Essay A2-8 Plan
Title: Theft, Burglary and Robbery Homework
Due: Thursday 4th May 2006
Paul GOMM

Introduction

The Basic Law on Theft, Burglary and Robbery:
Theft

Burglary

Robbery

The Different Issues of Criminal Liability

Criminal Liability: The Chocolate

Criminal Liability: The Perfume

Criminal Liability: The Bike

Criminal Liability: The DVD

Criminal Liability: The Change

Conclusion

....................................

Essay A2-8
Title: Theft, Burglary and Robbery Homework
Due: 4th May 2006

Introduction
The problem question in hand contains a number of different situations in which there may be potential criminal liability for Helen. I will look at each of these situations separately and conclude on whether Helen has any potential criminal liability for them. However I will start off by outlining the basic law on Theft, Burglary and Robbery so that I am then able to apply it later on to the situations with the correct case law surrounding it.

The Basic Law on Theft, Burglary and Robbery
Theft
The law on Theft, Burglary and Robbery can be found under the Theft Act 1968. Theft is under Sections 1 to 6 of the Theft Act 1968 and under Section 1 the definition of the crime of theft is outlined. It is said that a person will be held to be guilty of theft when they:

“dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it”.

We can see therefore that there are a number of different issues within the definition of Theft and that each part is covered under Separate sections of the Theft Act 1968. The term “dishonestly” can be found under Section 2 of the Theft Act and is a mens rea element which must be proved for a conviction to stand. I will discuss the law relating to this issue and the test for finding dishonesty later on within the different scenarios. However I will first outline when a person will not be considered dishonest.
Under S2.1 a of the Theft Act a person would not be considered to have acted dishonestly if they appropriate property belonging to another with the honest belief that they have a right under the law to take that property. This was seen in the case of Holden 1991 where the D’s belief was held to be honest after he took tyres from his place of work.
Under S2.1 b a person is not dishonest if they take property believing that the owner would consent to them doing so. For example, sometimes people may share clothes and allow each other to wear them. If a person took an item of clothing believing that the other would consent because they often do so, they could not be held to be dishonest.
Finally under S2.1 c if a person takes property believing that they are unable to find the person whom it belongs to even after reasonable steps are taken then they will not be held to be dishonest. This was seen in the case of Small 1988.

S3 of the Theft Act 1968 deals with the issue of Appropriation. This will be discussed in more detail in one of the later issues due to the large development of the case law within this area. The basic view of the term appropriation is covered under S3 and state that appropriates means:

“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 without stealing it, any later assumption of a right to it by keeping or dealing with it as owner”.

As stated the law has developed largely over a number of key cases such as Morris; Anderton v Burnside 1984, Lawrence v MPC 1972 and Gomez 1993 and therefore I will discuss this issue in greater depth under one of the scenarios.
S4 of the Theft Act 1968 deals with the issue of Property and this will also be discussed in greater depth later. However, the basic definition can be found under S4.1 and states that property is considered to include:

“money and all other property, real and personal, including things in action (intangible property such as patents, copyrights, debts etc) and other intangible property (such as gas).”.

Once again under the Theft Act 1968 sections 4.3 and 4.4 certain items cannot be considered property. If a person picks wild foods such as fruit and foliage, then as long as they are not seeking to sell the items on for a commercial purpose and to make a profit, then the items will not be considered as property. This is the same for Wild animals. As long as they have not been tamed or were not already in captivity such as on a farm, or in a nature reserve then they are not considered to be classed as property which can be stolen.
Section 5 of the Theft Act brings us onto the Term; “Belonging to Another”. This can be found under S5.1 and it is laid down that property will fall under this term when it belongs to any:

“person having possession or control of it, or having in it any proprietary right or interest…”

This area of the law has once again developed under the case law involves and this will be examined in one of the later issues involving Helen. The final issue with regard to the Theft is that of the “intention to permanently deprive the other of the property”. This can be found under S6.1 of the Theft Act 1968 and is considered to be an issue of Mens Rea. It states that:

“A person appropriating property belonging to another without meaning the other permanently to lose the thing itself 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.”
The situations regarding borrowing will be looked at also in more detail later with regard to the bicycle.

