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Criminal Law Exam
Theft, Burglary and Robbery
Theft is committed where the defendant has dishonestly appropriated property belonging to
another with intention to deprive the other of it permanently
...
The offence is
also committed where the defendant causes the victim to fear that force will be used, but does
not actually use force
...

The offence can be broken down into 5 elements:
1
...
Property;
3
...
Dishonestly;
5
...

• The Actus reus of theft is, therefore, appropriating property belonging to another
...

Section 4 (1) of the Theft Act 1968 defines property: Property includes money and all
other property, real or personal, including things in action and other intangible property
...
For instance debt
...


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Land cannot be stolen
...
Where the defendant is acting as a trustee or personal representative
...

This means that if the defendant is a trustee and is authorised to sell some land he can be
convicted of theft if he sells more land than he is authorised to do
...
Things found on a piece of land fall into one of the two categories: they either do or do
not form part of the land
...
Things that are
moveable are not part of land are property for the purpose of theft
...
To understand the law in this area it is necessary to
distinguish between those who are in possession of the land, those who are tenants and
those who are not in possession of the land: (a) those who are in possession of the land,
including land owners
...
Therefore, an owner of a house does not commit theft if he or she picks flowers
from his or her garden
...
Such people are dealt with under Section 4 (2)
(b)
...
’ So if a trespasser removed
something that formed part of the land, could be theft
...
It could
not be an offence for a tenant to remove something that formed part of the land he was
renting unless what he removed was a fixture or structure
...
It includes a staircase or a wall, but not a plant or
gravel
...
Special rules relate to fruits and plants from the land
...
’ These rules apply only to
those who are not in possession of land
...
There are
3 important restrictions here:
1
...

2
...

3
...
for commercial purposes is guilty of an
offence
...
Someone who picks the
blackberries to sell at a market stall is
...

• The key distinction drawn in this section is between tamed creatures (pets), wild creatures
kept in captivity (wild animals in a zoo) or reduced into possession and wild creatures not in
captivity
...
Similarly, wild animals
kept in captivity or reduced into possession can be stolen
...


Information is not property
...
The Court of Appeal quashed a conviction for
theft as confidential information cannot be stolen
...
It should be
noted that the Computer Misuse Act 1990 creates special offences which deal with people
accessing confidential information held on computers
...
‘A person who dishonestly uses without due authority, or dishonestly causes
to be wasted or diverted, any electricity shall on conviction on indictment be liable to
imprisonment for a term not exceeding five years’
...
However, this view is coming under challenge, and it is now accepted that
sometimes these can be property
...
If a corpse is reduced to another’s possession or control it becomes property
...

2
...
In Welsh (1974), a man gave a urine sample to the police, and then ran
off with it
...
So blood stored at a blood bank or
sperm stored at an infertility clinic can be regarded as property
...

3
...


In Yearworth v North Bristol NHS Trust (2009), the Court of Appeal held: that the
traditional approach to ownership of bodies was outdated
...
The court did not go into detail
about when precisely ownership in bodily products retained
...
Later cases will give further clarity
to the law
...
Parliament has
passed legislation to tackle dishonest dealings with things that are not property for the
purposes of theft, such as the Human Tissues Act 2004, which governs body parts
...
Sometimes property belongs to no-one
...

However, there are some breadline cases and these are dealt with by four subsections of
Section 5 of the Theft Act 1968:

Section 5 (1) states: ‘Property shall be regarded as belonging to any person having possession or control of
it, or having in it any proprietary right or interest (not being an equitable interest arising only from an
agreement to transfer or grant an interest)
...
In R (Ricketts) v Basildon Magistrates’ Court (2010), a
defendant’s conviction of theft of property left outside a charity shop was upheld
...
For the second, bags of clothes had been left in a storage bin at the back of the
shop
...
The first charge related to bags left on the pavement
outside of the shop
...

