CRIMINAL LAW ( PART 7 )

By Law Teacher

5.1 Property Offences – Introduction

Welcome to the sixth topic in this module guide – Property Offences! Property Offences are a category of crime that include, amongst others, theft, burglary, robbery, handling stolen goods, making off without payment, criminal damage and arson. Perpetrators who commit property offences’ primary purpose is to either unjustly enrich themselves or to acquire property or something else that would be of a benefit to them.

Property offences are riven into two categories: stolen property and destroyed property. Stolen property refers to offences such as theft and robbery, whereas destroyed property refers to offences such as arson and criminal damage. Property offences are often high in volume, with perpetrators targeting items such as such as cash, electronics and jewellery. These items are usually valuable and easy for a perpetrator to remove, conceal and re-sell.

Goals for this section:

  • To understand the actus reus and mens rea components of theft, burglary, robbery, handling stolen goods, making off without payment, criminal damage and arson.
  • To appreciate the charging and sentencing guidelines for each of the offences mentioned above.

Objectives for this section:

  • To appreciate the delineation between the offence of burglary under section 9(1)(a) and section 9(1)(b) of the Theft Act 1968.
  • To be able to identify the distinctions between simple criminal damage under section 1(1), aggravated criminal damage under section 1(2) and criminal damage by arson under section 1(3) of the Criminal Damage Act 1971; and to appreciate when the defence of lawful excuse can be established under section 5(2).
  • To be able to analyse and evaluate the nuances of all the property offences, as required in an examination.

5.2 Property Offences Lecture

1.0 Theft

The offence is set out under the s.1 of the Theft Act 1968.

1.1 Actus Reus

  • Appropriation;
  • Of property;
  • Belonging to another.

Appropriation

Section 3(1) of the Theft Act 1968 defines this.

Property

Section 4 defines property.

Belonging to another

Section 5 states that another person must have possession or control of the property for it to be considered to belong to another.

The effect of the requirement of possession or control and not simply ownership means that a defendant could be liable for the theft of his own property!

Section 5(3) states that where the possession of the property is given to another with instructions to deal with it in a certain way, the ownership in the property is deemed to remain with the giver.

1.2 Mens Rea

  • Dishonesty
  • With the intention to permanently deprive

Dishonesty

Section 2 provides a negative definition of what constitutes dishonesty.

It is important to note that these are all judged subjectively and there is no requirement that the defendant’s beliefs were reasonably held.

In addition to the above guidance, s.2(2) provides that a willingness to pay for the property will not negative any dishonesty.

Outside of the specific situations provided for by the Act, the courts apply a common law test.

With the intention to permanently deprive

The victim need not actually be permanently deprived of their property, so long as the defendant held the intention of permanently depriving them of it.

Borrowing, even without permission, will not amount to such intention as if the defendant intended to give it back then he clearly does not intend to permanently deprive.

Section 6 provides two caveats to this.

1.3 Charging and Sentencing

Theft is a triable either way offence, punishable by up to 7 years imprisonment.

2.0 Burglary

The offence of burglary is set out in s.9 of the Theft Act 1968.

2.1 Section 9(1)(a)

A defendant commits burglary under this section if they enter a building, or any part of a building, as a trespasser, with intent to either:

-steal anything in the building; or

-inflict grievous bodily harm on any person in the building; or

-do unlawful damage

2.1.1 Actus Reus

  • Enters;
  • A building or part of a building;
  • As a trespasser

Enters

It was considered that entry must be substantial and effective, however the evolvement of case law suggests this is no longer necessary.

A building or part of a building

  • Building

The Theft Act 1968 provides no statutory definition of building.

Section 9(4) does provide that an inhabited vehicles or vessels will be classed as a building.

  • Part of a Building

Entering part of a building covers situations where there is permission to be in the building, but only certain areas.

As a trespasser

This carries the same definition as for civil law trespass.

If the owner provides permission to be in the building or part of it then no trespass will occur.

2.1.2 Mens Rea

  • Intent to steal, inflict grievous bodily harm or commit criminal damage.
  • At the point of entry
  • Knowing or being reckless as to trespassing.

Intent to steal, inflict grievous bodily harm or commit criminal damage

In order for this to be satisfied the mens rea for each of the three qualifying offences must be established.

Intent upon entry

Section 9(1)(a) is wholly concerned with the intent of the defendant at the point which he enters the building or part of the building as a trespasser.

It is vital for this section that the intention is formed at the point in time of entering the building.

Knowing or being reckless as to trespassing

Often the defendant will know they are a trespasser but they may also be subjectively reckless as to whether they are.