Burglary
The law regarding burglary can be found under S9 of the Theft Act 1968. There are two different available criteria for the crime of burglary under S9.1a and S9.1b. Under S9.1a a person is guilty if he; “enters a building or part of a building as a trespasser and with the intent to commit an offence as found under Subsection 2” which includes Theft, GBH and Criminal Damage. Section 9.1b differs in that a person will commit the offence of burglary when; “having entered a building or part of a building as a trespasser, he steals or attempts to steal, or inflicts or attempts to inflict any GBH on any person therein.” Therefore we can see that there are differences between the two offences. When I come to the issue involving a possible case of burglary I will discuss the law and the case law in more depth.

Robbery
The offence of Robbery can be found under S8 of the Theft Act 1968 and it is considered that a person will be guilty of the offence 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.” Once again I will discuss the issue and the relevant case law in more detail when I reach the scenario involving robbery.
I will now go on to discuss the different issues of criminal liability within the case facts.

The Different Issues of Criminal Liability
Within this Theft, Burglary and Robbery question there are a number of different issues of Criminal Liability. The first issue involves the chocolates within Margaret’s house, two of which Helen takes without asking permission. The second issue involves the perfume which Helen steals from upstairs. The third is the issue with regard to the bicycle which Helen uses to go to the shops without asking permission from Margaret. The fourth issue is with regard to the switching of the price labels on the DVD within the store and the final issue is with regard to the £2 change which Helen keeps without telling Margaret or asking her permission. I will now look at each of these issues separately.

The Chocolates
When looking at this issue we see that the Margaret invited Helen, and whilst Margaret was out in the kitchen Helen helped herself to “two chocolate liqueurs from a dish on Margaret’s coffee table”. As stated Theft is defined as when a person “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”. It is quite obvious that under the law Helen has in fact appropriated property belonging to another. The chocolates would under the law be considered to be property. However the main question involved within this issue is whether the property has in fact been appropriated “dishonestly.

The basic test for dishonesty can be found under the case of Ghosh 1982. This was established in the Court of Appeal and it is a two fold test whereby both parts need to be established to discover whether the defendant has in fact been dishonest. The test for this is as follow. The first part of the test asks the jury whether; “According to the standards of reasonable and honest people, do you believe that what the defendant did was in fact dishonest?”. Now if the jury decide that it was a dishonest action then the D will be labelled as “Accused of the Crime”. If however the jury believe that the D was not dishonest by the standards of reasonable people, then they will be required to acquit the D of the crime. So if the D does in fact stand accused then the jury will be required to consider the second part of the two fold test. This part of the test asks the jury that if they do believe the D was dishonest, do they believe that; “the D realised that what he was doing was dishonest by those standards”? If the jury believe that in fact the D was not aware that what he was doing was dishonest, then they are entitled to acquit him of the crime because he is lacking of the vital mens rea requirement. If however the jury believe that the defendant was well aware that his actions were dishonest then they will be required to convict him of the crime of Theft for which he stands accused.
Now, what happens if we apply this to the situation in hand.

For a start we can in fact tell that since the chocolates were present on the coffee table in Margaret’s house, they were evidently there to be consumed. It could be argued that as they were out upon the coffee table in this fashion, then they were in fact an “invitation to treat” and that this would not simply apply to Margaret herself, but also to her guests. It is likely that Margaret would have been more than willing to allow Helen to help herself, especially since she was there to run an errand for her. However we cannot be certain. It could be that Margaret has left the chocolates there for herself and would in fact be unwilling to allow Helen to consume one of them. If so and Helen was charged with Theft of the chocolates, then what would occur with regard to the matter of Dishonesty. For the first section it looks at whether according to honest and reasonable people the actions of the D could be considered to be dishonest. I believe that it is very unlikely that a jury would consider her actions to be unreasonable or dishonest. It is more than likely that they would take the view that Helen was likely to believe that she would be allowed to consume the chocolates, because she was there as a guest to Margaret. Therefore I believe that it would be likely that the jury would acquit her at this moment. If however the jury did believe that it was a dishonest action then it is more than possible that they would believe that in her eyes (the subjective element), what she was doing was not in fact dishonest, and therefore I believe she would be acquitted.
Furthermore, under S2.1b of the Theft Act 1968 it is considered that no dishonesty is present if the D takes the property believing that the owner would consent to them doing so. Therefore, Helen would believe that it was quite likely that Margaret would consent to her actions and therefore she is not in fact dishonest. Therefore I do not believe that under the Theft Act 1968 and subsequent case law, Helen would be convicted of the theft of two chocolates.
If a case was brought I feel that the Courts would be likely to consider it a waste of tax payers money.