The donor of the bags had not abandoned them, as they intended them to be a gift to the
shop, rather than a gift to anyone passing by
...
It should be added that the possession or control does not have to be lawful
possession or control
...
A further significance of this
is that the owner can be convicted of theft of his own property
...
He was convicted of theft of his car
...


Section 5 (2) states: ‘Where property is subject to a trust, the persons to whom it belongs shall be regarded
as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded
accordingly as an intention to deprive of the property any person having that right
...
However, this subsection deals with the property of

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trusts which do not have beneficiaries
...


Section 5 (3) states: ‘Where a person receives property from or on account of another, and is under an
obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or
proceeds shall be regarded (as against him) as belonging to the other’ This subsection deals with the
situation where a defendant is given property and is under an obligation to deal with that
property in a particular way
...
The
obligation must be a legal obligation: a moral obligation is not enough
...
He paid the money into the firm’s general account
...
He was convicted of theft, but
appealed, arguing that the money did not belong to another and section 5 (3) did not apply
...
The appellant submitted that in the circumstances arising in these 7 cases there
arose no such ‘obligation’ on the appellant
...
5 “Belonging to another”/ provides for special case where
property is transferred to a person to retain and deal with for a particular purpose and he misapplies it or its
proceeds
...
The person in question is in law the owner of
the property; but the subsection treats the property, as against him, as belonging to the persons to whom he owes
the duty to retain and deal with the property as agreed
...
’
A submission for the appellant was made that the position of a treasurer of a solitary fund is
quite different from that of a person like the appellant, who was in general (and genuine)
business as a travel agent, and to whom people pay money in order to achieve a certain object
- in the present cases to obtain flights to America
...
Indeed the appellant throughout

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acknowledged that this was so, although contending that in some of the 7 cases it was the
other party who was in breach
...
But, in
our judgement, what was not here established was that these clients expected them ‘to retain
and deal with that property or its proceeds in a particular way’, and that an obligation to do
so was undertaken by the appellant
...
Cases could, we suppose, conceivably arise where by some special arrangement,
the client could impose on the travel agent an ‘obligation’ falling within S5 (3)
...
It is true that in
some of them documents were signed by the parties; thus, in respect of counts 1 and 3
incidents there was a clause to the effect that the People to People organisation (the appellant
firm) did not guarantee to refund deposits if withdrawals were made later than a certain date;
and in respect of counts 6,7 and 8, the appellant wrote promising ‘a full refund’ after the
flights paid for failed to materialise
...
It
follows from this that, despite what on any view must be condemned as scandalous conduct
by the appellant, in our judgement on this ground alone this appeal must be allowed and
convictions quashed
...
The clients
expected the travel agent to buy tickets for them, but not using the particular monies they
provided
...
In the leading case of
Wain (1995), a defendant collected money for ‘The Telethon Trust’, but did not pass the
proceeds on to a charity and transferred the money into his own account
...


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Section 5 (4) states: ‘Where a person gets property by another’s mistake, and is under an obligation to
make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of
that obligation the property or its proceeds shall be regarded (as against him) as belonging to the person entitled
to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive
that person of the property or proceeds
...


Appropriation is a key element in the law of theft
...
’
The HOL had to consider the interpretation of appropriation 4 times since the 1968 Act was
passed
...

1
...

This means that if the defendant has done something that an owner has the right to do so
then this is an appropriation
...
It must be shown that the fact the act is something
that only an owner has the right to do so
...
Similarly,
just making the defendant deal with his or her property in a particular way does not
amount to appropriation
...
In Morris, the defendant
appropriated items by switching the sticky labels on items in a shop indicating their price
...
If a person walks into a supermarket and
touches a tin of baked beans intending to steal it, theft is committed there and then
...
A touching of a piece of property is an appropriation, whether the victim consented,
requested or objected to the act
...
This was confirmed in Gomez decision
...

The leading case on interpretation of appropriation is R v Gomez (1993), Gomez
was the assistant manager of a shop
...
Gomez was aware the cheques were stolen, but
persuaded the manager of the shop to accept them by lying and saying that the cheques were
‘as good as cash’
...
At his trial he argued that there was no case
to answer because the transfer of the goods had been consented to by the manager and there
could therefore be no appropriation
...

