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.
I will begin by discussing Helenıs potential criminal
liability regarding the two chocolate liqueurs, the spray and the bottle of
perfume, the bicycle and the money.
The definition of theft under s1 of the Theft Act 1968 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 itı. The actus reus of the
offence is appropriating property belonging to another and the offender will
have the necessary mens rea if he does this in a dishonest way, intending to
permanently deprive the true owner of it. These words need to be looked at more
fully to establish where the potential liability lies. S3 of the Theft
Act states:
any assumption by a person of the rights of an owner amounts to be an appropriation,
and this includes, where he has come by the property (innocently or not)
without stealing it, any later assumption of a right to it by keeping or
dealing with it as ownerı. Based on this, therefore, a person appropriates
property when he or she assumes the rights of the true owner. It has been
decided by the House of Lords in Morris, Anderton v Burnside (1984), with Lord Roskill clearly stating
at it was enough for the prosecution to prove that any of the rights of the
owner have been assumed. Both Morris and Anderton involved the substituting of
lower price labels and were both appealing on the grounds that they had not
appropriated property belonging to another, because they had not assumed al the
rights of the real owner. Both appeals were dismissed the House of Lords
decided that they had assumed at least one of the rights of the real owners of
the store by switching the labels on the goods and this actions was sufficient to
amount to an appropriation. According to this an appropriation has taken place
of the two chocolate liqueurs, the spray, the bottle of perfume, and the
bicycle because in each of these cases Helen has assumed one of the rights of
the real owner.
In Lawrence v Metropolitan Police Commissioner (1972), it this case it had been decided
that an appropriation had taken place, and a theft committed, when the real
owner had apparently agreed to the taking of the money showing that an
appropriation can exist where the owner ahs given his or her permission to the
taking. This case involved an Italian student, Mr Occhi, who spoke very little
English but showed the taxi driver a piece of paper on which an address was
written. The taxi driver falsely indicated that the journey was long and
expensive and when offered a one pound note, he took a further 6 pounds from the
studentıs open wallet. The House of Lords decided that there could be an
appropriation even though the owner has permitted or consented to the property
being takenı. According to this Helen has appropriated the 2 pounds change as
although she was given the money and therefore consent to the taking of the
property was given she kept the change for herself and treated it as her own
which according the statute defining theft would make her guilty of an
appropriation. However, although the actus reus for the offence of theft has
been established the mens rea also has to be established for the crime of theft
to occur so it is now therefore necessary to look at whether Helen had the
necessary mens rea to commit the different offences.
As stated earlier, the mens rea of theft requires that the
accused should dishonestlyı appropriate property with the intention of
permanently depriving the other of itı. There is no actual definition of
dishonesty under s2 of the Act and it is the jury that has to decide the matter,
instead the act describes 3 situations in s2(1) where a person is not to be
classed as dishonest and two situations in s1(2) and s2(2) where he would be. S2(1)(a) states that a person will not be
regarded as dishonest if he appropriates property, for himself or a third
party, believing that he has a right in law to deprive the other of it. It
appears from the case of Holden (1991), that it is not necessary for the
accused to prove that his belief was a reasonable one, providing that it is
genuinely held. The defendant must, believe, however erroneously, that he has a
legal, as opposed to a moral right to the property. The Court of Appeal in this
case held that a person was not dishonest if he had an honest belief that he
had a right to take the property. It must be kept in mind, however, that in
fact it is the jury that decides the matter and if the belief is a very
unreasonably held one, the jury is less likely to believe that it was an honest
one. Under S2(1)(b), a person will not be considered dishonest if he takes property
believing that the other would consent to this course of action if he knew
about it. An example of this would be borrowing a fellow studentıs law books
while that person was away, in the belief that he would approve of this course of
action. It is important when looking at whether these two sections apply to
Helen to establish whether the dish in which the 2 chocolate liquors was opened
or closed as well as the relationship between the two women. Margaret invited
Helen into the house. If the container was closed and Helen waited until
Margaret was out of the room to help herself to the two liquors, then the jury
could infer that if fact Helen had a dishonest intention and therefore with the
appropriation already established she was guilty of the theft of the 2
chocolate liquors. However, if the container was open keeping in mind that
Helen was invited into the house then it could be inferred that the liquors
were being offered as a hospitable gesture by Margaret and Helen had every right
to help herself to these whether or non Margaret was in the room as they were
being offered to her on which point to jury would be able to find a dishonest
intention as probably all of them would have been in similar situation. It is
important to look at the relationship between the two women. The fact that
Margaret asks Helen to get her purse from upstairs suggests quite a close
relationship between the two women suggesting that Helen has been a guest in
the house before. Taking this point into consideration means that Helen would
have more rights in the house. Even if the container was closed Helen would
feel that she could help herself as she would not think that Margaret would
disapprove. When you walk into a friendıs house and open the fridge and eat
something from it that would not be a theft because your friend would approve
to your actions. On the basis of s2(1)(b), the jury taking this relationship
into consideration could not possibly find a dishonest attempt in Helen helping
herself to 2 chocolate liquors and as the dishonest intent cannot be
established Helen would not be guilty of theft, but it is worth remembering it
is the jury who makes this decision.
