Essay LA2-3: Produce a thorough, detailed and researched, answer to the theft/burglary/robbery problem question.

Written by Ruth Maltby (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.]

Introduction
The Theft Act (1968) provides explanations of what theft, burglary and robbery are. Firstly, ‘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 comprises of actus reus and mens rea elements that all make up the crime of theft. For the actus reus appropriation, property and belonging to another need to be proven. For the mens rea dishonesty and an intent to permanently deprive need to be proven.
Burglary is also defined in the Theft Act (1968) and there are two separate offences of burglary, but they both require the same actus reus elements; entry into a part of a building as a trespasser. S 9(1)(a) requires the mens rea of intent to commit theft, GBH etc. S 9(1)(b) requires an attempt to steal or cause GBH.
Robbery is an aggravated form of theft and ‘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 puts or seeks to put any person in fear of being then and there subjected to force.’
In this essay I will apply the Theft Act (1968) to the problem question and assess I the law and any possible defences available to Helen.

Two Chocolate Liqueurs:

Helen took two chocolate liqueurs from a dish on Margaret's coffee table, the question is whether or not this constitutes as theft. The law on theft as defined in s 1 of the Theft Act (1968) says 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.”

Helen can be said to have appropriated the chocolates belonging 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…”
Helen assumed Margaret’s right to eat her own chocolates.
Helen also intended to permanently deprive Margaret of the chocolates if she ate them as she would not be able to give them back in their original condition. Helen could argue that she intended to replace them, however in the case of Velumyl (1989) it was held that the D would still have appropriated the money even if he had intended to replace them with other banknotes to the same value. Therefore, even if Helen intended to replace the chocolates she would have appropriated them in this case.
Helen’s strongest defence lies in whether or not she dishonestly appropriated the chocolates. The Theft Act (1968) does not define dishonesty, however in s 2 it lays down three conditions that show the defendant is not being dishonest if the defendant appropriates the property with the belief that;
'he has in law the right to deprive the other of it, on behalf of himself or of a third person or, he would have the other's consent if the other knew of the appropriation and the circumstances of it or, the person to whom the property belongs cannot be discovered by taking reasonable steps.'
In the case of Holden (1991) the D had been accused of stealing scrap tyres from a previous employer. He argued that he knew others had taken tyres with the permission of the employer. However, the manager argued that taking tyres was a dismissible offence. In this case the jury was misdirected to ask if the D had a reasonable belief he had a right to the tyres. The D only needed to have an honest belief that he could take the property.
This is the case for Helen, if she had honestly believed that Margaret put the chocolates there for her to eat (or for guests to eat) then she would not have the mens rea for theft. Also, the chocolates were in an open dish – suggesting that Margaret would consent to someone eating them. However, if the dish had a lid it could be held that Helen could not honestly believe Margaret had put them on the table to be eaten because she had made the effort to put them away. Also, for Helen to know that there were chocolates inside she would have had to assume Margaret’s right to take the box and open it.

The Ghosh Test could also be applied here to clear up the point on dishonesty; the jury have to start with an objective test:
'was what was done dishonest according to the ordinary standards of reasonable and honest people?'.
Helen could be said to be dishonest because she did not ask Margaret if should could take a chocolate. On the other hand, it is only a chocolate and presumably Margaret would not mind if her neighbour ate one. Therefore, Helen would probably not be considered dishonest in this case by a jury.
If Helen was charged with theft, it could be taken one step further and be held to be burglary. It can be argued that Helen exceeded her invitation and went beyond her permission within Margaret’s house by stealing. An example of this is Smith and Jones (1976) where the D stole two televisions from his fathers house – where he had permission to be. It was held that:

“a person is a trespasser for the purpose of s 9(1)(b) of the Theft Act (1968) if he enters premises of another knowing that he is entering in excess of the permission that has been given to him to enter…”

However, it is likely that the purposive approach would be taken here to stop absurd results. As in every case of theft, the person steals from a place they are not allowed to and every time it could be held to be a burglary if it is taken that the theft itself makes the person go beyond their permission in the building.

Perfume:

Helen went upstairs to get Margaret's purse for her and whilst up stairs she saw an expensive bottle of perfume in the bathroom so she went in to spray some on her wrist, but she decided to take the whole bottle.

Simply spraying the perfume could be considered a theft as Helen would be 'assuming the rights of the owner', the case of Gomez (1993) held appropriation to be an assumption of any of the rights of an owner. Lord Keith in Gomez (1993) said:

“an act may be an appropriation notwithstanding that it is done with the consent of the owner”

Spraying the perfume is assuming Margaret's right to use the perfume and it is without her consent – Helen did not ask to use it. However, there are problems with the Gomez definition of appropriation and the Court of Appeal has had difficulty applying it. In the case of Gallasso (1993) Lloyd LJ said:

“Lord Keith did not mean to say that every handling is an appropriation…”

However, in Hinks (2001) Lord Keith’s wide definition of appropriation was extended. This case allowed a gift to be classed as an appropriation for the purposes of theft. Lord Stein was not ‘willing to depart for the clear decisions of the House in Lawrence and Gomez’.

A spray of the perfume can also be considered property as “'Property' includes money and all other property real or personal, including things in action and other intangible property” (s 4(1) Theft Act [1968])

However, it is not necessarily dishonest as Helen may have had a genuine belief that Margaret would consent if she knew of this appropriation. A person will not be considered dishonest if this is the case, for example borrowing another students textbook when they are not there, with the belief that they would not mind cannot be dishonest.