The Perfume
The next item to consider is that of the possible Theft or Burglary of the bottle of perfume from Margaret’s home. The facts of the case state that; “whilst on the upstairs landing, Helen notices an expensive bottle of perfume in the bathroom. She goes into the bathroom to spray some on her wrist, but then decides to take the whole bottle, which she slips into her pocket.” It is quite obvious from the facts that Helen has in fact appropriated the bottle of perfume which belongs to Margaret and through her actions of slipping the bottle into her pocket, has the intention to permanently deprive Margaret of the good. She has assumed the rights of Margaret, firstly by intending to spray the good upon her wrist and secondly by the fact that she has placed the bottle within her pocket. This is an obvious assumption of one of the rights of the owner under the case of Gomez 1993, discussed in more depth within the issue of the DVD and the switching of the price labels. However one issue that could be present here is whether in fact Helen should be charged with the offence of Theft under S1 of the Theft Act or Burglary under S9 which has a longer sentence of maximum imprisonment attached to it. This is clearly an obvious case of Theft an a prosecution upon this matter would be easy to fulfil, however could the fact of the case actually amount up to the crime of Burglary.
Under S9.1a of the Theft Act 1968 a person will be held to have committed the crime of burglary if “they enter any building or part of a building as a trespasser and with intent to commit any such offence as is laid down”. Therefore it is obvious that the intent must be formed before or at the time they trespass. This differs from S9.1b, as under this section a person will be held guilty of burglary if “having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it”. This is different in the sense that the intention to steal can be formed after the D has trespassed and therefore it is the element under which Helen would be likely to be charged.
The issue of entry is fairly obvious as is that of building however it is the issue of trespass which causes problems within this case. It may be asked how Helen can be considered a trespasser when she was invited into the house by Margaret. She has the consent to be within the house. The case of Jones and Smith 1976 is therefore important when considering this matter carefully. In this case the D’s had entered the house of one of their fathers in the night and had taken to TV’s from the house without informing their father. The two D’s were convicted of Burglary however it was stated by the father that the D’s could not in fact be trespassing as they have “unreserved permission to enter his house”. The D did in fact have a key. However the D’s appeal against the finding was unsuccessful. It was held that in fact;

“it is our view that a person is a trespasser for the purpose of S9.1b 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, providing the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser.”

It is obvious that Helen has acted in “excess of the permission” which Margaret would grant to her. She has entered the bathroom where she did not have permission to go, and appropriated the bottle of perfume. It does not matter that she had permission to enter the house. She has acted in excess of what she was permitted to do. In this case the judge quoted the case of Hillen & Pettigrew v ICI (Alkali) Ltd 1936 when he said that; “when you invite a person into your house to use your staircase you do not invite him to slide down the banisters.”
It is also necessary that the person is aware that they are trespassers or reckless as to whether they were. This was established in the case of R v Collins 1973 when Lord Justice Edmund Davies stated that:

“there cannot be a conviction for entering premises ‘as a trespasser’ within the meaning of S9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent”.

I believe that Helen knew that she would not be welcome to enter the bathroom and therefore knew that she would be acting as a trespasser or was reckless as to whether she was. She acted in excess of her permission and therefore I believe that the courts would be able to find her guilty of Burglary or if they felt they were unable to then the crime of Theft.