Lord Keith - the Court of Appeal granted a certificate under section 33(2) of the
Criminal Appeal Act 1968, that a point of law of general public importance was involved
in the decision, namely: ‘When theft is alleged and that which is alleged to be stolen passes to the
defendant with the consent of the owner, but that has been obtained by a false representation, has (a) an
appropriation within the meaning of the section 1 (1) of the Theft Act 1968 taken place, or (b) must
such a passing of property necessarily involve an element adverse with or usurpation of some right of the
owner?’
He also analysed the speeches in the HOL decision in Lawrence (1972), first, that there is no
longer an ingredient of the offence of theft that the taking should be without the owner’s
consent and second, that an appropriation may occur even though the owner has permitted
or consented to the property being taken
...
In the first place it seems to me that
the switching of 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 basket or trolley
...
If
anyone does so, he does an act
...
This is no less so in the case of the practical joker figured by Lord

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Roskil, than in the case of one who makes the switch with dishonest intent
...
On the facts of the 2 cases, it was unnecessary to decide whether,
the mere taking of the article from the shelf and putting it in a trolley or other receptacle
amounted to the assumption of one of the rights of the owner, and hence an appropriation
...
Indeed, Reg
...
It does not appear to me that any sensible distinction can be made
in this context between consent and authorisation
...
The taking amounted
to an appropriation within the meaning of section 1 (1) of the 1968 Act
...

Lord Browne-Wilkinson, agrees with Lord Keith and adds to consider the cases on thefts
from companies to which we were referred in the course of argument
...
The obiter dicta by the HOL in Reg
...
The
concept of adverse interference with or usurpation of rights introduces into the word
appropriation the mental state of both the owner and the accused
...
The
concerns of the mental state of the accused, the composite phrase in section 1(1) itself
indicates that the requirement is dishonesty
...
It is impossible to reconcile the decision in Lawrence (that
the question of consent is irrelevant in considering whether there has been an appropriation)
...


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Another leading case is R v Hinks (2001), Hinks made friend, John described as naive, a
trusting man of limited intelligence
...
Hinks received a total of
£60,000
...
She appealed
on the basis that the judge should have given the jury a clear direction that there could not be
theft if the transfer had constituted a valid gift
...
The certified question before the House was as
follows: ‘Whether the acquisition of an indefeasible title to property is capable of amounting to an
appropriation of property belonging to another for the purpose of section 1 (1) of the Theft Act 1968
...
Before the
enactment of the Theft Act 1968, english law required a taking and carrying away of the
property as the actus reus of the offence
...

The effect of the decisions of Lawrence and Gomez is to reduce the actus reus of theft to
‘vanishing point’
...
Moreover, it was argued that the decisions in those 2 cases may produce absurd and
grotesque results
...
He did not suggest that the
appellant’s dishonest and repellent conduct came within such a category
...
A gift;
2
...
There is an enforceable contract;
4
...

At first glance, these may seem telling examples
...
The House
ruled otherwise and overlooked the consequences of its decision
...
Moreover, in such cases a prosecution is hardly likely and if
mounted, is likely to founder on the basis that the jury will not persuaded that there was
dishonesty
...
A matter of judgement is then involved
...
If the law is restated by adopting a
narrower definition of appropriation, the outcome is likely to place beyond the reach of the
criminal law dishonest persons who should be found guilty of theft
...


My lords, if it had been demonstrated that in practice Lawrence and Gomez were calculated
to produce injustice that would have been a compelling reason to revisit the merits of the
holdings in those decisions
...
In practice, the mental
requirements of theft are an adequate protection against injustice
...
A person does not
appropriate property, unless the other (the owner) retains, beyond that instant of the alleged
theft, some proprietary interest or the right to resume or recover some proprietary interest
...
It must be rejected
...
This submission is an invitation to interpolate a word in the carefully created
language of the 1968 Act, which runs contrary to the decisions of Lawrence and Gomez and
must also be rejected
...