The case of Ghosh (1982) holds the basic test for
establishing dishonesty and is a mixture of an objective and subjective
approach. The 2-fold test asks the jury to decide on whether according to the
ordinary standards of reasonable and honest people what was done was dishonest.
If the jury decides that it was not, that is the end of the matter, if,
however, the jurors decide that it was dishonest, they should then consider
whether the defendant himself realised that what he was doing was by those
standards dishonest. The accused can only be convicted if the answer to both
questions is yesı. In the case of Price (1989), Lord Lane stated that there was no
requirement for the judge to give Ghosh direction in vast majority of cases, it
was only necessary in cases where the defendant appeared to believe that his
actions were not dishonest but there was some doubt about whether he really
though that others would share this view. Applying the Ghosh test in relation
to the spray, it is important to again consider the relationship between the
two women as well as whether the bottle of perfume was an expensive bottle that
had not been opened and is any kind of bottle. Based on the Ghosh test if the
jury believe that the two women had a close enough relationship that the
spraying of the perfume would be approved to in Helenıs belief by Margaret the
jury may decide that in similar circumstances they may have done the same thing
with them being reasonable and honest people, the jury may well decide that her
actions were not dishonest and that would be the end of the matter. It is
possible, however, that Margaret would draw the line here and she would not
have found it appropriate for Helen to spray an unopened bottle of her
expensive perfume and many in the jury would probably feel this way on which
grounds they may think as reasonable and honest people that Helen acted
dishonestly and therefore it would next need to be established whether Helen
herself realised that what she was doing was by those standard dishonest which
would be unlikely. She would probably claim that she though due to her
relationship with Margaret she had the right to spray the perfume and would
therefore not be guilty of dishonesty and therefore not guilty of theft because
the means rea in relation to the spray of the perfume had not been established.
The dishonest actions of Helen are clear in relation to the
taking of the perfume bottle; she took it without permission and put it in her
pocket to telling Margaret anything about it. Applying the Ghosh test, the jury
would probably find that acceding to the standards of reasonable and honest
people the act of taking the perfume bottle was dishonest and they would also
decide through the fact that Helen put the perfume bottle in her pocket and
didnıt tell Margaret about her taking it suggests that she knew what she was
doing was wrong. Based on this Helen would most certainly be found guilty of
the theft of the perfume bottle.
S6(1) provides that a person will be taken as permanently
depriving that other of property if he intends to treat property as his own to
dispose of regardless of the real ownerıs rights and stated that this may
sometimes occur even in cases where the offender is claiming that he has
borrowed the goods. Whether the taking of the bike was dishonest once again
depends on the relationship between the two women and whether the jury
considers that Helen was not acting as a reasonable and honest person would
have acted and she knew this, but if the two women had a good relationship, it
is unlikely that the jury would find that Helen had the necessary mens rea and
therefore would probably not be found guilty of the theft of the bike.
A clear dishonest intent can be seen in relation to the 2
pound change. Helen lied to Margaret telling her there was no change. An
appropriation had been established as she appropriated the money and used the
change as her own and the jury would applying the Gosh test find her guilty of
the theft of the money.
S9(1)(a) of the Theft Act 1968 states that burglary is committed
where the defendant enters a building or part of one as a trespasser, with the
intent to steal, to inflict grievous bodily harm or to rape therein or to do
unlawful damage to the building or anything in itı. S9(1)(b) provides that burglary is also
committed when a person steals of inflicts grievous bodily harm on another,
after he has entered as a trespasser, or attempts to do either of these things.
Usually it is easy to show that the wrongdoer is trespassing but there can be
problems for example where the defendant claims he had rights to be there. In
the case of Jones and Smith (1976), the defendants removed two television sets for the
home of Smithıs father during the night and were convicted of burglary, but the
father tried to protect his son and argued that it was not burglary arguing that
he was not a trespasser because he had unreserved permission to enter the
house. The Court of Appeal decided that the word trespasserı also covered
situations where a person acts in excess of the permission given quoting with
approval the civil case of Hillen and Pettigrew v ICI (1936) and especially the comment that
when you invite a person into your house to use the staircase you do not invite
him to slide down the banistersı. The court made it clear that a person is a
trespasser if he enters premises of another knowing that he is entering in
excess of the permission that has been given to him, or being reckless as to
this fact. Burglary will also be committed where the trespasser enters any
building or part of a buildingı which was considered in the case of Walkington
(1979). In this
case the defendant went up to the 1st floor in Debenhamıs department
store, went behind one of the movable counters and looked into the open drawer
of the till and when he discovered it was empty he slammed it shut and tried to
leave the store. The Court of Appeal quoted Professor Smith stating a licence
to enter a building may extend to part of a building only. If so, the licensee
will trespass if he enters some other partı. If the offender then intends to
commit a crime in that other part, he will be guilty of burglary. Helen was
invited into the house, therefore she was not a trespasser and she didnıt seen
to have a previous intention to steal anything, however, as can be seen from
the case law she can still be found guilty of burglary as she acted in excess
of the permission given to her. By going into the bathroom she was not trespassing
as it is assumed that when a person is invited into a house, they are allowed
the use of the bathroom, however, in the bathroom she went in excess of the
permission given to her by taking the bottle of perfume and therefore would be
guilty of burglary in relation to the bottle of perfume.
May 2004.