently deprive (MR)

In relation to burglary Helen must have entered a building or part of a building as a trespasser. It can be argued with case law that Helen was indeed a trespasser (whether it be knowingly or recklessly) as Helen was only invited to enter Margaret’s bedroom and not the bathroom. The case of Walkington demonstrates the principle of exceeding permission. In this case the defendant sorted through a draw behind the till area at debenhams. The jury decided that this was exceed the permission of entry, as while D had entered the building lawfully his access was denied behind the till area as it was meant solely for staff. However, in this case the judge may choose to distinguish as a bathroom is commonly accepted to be entered at the will of the visitor, and isn’t usually considered to be excluded from an invitation into a home. Furthermore, a trespass can occur knowingly on behalf of D or if D is reckless as to whether he/she is trespassing. Thus if the prosecution feel that they can demonstrate a reckless trespass this is sufficient to fulfil the MR element of burglary.
Jones and Smith 1976 is also helpful in relation to Helen’s situation. In this case D entered his father’s house and appropriated 2 television sets. The courts held that despite his father’s unreserved permission to enter the house it did not extend to the appropriation of property within it.
These cases support Helen’s conviction as it is arguable that even if she wasn’t held to have exceeded her permission to enter the bathroom that she certainly did not have permission to do so in order to steal and thus would be convicted under the precedent of Jones and Smith.
In terms of theft, should burglary for some reason fail would succeed. Here Helen assumes the right of the owner which under S3 of the Theft Act, and as per precedent in the cases of Morris, Anderton and Gomez amounts to appropriation via the initial spraying let alone the outright taking of the bottle. Also it would be near to impossible to convince the jury that Helen was not dishonest. The Ghosh test provides that Helen must not have recognised that what she was doing was dishonest; the jury is not likely to believe this to be the case. Finally it is clear that Helen intends to permanently deprive the owner of the perfume, and even should she claim an intent to return it, it is feasible to suggest that after the perfume had been used (to any extent) some of its value was reduced thus constituting deprivation anyway.
Depending on the angle chosen by the prosecution either charge is a viable option that is fairly likely to result in a conviction. However it is important to bare in mind that theft is always an easier charge to prove than burglary. Also, as the bottle was not of large value it may be best to go with the theft option as the sentence for either offence is likely to be similar due to its minor nature.

THE BICYCLE

Helen, when on her way to run errands for Margaret, takes V’s bicycle without obtaining permission. This involves a potential theft charge.

Theft necessitates:
*a dishonest (MR) appropriation (AR)
*of property belonging to another (AR)
*with the intention to permanently deprive (MR)

Each of the above elements must be fulfilled in order to convict Helen. In relation to the AR it can be seen as appropriation as the rights of the owner were assumed (Morris, Anderton, Gomez) and the bicycle did belong to another. However there would be conflict over the MR factors.
Firstly, Helen could argue that she genuinely believed that Margaret would have consented to her using the bicycle which would not qualify as a dishonest appropriation (S3 Theft Act 1968, Small 1998).
Secondly, in relation to permanent deprivation, Helen could argue that she merely borrowed the bicycle. In section 6 (1) of the Theft Act it states that a borrowing would only constitute appropriation should it be for a period long enough to substantiate an outright taking (and this is not the case). Also in Llyod the ratio declared that a borrowing would only amount to theft should the function of the object be impaired or if the value of the object was reduced or lost as a result.
If Helen’s case was argued along these lines it is fair to say that the intention to permanently deprive was not present and the prosecution would thus not succeed.

DVD

Here Helen changed the price of a DVD to a lower price and then prior to paying runs off with the DVD pushing the manager out of her way. Here the likely charge would be that of robbery.

Robbery necessitates:
*theft (AR and MR)
*accompanied by force, immediately before or at the time of the act, in order to steal (AR)

Firstly, Helen meets the criteria for theft (dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it). Firstly on the basis of the Ghosh test (discussed above) it is clear that by reasonable standards this was dishonest and it is unlikely that Helen could convince the jury that she did not recognise this. In terms of appropriation the principles set in the similar cases of Morris and Anderton state that the assumption of the rights of the owner in this way, by changing price tags to lower prices, is appropriation. Furthermore, the fact that Helen was going to the till to pay the lower prices and then intended to walk freely from the store suggests an intention to permanently deprive thus both AR and MR elements of theft are satisfied.
As the prerequisite of theft is fulfilled the possibility of a robbery conviction then has potential. However, the prosecution must prove that the theft was accompanied by force use at the appropriate time in order to steal.
The case of Lockley 1995 involves very similar facts. In Lockley D stole from a shop and pushed the security guard out of the way in order to escape. Here D argued that as the appropriation ceased prior to the force it could not be robbery, however, the courts did not agree. The courts followed the principle of Hale which state that appropriation could be a continuous act and the jury is to determine whether the actions constituted force (by its ordinary connotation-Clouden) and whether the force coincided with an appropriation. In Lockley the jury’s verdict was that of guilty as they decided (as in Hale) that the appropriation was continuous. This indicates that Helen would indeed be found guilty of robbery.

CHANGE

Finally, Helen uses the left over change from Margaret’s grocery shopping to purchase herself a magazine. This would constitute a theft charge.

Theft necessitates:
*a dishonest (MR) appropriation (AR)
*of property belonging to another (AR)
*with the intention to permanently deprive (MR)

Section 5(3) of the Theft Act 1968 refers to people holding money for a particular purpose. The section deals with situations in which people are under an obligation to use money for its intended purpose and if D is to do anything unauthorised with it a conviction can result. This is further clarified by case law.
In the case of Davidge a flatmate collected money from those that lived with her to pay the bills with. However, D used the money for Christmas presents and ended up not paying the group’s bills. The ratio was that as the money was not used for its intended and particular purpose that she was guilty of theft. This follows the same principle as has occurred in Helen’s situation. Margaret gave Helen the money to buy groceries with, there was thus obligation to treat the property in this way, and the magazine purchase was outside of this premise thus substantiating a theft charge.
In regards to MR the requirement is clearly met as Helen denies having any change, this also indicates that Helen’s action was that of outright taking with no intention of return. This would no doubt meet the criteria of the Ghosh test also as lying is generally perceived to be dishonest and few people genuinely would believe otherwise (particularly in this circumstance). Thus this false representation is quite obviously enough to fulfil both elements of the MR.

CONCLUSION

Case law and statute provide that in regards to the perfume, the dvd, and the change Helen would be liable. On the other hand, the likelihood of a successful conviction is less in regards to the bicycle and the chocolates. However, judges may chose to distinguish Helen’s case from those previous, or should (in the unlikely event) the case reach the House of Lords or (in some circumstances) the CoA the judge may overrule previous precedent. Though liability is fairly clear indeed.