Lord Hutton (dissenting), the question arises, whether it is appropriate in this case for the
House to consider the element of dishonesty
...
My
Lords it appears contrary to common sense that, a person who receives money or property as
a gift could be said to act dishonestly, not matter how ordinary and decent people would

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think, it morally reprehensible for that person to accept the gift
...

It follows, a fortiori, that a person’s appropriation of property belonging to another should
not be regarded, as dishonest if the other person actually gives the property to him
...
I further, consider
that the judge must make it clear to the jury that they cannot convict unless they are satisfied
(1) that the donor did not have the mental capacity to make a gift and (2) that the donee knew
of this incapacity
...
Accordingly, for the reasons which
I have stated, I would allow the appeal and quash the convictions
...


These cases were remarkably controversial, however they make for an easy definition of
appropriation
...
Whether or
not the contract was void or voidable at common law is irrelevant to the question of
appropriation
...
’ However,
to amount to this, it may be necessary to show that the defendant has kept the property for
a significant length of time
...
He later, discovered it was stolen
...
The Divisional Court quashed his conviction for theft on the basis that he had not
appropriated it since discovering that it was stolen (and therefore dishonest)
...
as owner’ for the purposes of section 3 because he
kept it only for a few days
...
An individual can appropriate a piece of property any number of times until he
steals it
...
The significance of this tends to be in jurisdictional issues: In Akapu (1994), the
defendants hired the car in Germany, then decided to steal the car, drove it to England and
were arrested
...
They appropriated it the moment they dishonestly decided permanently to
deprive the owner of the car they were not continuing to steal it whether they drove it
...
This section applies, only where the defendant has
acquired the property by way of purchase
...


Intention to permanently deprive
The core meaning of the requirement that the defendant must intend permanently to deprive
is straightforward, - section 6 of the Theft Act 1968 applies
...
A few points should addressed in relation
to the meaning of this requirement:
• The defendant must intend to deprive victim of the item
...
This point is backed up by section 1 (2) of the
Theft Act 1968: ‘It is immaterial whether the appropriation is made with a view to gain, or is made
for the thief ’s own benefit’
...

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• It does not need to be shown that the defendant intended to deprive the owner of the
property by the act of appropriation
...
To avoid any difficulties an attempted theft charge may be
best in cases of this kind
...
(2) Without prejudice to the generality of
subsection (1) above, where a person, having possession or control (lawful or not) of property belonging to
another, parts with the property under a condition as to its return which he may not be able to perform, this (if
done for purposes of his own and without the other’s authority) amounts to treating the property as his own to
dispose of regardless of the other’s rights
...
The section can
apply to the following circumstances:

• Throwing taken items away - in Mitchell (2008), the defendants took the victim’s car
and abandoned it a few miles from the victim’s house in a street with the hazard lights on
...
It was emphasised that there was no attempt to
conceal the car
...

• Selling the item back to the victim - one may try to argue that he did not intend to
permanently deprive i this circumstance, as the victim can buy property back however, this
argument is invalid because of section 6 (1) of the theft act
...
However, in Michell (2008), the defendants took the victim’s car
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and abandoned it a few miles from the victim’s house in a street with hazard lights on
...
It was emphasised that there was no attempt to
conceal the car
...

• Returning the property in an impoverished state - this is covered by section 6(1)
which states that if the borrowing is ‘equivalent to an outright taking or disposal’ then this
amounts to permanently deprive
...
In DPP v SJ, PI, RC (2002), the
defendants took the victim’s headphones, snapped them, and returned them
...
It did not need to be shown the property had been
exhausted for section 6 to apply; it was enough that the property had lost its usefulness and
therefore guilty of theft
...