The Bicycle
From the facts of the case we can see that the third issue concerns the possible Theft of the Bicycle. The facts of the case state that “Without asking, Helen borrows Margaret’s bicycle to go to the store.” Is this therefore a possible case of Theft. Theft requires that the D “dishonestly appropriates property belong to another with the intention of permanently depriving the other of it.” We can see instantly that appropriation, property and “belong to another” have already been met, however the issue of Dishonesty may be applicable as will the intention to permanently deprive Margaret of the bicycle.
As earlier stated to discover whether dishonesty was present the Ghosh Test arising from Ghosh 1982 can be used. I believe that if the Jury were to look into the issue of dishonesty they would hold that under the Ghosh Test, Helen had actually been dishonest in her actions and was aware of her dishonesty - which can be seen by the fact that she fails to ask whether she is allowed to use the bicycle. However, Helen may claim that in fact she was not being dishonest under S2.1b of the Theft Act were it is held that there is no dishonesty if a person takes property with the belief that the other would consent to them doing so. Helen could claim that she believed that Margaret would consent to her taking the bicycle because she is running an errand for her. Therefore she may be able to not be convicted of Theft because the issue of Dishonesty can be disproved.
The Second element however is with regard to whether Helen had the “intention to permanently deprive” Margaret of the bicycle under S6 of the Theft Act 1968. Under the Definition of this phrase in S6.1 it is stated that this phrase will be fulfilled if the D’s:

“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 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 may claim that in fact she had merely intended to borrow the item from Margaret for a short period of time not actually amounting to an outright taking or disposal. Helen borrowed the item to enable her to get down the shops, but only to buy the groceries for Margaret. The case of Lloyd, Bhuee and Ali 1985 is an interesting authority with regard to borrowings. In this case one of the D’s was a projectionist at a cinema and over a few months removed films from the cinema so that the other two D’s could make copies of them and sell on pirate copies of them. Films only left the premises for a maximum of 3 hours and continued until the D’s were caught carrying out the act. It was in this case held that the intention to permanently deprive had not been fully present as the items involved were never damaged or broken. They lost no real value. In the case the court of Appeal stated that in fact:

“The goodness, the virtue, the practical value of the films to the owners has not gone out of the article…The borrowing, it seems to us, was not for a period, or in such circumstances as to make it equivalent to an outright taking or disposal.”

The D’s convictions were dropped. Therefore it can be seen that or a person to be held as permanently depriving the V they must in fact remove all goodness from the item. This is backed up by the case of Bagshaw 1988 involving the Theft of two glass cylinders. The courts backed up this approach stating that the D could not actually be convicted unless he had utilised “all goodness from them”.
Helen has borrowed the bicycle from Margaret however no damage has been done to them and no goodness has been removed from the bicycle. The bike was borrowed only for a short amount of time and therefore not enough to amount to “a period” and therefore I believe that Helen would not be convicted of Theft of the bike. If however she had damaged the bike or punctured a tyre the result may well have been different.

The DVD
There are two issues regarding the DVD. The first is whether it in fact amounts to an appropriation of the property, the second is whether it is a case of Robbery due to the case facts. In the facts it states that Helen switches the price labels on an expensive DVD with one with a cheaper label. She then approaches the till and is confronted by the Manager who has witnessed her action on CCTV. So it is fairly obvious that she has fulfilled a number of element of the definition of Theft. Her actions were dishonest and this could be established by the Ghosh Test, the goods are property, it belongs to another (the store owner), and she evidently intended to permanently deprive the owner of the £5 difference in the price. However can the switching of the price labels amount to an appropriation? This area has been frequently examined by the courts and has substantially developed over case law.

The statute suggests that “any assumption by a person of the rights of an owner” is enough to amount to an appropriation of the rights of the owner. However case law has carefully looked into this point in the cases: Morris; Anderton v Burnside 1984, Lawrence v MPC 1972 and Gomez 1993. In Morris; Anderton v Burnside 1984 the D’ had changed the prices of goods in a supermarket so that the new prices were much cheaper than the original. When one of the D reached the till they paid for the goods and was then arrested whilst in the other the D did not actually have the chance to pay for the good because he was arrested once he actually arrived at the till. In the cases the House of Lords held that it was immaterial that the D’s had not actually assumed all of the owners rights. It was held that the switching of the price labels amounted to at least one assumption of the right of an owner and was therefore enough to amount to an appropriation of the property.
In Lawrence v Metropolitan Police Commissioner 1972 it was held that even when an appropriation is consented to or permitted to take place, it is still able to be a case of theft. In this case the D was a taxi driver who removed £6 form the wallet of an Italian Student when the actual cost of the ride was £1. He was held to be guilty even though the student had consented to him removing the money.
Gomez 1993 is by far one of the most important cases concerning appropriation. In this case it was stated that by Lord Keith that with regard to the matter of price labels:

“the switching of the price labels on the article is in itself an assumption of one of the rights of the owner, whether or not it is accompanied by some other act such as removing the article from the shelf and placing it in a basket or trolley. No one but the owner has the right to remove the price label from an article or to place a price label on it.”