2.2 Section 9(1)(b)

A person commits a burglary under this section if, having entered as a trespasser, he steals, attempts to steal anything in the building or inflict or attempts to inflict grievous bodily harm on any person therein.

Two things should be noted here:

(i) unlawful damage is excluded from this section as a qualifying offence.

(ii)The intention to commit one of the qualifying offences does not have to be held at the point of entry into the building.

2.2.1 Actus Reus

  • Entry
  • Into a building or part of a building;
  • As a trespasser;
  • Attempt to, or indeed does, steal or inflict grievous bodily harm.

Entry, into a building or part of a building as a trespasser

These elements carry the same definition as with the s.9(1)(a) provision.

Attempts to, or does indeed, steal or inflict grievous bodily harm.

This requires the attempt or the successful completion of one of these two qualifying offences. It is therefore necessary to establish the commission of the offence itself or in relation to the attempt, that the defendant held the mens rea for the offence.

2.2.2 Mens Rea

  • Knowing or being reckless as to trespassing
  • Holding the mens rea for either of the qualifying offences

Knowing or being reckless as to trespassing

This is applied in the same way as for the s.9(1)(a) offence.

Holding the mens rea for either of the qualifying offences

This will require establishing either:

(i) A dishonest intention to permanently deprive another of property; or

(ii) Intention to commit grievous bodily harm; or

(iii) Recklessness as to whether grievous bodily harm is committed.

2.3 Aggravated burglary

Section 10 provides when a person will be guilty of aggravated burglary.

The point at which the weapon must be possessed for the purposes of the offence depends wholly on whether the charge is under s.9(1)(a) or s.9(1)(b).

Charging and Sentencing

The s.9 offences are triable either way. In relation to the s.9 offences the maximum imprisonment is 10 years which rises to 14 years in the case of a dwelling property.

The s.10 offence is indictable only and carries a maximum sentence of life imprisonment.

3.0 Robbery

Section 8 of the Theft Act 1968 provides when a person is guilty of robbery.

3.1 Actus Reus

  • Steals, and;
  • Immediately before or at the time of stealing and in order to steal;
  • Uses or threatens force;
  • Against any person

Steals

This requires the offence of theft to be satisfied in accordance with the definition provided in s.1.

Immediately before or at the time of stealing

The case law has adopted a flexible approach under this element.

And in order to steal

According to the strict wording of the provision undue force applied at the time of the theft but not in order to effectuate it would fall outside the boundaries of robbery.

Force or threat of force

The Act negates to provide a definition of force and the requisite level of force needed for the purposes robbery. Even very slight touching can qualify.

There is no requirement that the force needs to be applied directly to the person.

3.3 Mens Rea

The defendant must possess the mens rea for the qualifying offence of theft, that is a dishonest intention to permanently deprive another of property.

3.4 Charging and Sentencing

Robbery is an indictable only offence with a maximum sentence of life imprisonment.

4.0 Handling Stolen Goods

This offence is set out under s.22 of the Theft Act 1968.

4.1 Actus Reus

Stolen goods are those goods that have been the subject of a theft of any kind. They are defined in s.24(2).

A person completes the actus reus of handling stolen goods by undertaking any of the following acts:

  • Receiving stolen goods, or;
  • Arranging to receive them, or;
  • Undertaking to keep, remove or dispose of the goods or realising those goods either for your own purposes or for the benefit of another; or
  • Arranging or assisting with any of the above.

4.2 Mens Rea

  • Dishonesty
  • Knowing or believing goods to be stolen.

Dishonesty

This carries the common law definition of dishonest set out in Ghosh.

Knowing or believing goods to be stolen

This is a subjective element.

4.3 Charging and Sentencing

Handling stolen goods is a triable either way offence with a maximum sentence of 14 years.

5.0 Making Off Without Payment

This offence is set out under s.3 of the Theft Act 1978.

5.1 Actus Reus

  • Making off on the spot when payment is required
  • Without having paid as required for goods supplied or services done

Making off on the spot when payment is required

On the spot is defined in s.3(2).

Making off was defined in R v Brooks(1983) 76 Cr App R 66.

Without having paid as required for goods supplied or services done.

Includes failing to pay as required in return for the goods or services, and is satisfied at the point the defendant fails to provide the correct remuneration needed from him.

Goods and services that are illegal are excluded in s.3(3).

5.2 Mens Rea

  • Dishonestly
  • Knowing the payment is due; and,
  • Intending to avoid the payment

Dishonestly

It is necessary to apply the Ghoshtest to establish dishonesty

Knowing payment is due

This is a subjective element.