• Risking the property - If the defendant gambles the victim’s property or invests it in a
risky investment the defendant will be treated as intending to deprive the victim of it
...
They then resold the tickets
on to other customers at a cheap price
...
They
appealed on the basis that it could not be said that they intended permanently to deprive
London underground of the tickets
...
They intended either to return
them directly to London Underground Limited or to do so through the third party buyer without resale to London
Underground Limited and without any loss in the virtue of the ticket when returned
...
When returned to London Underground Limited they
had no more and no less value than when they were originally purchased
...

It was submitted section 6 (1) of the Theft Act 1968, did not apply as that was only to be
resorted to where there was a resale of the property to the original owner
...

The submission made on what is accepted to be the single issue in the appeal depends in part
upon the misrepresentation that the ticket forms would necessarily find their way back into
the possession of London Underground
...
As mentioned, we are content to deal with this appeal on a similar basis
...
Reference to the
commentary of Professor Smith to the case of R v Mitchell (1993), noting this case involves cheques and for
my part, I am not prepared to extend to the underground what the High Court have founded in relation to the
cheques
...

Lord Justice Mantel said: On its face the subsection (1) would seem apt to cover the facts of
the present case
...
It was appropriated by an
appellant
...
By acquiring and reselling the ticket the appellant has an intention to treat the ticket as his own to dispose of
regardless of London Underground’s right
...
Thus the first
part of section 6 (1) seem to us to be aimed at the sort of case where a defendant takes things and then offers
them back to the owner for the owner to buy if he wishes
...
So by

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parity of reasoning with that advanced by Lord Goff in R v Preddy & Others (1996), the
property acquired belonged to the customer and not London Underground of the ticket
which would in due course be returned to the possession of London Underground
...

A ‘chosen in action’ is a known legal expression used to describe all personal rights of
property which can only be claimed or enforced by actions, and not by taking physical
possession
...
Under that contract each party has rights and obligations
...
Therefore, it is arguable we suppose, that by the
transaction each party has acquired a chose in action
...
On the side of London Underground it encompasses the right to insist that the ticket
is used by no one other than the purchaser
...
But here the charges were in relation to the
tickets and travel cards themselves and a ticket form or travel card may find its way back into
the possession to the point
...
The
appellants by their pleas having acknowledged that they were acting dishonestly; it seems to us
that there is no reason to consider the convictions unsafe and these appeals must be dismissed
...


Parliament has created some special offences to deal with temporary deprivations which are
seen as sufficiently serious to justify a criminal conviction, even if they don't constitute theft
...
The starting
point is Section 2 of the Theft Act 1968 which states:
(1) A person’s appropriation of property belonging to another is not to be regarded as
dishonest (a) if he appropriates the property in the belief that he has in law the right to deprive the
other of it, on behalf of himself or a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the
other knew of the appropriation and the circumstances of it; or

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(c) (except where the property came to him as trustee or personal representative) if he
appropriates the property in the belief that the person to whom the property belongs
cannot be discovered by taking reasonable steps
...

This section defines 3 circumstances in which a person in not dishonest:

• Section 2 (1) (a): the defendant’s belief that he has the right to deprive the owner
of property - if the defendant believes he or she is legally entitled to deal with property as
he does then there is no dishonesty
...
In Skivington (1968), a man
held up a wages clerk, demanding his wife’s wages
...
This section applies only where the defendant has a
belief (even an unreasonable one) that he or she has the right in law to deal with the
property
...
This might lead to a finding of not being dishonest on the basis of the common
law definition of dishonesty
...
This subsection
is most likely to apply where the defendant and the victim are friends
...
It should
be stressed that the issue here is not whether the owner does in fact consent, but whether the
defendant believes that the victim would consent
...

• Section 2 (1) (c): belief that the owner could not be found - This section deals with
the situation where a person finds property which he believes has been abandoned
...
If the defendant
believes that the owner cannot be found then there is no theft
...
Section 2 (2) reiterates that
merely intending to pay for an item does not negate theft
...
He was convicted of offences contrary under sections 15
(1) and 20 (2) of the Theft Act 1968
...
He appealed on the basis that the judge’s direction on dishonesty had been wrong
...