Taking the whole bottle of the perfume would be theft because she “appropriated property belonging to another with the intention of permanently depriving the other of it” (s 1 Theft Act [1968]).

Helen appropriated the perfume because she 'assumed the rights of the owner' (Gomez [1993]) by taking it and putting it in her pocket. Also, perfume is 'property' (s 4 Theft Act [1968]). The perfume is belonging to another (Margaret) and Helen intended to permanently deprive Margaret of this bottle of perfume by taking it away.

With the intent to permanently deprive is defined in s 6(1) of the Theft Act (1968):

“A person appropriating property belonging to another without meaning the other permanently to lose the thing is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal”

Helen intended to treat the perfume as her own by using it, also Helen only had to intend there to be a permanent deprivation – this deprivation need not take place. In this case it is likely that circumstantial evidence would have to be relied upon as the intent is not obvious, so the jury would have to infer from the evidence whether the intent was there.

Helen could argue however that she was just borrowing it and never intended to permanently deprive Margaret of the bottle, however as Helen intended to spray the perfume to begin with some of the perfume would have been removed from the bottle and consequently Margaret would be permanently deprived of it.

Helen could also argue that she did not dishonestly appropriate the bottle, even if she did intend to permanently deprive Margaret of it. Helen may have a belief in the ‘other’s consent’, Margaret may not have minded her neighbour borrowing her perfume or even keeping it.

However, by putting the perfume in her pocket would suggest that it is a dishonest appropriation because she wanted to keep the perfume hidden from Margaret.

The theft of the perfume could be taken one step further, it could be burglary. This is because Helen may have entered the bathroom as a trespasser. Helen was invited into the house, but she did not have permission to enter the bathroom, the case of Walkington (1979) shows that someone who has permission to be in one part of the building can be a trespasser in another part of the building that they do not have permission to be in.

It can however be argued that the bathroom is not an area that Helen did not have express permission to be in and it could be presumed that from Margaret inviting Helen into her home she would not mind if she used that bathroom. However, it can be said that she did not have permission to enter the bathroom and steal, but as mentioned before theft cannot make someone a trespasser.

Bicycle:

Helen borrowed Margaret's bicycle to go the store. By using the bike as Margaret would she has 'assumed the rights of the owner' and consequently appropriated property belonging to another.

However, the word 'borrow' suggests that Helen intended to give the bicycle back. The case of Lloyd (1985) where a projectionist at a cinema gave D a film so that he could make an illegal copy. D returned the film in time for the next conviction. His conviction for theft was quashed because the film was returned in its original state - it wasn't possible to prove an intention to permanently deprive. Therefore, according to the Theft Act (1968) Helen cannot be guilty of theft because she did not intend to permanently deprive Margaret of it.

Also, it can be argues that Helen’s appropriation was not dishonest even though she did not ask to borrow it because she presumed that Margaret would not mind and would give her consent as she was using it to do a job for her.‘a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it

DVD:

Helen saw a DVD at the store which was too expensive so she switched the price labels to a cheaper price. The store manager saw her and when she approached the till to buy it she confronted her. Helen panicked and pushed him in order to escape.

Changing the price labels is an appropriation, s 3 (1) says appropriation is 'any assumption by a person of the rights of an owner'. The case of Morris (1983) considers whether the assumption has to be of all of the rights of any of the rights. In Morris, the D switched the price labels of some items in a shop; he put the one with the lower price sticker on it in his basket. His conviction for theft was upheld, Lord Roskill said 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.”

In Morris (Confirmed in the H of L by Gomez) the right assumed was the owner's right to put a price label on the goods, also this case stressed that this had to be adverse interference.

Helen also assumed the right of the owner to put a price label on the goods and it was an adverse interference.

Pushing the manager could turn the theft into robbery; because of the force used. It would be held to be force because of the case of Dawson and James (1976) where even the smallest push can be counted as force. As the Theft Act (1968) s 8 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, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”

Helen stole (there was a completed theft) and in order to escape she used force.

Helen could argue that the force was used to escape, therefore it was not at the time of the theft, meaning that it would not be robbery, it would be two offences, theft and assault. The case of Lockley (1995) shows that using force to escape can still be said to be 'immediately before or at the time of theft' because this case follows that of Hale (1979) where the theft was held to be ongoing.

Keeps Change:

Helen kept the change and bought herself a magazine. This could be said to be theft because she appropriated property (the money) belonging to Margaret and she obviously intended to permanently deprive her of the money as she spent it on a magazine.

The only possible defence for Helen is that of lack of dishonest appropriation, Helen may have thought Margaret would not mind her spending the money, or that by doing the shopping it was her payment.

Conclusion:

Helen could be liable for several counts of theft and possibly even one of burglary and of robbery. However, Helen can argue in most of these cases that her acts were not dishonest and that Margaret was her friend and would not have minded.

Bibliography References:

Roe, D – ‘Criminal Law’ 3rd Edition

Martin, J – ‘Criminal Law’

Ormerod, D – ‘Smith and Hogan Criminal Law’ 11th Edition

Dobson, A.P – ‘Slater and Dobson: Cases and Statutes on Criminal Law’ 2nd Edition