Intending to avoid payment

If the defendant was to leave and pay at a later date, then this will be insufficient.

5.3 Charging and Sentencing

This is a triable either way offence, maximum 2 years imprisonment.

6.0 Criminal Damage and Arson

The Criminal Damage Act 1971 sets out three offences of criminal damage.

6.1 Simple Criminal Damage

Defined under s.1(1) Criminal Damage Act 1971.

7.1.1 Actus Reus

  • Destroys or damages
  • Property
  • Belonging to another

Destroys or damages

The statue negates to provide a definition for this.

If the harm done to property does not have a degree of permanence, then it is not destroyed or damaged as per the offence and no liability can arise.

Property

Defined under section 10(1) of the Criminal Damage Act 1971.

Belonging to another

Section 10(2) of the Criminal Damage Act 1971 provides when property will be taken to belong to any person in law.

7.1.2 Mens rea

  • Intention to damage property belonging to another, or;
  • Being recklessness as to whether that property is damaged.

Intention to damage property belonging to another

If the defendant honestly believes that the property is their own, then they are not liable for any subsequent damage.

Recklessness

The correct approach to this in relation to criminal damage is to apply the test set out by Lord Bingham.

7.2 Aggravated Criminal Damage

Defined under section 2 of the Criminal Damage Act 1971.

Aggravated criminal damage occurs where the offence of criminal damage has been completed, but there is an additional element present in that the destruction or damage results in an endangerment of life.

7.2.1 Actus Reus

  • Destroys or damages any property
  • Endangers life

Destroys or damages any property

Note here that for the purposes of the s.2 offence, any property is sufficient and not only property which belongs to another.

Endangers life

The test for this is set out in R v Sangha [1988] 2 All ER 385.

Any endangerment must occur as a result of the destruction of or damage to the property.

7.2.2 Mens Rea

  • Intention or recklessness as to the destroying or damaging of property, and;
  • Intention or recklessness as to the endangering of life.

Whether or not the defendant is reckless should be established in accordance with the R v G and Rtest.

7.3 Criminal Damage by Arson

Where the destruction or damage to property under either s.1(1) or s.1(2) Criminal Damage Act 1971 arises through fire, the defendant will also be liable under s.1(3) of criminal damage by arson.

7.4 Lawful excuse

Section 5(2) establishes sets out a defence of lawful excuse which can arise in two circumstances.

Section 5(3) clarifies that these are to be assessed subjectively.

7.5 Charging and Sentencing

The offence is triable either way and the maximum for all three offences is 10 years which raise to life imprisonment in relation to aggravated criminal damage and criminal damage by arson.

5.3 Property Offences Lecture

The following question will test out what you have just learned and give you the chance to put your new legal skills to the test!

Read over the scenario and try and identify the material facts and legal issues. It might help to highlight these and make notes as you go. If you’re feeling confident then try and put together an answer to the question. Everything you need to answer the question has been covered already in this unit so referring back to the notes will help you a lot!

If you aren’t ready to produce your own answer just yet, then no need to worry. These types of questions take practice and if this is your first attempt then it’s bound to be a little tricky. A step by step outline answer is set out below provided below which contains guidance for you and you can use this to try and build your own answer or use it to check the answer you have already produced.

Giles is on his way to a job interview but as he walks out of the house he realises it is raining. He sees his neighbour Jackie has left a bright pink umbrella by her gate so he picks it up to borrow for the day intending to return it later. He is sure that Jackie would be fine with this as they are good friends.

The rain gets so heavy that Giles calls for a taxi. He gets in and provides the address of the office he will be going to. When the taxi pulls up, the driver informs Giles that the meter says the fare will be £10. Giles looks in his pocket for his wallet, realises he does not have the money and cannot pay the fee so quickly runs out of the taxi and out of sight before the driver is able to react.

Shaken by the experience, Giles decides he better not risk being caught without cash again today. He sees a lady walking by on her phone and notices her purse is sticking out slightly from her pocket. He quickly grabs the purse but the lady grabs his arm as he tries to get away. He shoves her hard and runs off.

When Giles gets to the interview he is asked to wait in reception for the interviewers to call him. He sees a door marked ‘store room’ and is intrigued. He checks the receptionist is not looking and he goes in to have a look and when he gets inside he sees a stash of new iPhones waiting to be handed out to the employees as their new company phones. Giles has wanted an iPhone for ages and decides that he is not confident he will get the job so the best thing to do would be to take one now just in case. He checks no one has seen him and then puts one in his bag.

Later that day Jackie returns home and is furious that her umbrella has been taken. She has stated in evidence that she would not have allowed Giles to use it if she had known as it was a gift from her boyfriend and she is very attached to it.