Take for example a man who comes from a country where public transport is free
...
He gets off without paying
...
His mind is clearly honest
...
It seems to us that in using the word ‘dishonestly’ in the theft act 1968, Parliament
could not have intended to catch dishonest conduct in that sense, that is to say conduct to
which no moral obloquy could possibly attach
...
All the matters covered by section 2 (1) relate to
the belief of the accused
...
A man’s belief and his
willingness to pay are things which can only be established subjectively
...

If we are right that dishonesty is something in the state of mind of the accused, then if the
mind of the accused is honest, it cannot be deemed dishonest merely because members of the
jury would have regarded it as dishonest to embark on that course of conduct
...

There remains the objection that to adopt a subjective test is to abandon all standards but
that of the accused himself, and to bring about a state of affairs
...
It is no defence for a man to say ‘I knew that
what I was doing was dishonest
...
But if he believed, or
raises a real doubt about the matter, the jury cannot be sure that he was dishonest
...
If it was not dishonest by those standards, that is
the end of the matter and the prosecution fails
...

Cases which might be described as borderline, such as Boggein v Williams (1978), will depend
upon the view taken by the jury as to whether the defendant may have believed what he was
doing was in accordance with the ordinary man’s idea of honesty
...

As far as this case is concerned, it seems to us that once the jury had rejected the defendant’s
account in respect of each count in the indictment, the finding of dishonesty was inevitable,
whichever of the tests of dishonesty was applied
...

In so far as there was a misdirection on the meaning of dishonesty, it is plainly a case for the
application of the proviso to section 2 (1) of the Criminal Appeal Act 1968
...

After Ghosh, there are 2 separate questions which the jury must consider to decide whether
or not the defendant is dishonest:
1
...
Would the defendant realise that reasonable and honest people would regard
what he did as dishonest?
If the answer to both questions is ‘yes’, then the defendant is dishonest
...
Although, this is the full test for
dishonesty, the courts have made it clear that it need not be used in every case
...
Also Ghost
direction is not needed if the case is one of such obvious dishonesty that a jury could not
believe a defendant who said he or she thought that the conduct was not dishonest
...
The standards of honesty of the ordinary person are a matter for the jury
...
Further, jury members should not ask whether
they themselves regard the conduct as dishonest, but consider whether ordinary people
would regard it as dishonest
...
It is irrelevant whether the defendant believes that his conduct is dishonest: what matters
is whether the defendant’s conduct was dishonest according to the standards of
reasonable and honest people and whether the defendant thought reasonable people
would regard his conduct as dishonest
...
There may be a difference between being praiseworthy and being dishonest
...


Lord Lane appeared to address one major difficulty in interpreting the Ghost test: ‘Take the
man who comes from a country where public transport is free
...
He gets off without paying
...
His mind is
clearly honest; but his conduct, judged objectively by what he has done, is dishonest
...
Of course, he cannot believe that most people would
regard it as honest to leave a bus without paying in country where one has to pay for public
transport, but he believes it is free then he is not dishonest
...
It is not
limited to theft, and can involve involve entering a building with intent to commit crimes
other than theft
...


Section 9 (1)(a) states that: entering a building as a trespasser with an intent to commit one
of the following in the building:
(a) theft;
(b) criminal damage; or
(c) infliction of grievous bodily harm;

Section 9 (1)(b) states that: having entered a building or part of a building as a trespasser,
committing either:
(a) theft or attempted theft; or
(b) infliction or attempted infliction of grievous bodily harm
...


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• If the defendant enters as a trespasser and steals, he will be guilty of both forms of burglary
...

Definition of a building: a building must involve a permanent structure
...
Contrast this case with that of Norfolk Constabulary v Seeking and
Gould (1986), whereby a large container that formed the rear part of a lorry was held not to
be a building
...
The rational behind this is to include houseboats and caravans
...