When we loom at the ratio of the case we can therefore see that the act of switching the price labels is an act of assumption of the rights of the owner. It does not matter if the D then took it to the till or placed it back on the shelf. The D has already assumed one of the rights of the owner and therefore under the case precedent established under Gomez 1993 and Lawrence 1972 and Morris 1984, Helen can be convicted of theft for switching the price labels on the goods. It matters little that she was challenged before she actually paid for the goods. She has committed theft. The question which must now be considered is whether she has actually committed robbery which could result in a sentence of life imprisonment?
A person will be guilty of Robbery under S8 of the Theft Act 1968 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 requires therefore that the elements of Theft have already been fulfilled. This is so, and accompanied with force it will amount to robbery. We can see that Helen pushes the manager out of the way. Under the case of Dawson 1976 it was held that a simple jostling of a victim could actually result in a conviction for robbery and therefore surely Helens push would result in a view that this was in fact force. Clouden 1987 also held that when a D had wrenched a bag from the victims hands using both of his, it was able to result in a conviction for robbery. Under these cases it was established that force is an ordinary word which juries are able to understand and is ordinary use. Therefore Helen would not be able to dispute the actual meaning of the word force. Finally in Corcoran v Anderton 1980 it was held that the forcible tugging of a handbag was enough to amount to force used and therefore robbery. It did not matter if the bag was never taken away or even if the D’s never actually had sole control of the bag. It is a case of Robbery.
Hale 1978 also established that the Theft amounting to Robbery can be a continuous act and therefore if a person steals and then uses force to effect their escape and few minutes later, then this would be a crime of robbery. Question does have to be put into how long a continuous act can last? For example if the act was committed the previous day and then force applied then this could surely not be a case of robbery.
Therefore I believe that Helen would under the Statute and Case law be able to be convicted of Robbery with regard to the DVD. The elements of Theft and Robbery were both established. Therefore Helen is guilty of this act.

The £2 Change
The final act that must be considered is that Helen kept the £2 change which was left over when she purchased the groceries for Margaret. We can see that it is obvious that Helen has been dishonest in her actions and that she has appropriated Margaret’s money. The money is evidently property and she evidently intends to permanently deprive her of the good. However could she claim that the money actually belongs to her. S5.1 states that “property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest”. The money is originally Margaret’s however Helen may claim that she is holding money for a particular usage and therefore she was dealing with the money. However case law such as Wain 1995 suggest otherwise. In this case it was held that the D who had raised money for a charity and then failed to pay them the money was, “under an obligation to retain, if not the actual notes and coins, at least their proceeds, that is to say the money credited in the bank account …when he took money credited to that account and moved it over to his own bank account, it was still the proceeds of the notes and coins donated which he proceeded to use for his own purposes, thereby appropriating them…” Therefore it is obvious that Helen is under an obligation to return the money however has failed to do so and is therefore guilty of appropriating the property and committing theft. She may claim that she is willing to pay the change back however under S2.2 of the Theft Act 1968 the person will still be labelled dishonest. Therefore Helen would be convicted of Theft of the £2 change also.

Conclusion
In conclusion, Helen would be convicted of both Burglary, with regard to the Perfume and Robbery with regard to the DVD, and Theft of the £2 change. It is not impossible that she would be convicted of the other offences either.

Bibliography:
Roe, D. “Criminal Law 3rd Edition” 2005, Hodder Arnold
Herring, J. “Criminal Law, Text, Cases and Materials” 2004, Oxford University Press
Special Study Materials
www.peterjepson.com - Past Essays

Case List
Holden 1991
Robinson 1977
Small 1988
Morris; Anderton v Burnside 1984
Lawrence v MPC 1972
Gomez 1993
Ghosh 1982
Hillen & Pettigrew v ICI (Alkali) Ltd 1936
R v Collins 1973
Lloyd, Bhuee and Ali 1985
Bagshaw 1988
Dawson 1976
Clouden 1987
Corcoran v Anderton 1987
Hale 1978
Wain 1995