Identify any possible offences committed by Giles and apply relevant law to determine his potential liability.

Umbrella

  • Possible theft as per s.1 Theft Act 1968
  • Actus reus

-Appropriation

Applying s3(1) of the Act it is evident that Giles assumes the rights of the owner Jackie by using the umbrella, an application of Morris shows that he does not need to assume all of her rights and simply using it will suffice.

-Property

In this case the umbrella fits the s.4(1) definition of personal property.

-Belonging to another

Applying s5(1) of the Act, the umbrella clearly belongs to Jackie and she has possession and control of it at the time Giles takes it. Discuss the possibility that the umbrella has been abandoned but apply Ricketts to show that it is highly unlikely the umbrella could be classed as abandoned simply because she left it outside her house.

  • Mens rea

-Dishonest

Starting with the set situations in s..2 of the Act it can be seen on the facts that s.2(1)(b) of the Act is applicable as Giles believes that Jackie would understand and allow him to us the umbrella. There is no need therefore to apply Ghosh here.

It does not matter that this belief is mistaken and that Jackie did not want Giles to use the umbrella.

-Intention to permanently deprive

It is evident that Giles did not intend to permanently deprive Jackie of the umbrella as he was only borrowing it for a short time. Under s.6 of the Act the borrowing for the day will likely be held not to be equivalent to an outright taking.

  • No mens rea is therefore present and Giles will not be liable for the theft of the umbrella

Taxi

  • Possible offence of making off without payment as per s.3 Theft Act 1978
  • Actus reus

-Makes off

Giles runs away from the taxi

-Without payment

Giles does not give the taxi driver any money for the service

-Payment required on the spot

Apply s.3(2) of the Act and in doing so, distinguish the case Aziz as in this instance the fare was due to the taxi driver there and then.

-Goods or services

The taxi ride can qualify as a service done as does not fall within the s.3(3) illegal exemption. Aziz could be used as authority here.

  • Mens rea

-Knowledge that payment is required on the spot: Giles is informed by the driver he must pay

-Dishonesty: apply Ghosh- was it dishonest according to the standards of reasonable and honest people and did Giles know this? It is likely this is satisfied.

-Intention to avoid payment: Giles ran off intending not to pay

  • Likely Giles will be liable for making off without payment.

Purse

  • Possible robbery under s8 Theft Act 1968
  • Actus reus

-Theft: s.1 Theft Act 1968, dishonest appropriation of property belonging to another with the intention to permanently deprive the other of it. There is no need to go too in depth with this as this is not the legal issue here.

-Uses force on any person

This is clearly evident on the facts and is satisfied by Giles’ pushing the lady.

-Immediately before or at the time of stealing

Upon a strict construction of the facts the appropriation had occurred prior to Giles expending any force however Hale sets out that the appropriation is a continuing act and it will be up to the jury to determine when it finishes. It is likely they will hold the appropriation to be ongoing in this instance.

-In order to steal

By pushing the lady in order to get away Giles is doing this to allow him to complete the theft and permanently deprive her of the property and therefore does so in order to steal.

  • Mens rea

–The mens rea for theft must be established here. That is that Giles acted dishonestly with the intention to permanently deprive. Apply Ghosh and state that it is clear from the facts presented that Giles intended to use the money and threw the purse away, two acts that have the effect of permanently depriving the owner of the purse.

  • It is likely therefore that Giles will be guilty of the robbery of the purse

iPhone

  • Potential burglary
  • Section 9(1)(b) is the relevant provision as the intention to steal does not arise until Giles is already in storeroom.
  • Actus reus

– Enters

Following an application of Brown and Ryan it can be seen that by Giles physically going in the room his entry will be sufficient.

-A building or part of a building

It is likely that the store room will be classed as part of a building following an application ofWalkington as it was physically separated from the reception with a door and sign.

-As a trespasser

Following Collins,he has no permission to be in the store room so this will be classed as a trespass.

-Attempts to or does indeed steal or commit grievous bodily harm

The relevant offence here is theft of the iPhone. Apply s.1 of the Theft Act 1968 to determine that the theft occurs.

  • Mens rea

-Knowing or being reckless as to trespassing

It is clear from the facts that Giles knows he shouldn’t be in there as he checks first that the receptionist is not looking.

– Dishonest and intention to permanently deprive

Apply Ghoshin relation to dishonesty and then state from the facts it is clear that Giles intended to keep the iPhone thus satisfying this.

  • It is likely therefore that Giles will be liable for the burglary under s.9(1)(b) of the Act

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