A defendant can only enter a building or parts of the building with the consent of its owner
and therefore, any unauthorised entrance (trespass) with intent to steal will amount to
burglary
...
Contrast this case with of Ryan (1996), when the Court of Appeal rejected the
argument that the test should be wether there was a sufficient amount of the defendant’s body
inside the building to enable him to commit one of the crimes under section 9 of the 1968
Act
...
In R v Collins (1973), the legal issue was whether
the owner’s daughter had invited the defendant into the house before he entered the property
...


R v Collins (1973), Collins was drunk and was ‘desirous of having sexual intercourse’
...
He fetched a ladder,
removed all his clothes, climbed up and pulled himself onto the window sill
...
He joined
her in bed and they had sexual intercourse
...
He was charged with burglary with intent to rape
...
There was no clear evidence of where on the sill the defendant was when the victim
welcomed him in
...
Lord Justice Edmund Davies
gave the following judgement: under Section 9 Theft Act 1968, renders a person guilty of
burglary if he enters any building or part of a building as a trespasser and with the intention
of committing rape, the entry of the appellant into the building must first be proved
...
Secondly it must be proved that he entered
as a trespasser
...

The second ingredient of the offence - the entry must be as a trespasser - is one which has
not, to the best of our knowledge, been previously canvassed in the courts
...
A new test was introduced as a result, namely the entry must be ‘as a
trespasser’
...
Nor will it make any difference that the
entry was the result of a reasonable mistake on the part of the defendant, so far as trespass is concerned
...
If Archbold is right, he would
nevertheless be a trespasser, since the apparent consent of the girl was unreal, she being
mistaken as to who was at her window
...

In the judgement of this court, there cannot be a conviction for entering premises ‘as a
trespasser’ within the meaning of Section 9 Theft Act 1968, unless the person entering does
so knowing that he is a trespasser and nevertheless deliberately enters, or at the very least is
reckless whether or not he is entering the premisses of another without the other party’s
consent
...
That in turn involves consideration as
to whether he was at the time that the complaint indicated that she was welcoming him into
her bedroom
...

!25

Having considered the trial judge direction Edmund Davies LJ, we do not think the trial judge
by these observations made it sufficiently clear to the jury the nature of the second test about
which they had to be satisfied before the appellant could be convicted of the offence charged
...
But what the appellant said: ‘She knelt on the
bed, she put her arms around me and then I went in’
...
If she in fact
appeared to be welcoming him, the Crown do not suggest that he should have realised or
even suspected that she was so behaving because, despite the moonlight, she thought he was
someone else
...
But this is a criminal charge of gravity and even though one may suspect
that his intention was to commit the offence charged, unless the facts show with clarity that he
in fact committed it he ought not to remain convicted
...

This appeal was allowed on the basis that the jury were never invited to consider the vital
question whether this young man did enter the premisses as a trespasser, that is to say
knowing perfectly well that he has no invitation to enter or reckless of whether or not his
entry was with permission
...
appeal allowed
...


!26

• Acting in excess of permission: where the defendant has been given permission to
enter a building for a particular purpose, but acts in excess of this permission
...

• Consent to enter based on a mistake: the position in civil law is that if the consent is
provided following the mistake, such as for instance identity of the individual, then consent
is invalid
...
However, it must be shown
that the defendant knew that he/she was a trespasser
...

• The Mens Rea of a trespasser: to be guilty of burglary defendants must know that they
are trespassers or be reckless
...

However, it does not require the evidence that defendants understand the law of trespass
and are aware that they may be committing trespass
...

R v Jones; R v Smith (1976), both cases are about burglary
...
Lord Justice James gave the following judgement: the argument for the
appellants was based on the wording of the Theft Act 1968, Section 9 (1)(b)
...
Entry as a trespasser was new in 1968 in relation to criminal offences
of burglary
...
Counsel for the appellants argues that a person who
had a general permission to enter premisses of another person cannot be a trespasser
...
Taking the law as
expressed in Hillen and Pettigrew v ICI (Alkali) Ltd (1936) and in Collins, it is our

!27

view that a person is a trespasser for the purpose of Section 9 (1)(b) Theft Act 1968, if he
enters premisses of another knowing that he is entering in excess of the permission that has
been given him or, being reckless whether 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 is 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
...
Alfred
Smith to his son Christopher
...
Appeals
dismissed
...
Taking to its logical conclusion that Jones and
Smith rule would mean that entry shoplifter was a burglar because when stealing in shop, the
defendant was acting in excess of the permission of the shop owner
...
The Court of Appeal required proof that
the defendant, having entered the shop intending to steal, entered a separate part of the shop
he was not permitted to enter
...
Under Section 9 (1)(a) it must be shown that the defendant had an intention to commit
one of the listed offences at the time the defendant entered the building
...
Similarly, if the defendant entered
the building not intending to commit theft, but once inside decided to do so, there would
be no burglary contrary to section 9 (1)(a)
...


!28

2
...

Controversially the Court of Appeal in Wilson and Jenkins (1983), suggested that it
does not require the proof of any particular mens rea
...

Aggravated burglary involves a defendant whom at the time of the burglary has possession of
a firearm, an imitation firearm, a weapon of offence or an explosive
...
However, the definition of ‘weapon of offence’ is wide
...

Burglary theory: According to the Office for National Statistics, the year 2014/15, there
were 785,000 burglaries recorded by the Crime Survey for England and Wales, which shows
that the rate and fear of burglary is high and have decreased in recent years
...
However, the theft aspect is classed
as a criminal offence whereas the trespass element is civil wrong (tort)
...


!29

• Violation of the victim’s private home: Many people’s sense of identity is tied with
their home as a place they consider to be private and secure, and therefore it is not to be
invaded or cause disturbance
...


!30

Robbery
Section 8 of the Theft Act 1968 states that:

(1) 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 and puts or seeks to put any person
in fear of being then and there subjected to force
...

In essence this offence has 2 elements:

1
...
It must proved that there was use or threat of force and the word ‘force’ is to be given it
ordinary meaning by the jury
...
In Dawson (1976) it was suggested that a nudge from
the defendant while taking someone’s wallet amounted to force
...

The cases of Clouden (1987) and Corcoran v Anderton (1980) pointed out that there
if a fine line to be drawn here: - simply pulling property out of a bag would not of itself
amount to force, but pulling the item out of the victim’s grasp so that the victim body
would be moved would amount to robbery
...
This was not robbery because force was not used against
the victim’s person
...

It would be robbery for the defendant to threaten to hit a baby if her father did not hand
over his wallet
...
In B and R v DPP (2007), convictions of robbery
were upheld after the defendant threatened force and took the victim’s property, even
though the victim gave evidence that the threats had not made him fearful
...
The force must be used in order to steal and not for any other purpose
...
Therefore, accidental use of force cannot form basis of a robbery charge
...
The force must be used at the time of the theft or immediately before it
...
The
significance of this point of law was established in the case of R v Hale (1979), Robert
Hale was charged with robbery
...
Hale
covered Mrs Carrett’s mouth to prevent screaming while McGuire went upstairs and took
a jewellery box
...
The trial judge had
directed the jury to convict the appellant if they felt that by use of force or threats of force
he had stolen her property
...
Lord Justice
Eveleigh stated that: there was little doubt that if the appellant had been interrupted
after the seizure of the jewellery box, the jury would have been entitled to find that the
appellant and his accomplice assumed the rights of an owner at the time when the
jewellery box was seized
...
It is
a continuous act and it is a matter of jury to decide whether or not the act of
appropriation has finished
...
This court therefore, rejects the contention that the theft had
ceased by the time the lady was tied up
...
The question of whether a robbery took place remains
...
The act of tying her up was an
act of force used to enable them to steal
...
Summing up as a whole, based on
the facts of the case, the jury could not have thought that they were entitled to convict if
the force used was not at the time of the stealing and for the purpose of stealing
...

!32

Assault with intent to rob was created by Section 8 (2) of the Theft Act 1968
...


!33



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