Theft and Property Offences

• The chapter covers property offenses, focusing on theft, robbery, burglary, and aggravated burglary.
• The test for dishonesty is commonly referred to as the 'Ivey test' or the 'test in Ivey v Genting'.
• Burglary with intent is often referred to by reference to the statute, namely, 's 9(1)(a) burglary'; and burglary as 's 9(1)(b) burglary'.

Theft (Section 6.2)

• Theft is a commonly reported crime, ranging from shoplifting to organized theft.
• Five elements define theft, guided by ss 2 to 6 of Theft Act 1968 (TA 1968) and supplemented by case law, especially on dishonesty.
• Theft is an either-way offense, triable in magistrates' or Crown Court, with a maximum imprisonment of seven years upon conviction.

Definition of Theft (Section 6.2.1)

• Section 1 of the TA 1968 defines theft: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
• Actus reus: appropriation of property belonging to another.
• Mens rea: dishonesty and intention to permanently deprive.

Elements of Theft

• Dishonesty (s 2 TA 1968)
• Appropriation (s 3 TA 1968)
• Property (s 4 TA 1968)
• Belonging to another (s 5 TA 1968)
• An intention to permanently deprive (s 6 TA 1968)

Actus Reus (Section 6.2.2)

• The actus reus of theft comprises "appropriation" and property "belonging to another".

Appropriation (Section 6.2.3)

• Appropriation is any assumption of the rights of an owner, broadly interpreted.
• Examples: selling a book, eating a meal in a cafe, pickpocketing a wallet.
• Appropriation includes a shopper switching a price label on a piece of meat (R v Morris [1984] AC 320), or property passing with the owner's consent (DPP v Gomez [1993] AC 442).
• The receipt of a gift can be appropriation (R v Hinks [2000] UKHL 53).

Later Assumption of Rights (Section 6.2.3.1)

• Section 3(1) of the Theft Act states that appropriation includes cases where the defendant initially comes by the property innocently but later keeps or deals with it as an owner.
• Suki borrows a book from the library in February, and then later decides to keep it permanently is an example of this.

Stealing Property More Than Once (Section 6.2.3.2)

• R v Atakpu [1994] QB 69 confirms the defendant can only commit theft of property once.

Property (Section 6.2.4)

• Property is defined in s 4 of the TA 1968 as money and all other property, real or personal, including things in action and other intangible property
• Real property refers to land and things attached or fixed to it, and personal property includes cars, jewellery, clothes, and mobile phones.
• "Things in action" are things that cannot be physically seen or touched but have value and can be legally enforced, like rights arising under a trust or money in a bank account.
• An example of intangible is a patent for a new drug.

Stealing Land (Section 6.2.4.1)

• Land can only be stolen in exceptional circumstances, for example, by a trustee in breach of trust.

What Cannot Be Stolen (Section 6.2.4.2)

• Items that cannot be stolen include electricity and confidential information.
• A Uni student who previewing an exam paper was not guilty of theft because the questions were information, which cannot be stolen.
• Mushrooms, flowers, fruit, or foliage growing wild on land cannot usually be stolen unless it’s for commercial purposes.
• Although wild creatures are excluded as property, if a wild animal is tamed or ordinarily kept in captivity, for example a lion in a zoo, it may be stolen

Belonging to Another (Section 6.2.5)

• Section 5(1) of the TA 1968 stipulates that for theft, property must belong to another.
• Property is regarded as belonging to another where any person has possession, control, or any proprietary right or interest in the property in question.
• Example: Cheung lends his mobile phone to his friend, Liu. Liu hands the phone to his partner, Xi, to look at Instagram. Joel grabs the phone from Xi and runs off. Joel has taken the property from all of Cheung, Liu and Xi.

Theft of Own Property (Section 6.2.5.1)

• A person can steal their own property, as confirmed in R v Turner (No2) [1971] 2 All ER 441.

When Ownership Passes (Section 6.2.5.2)

• Determining ownership is crucial for theft cases, especially with items like food or petrol.
• In Edwards v Ddin [1976] 1 WLR 942, it wa determined that ownership of petrol transfers to the driver once it goes into the tank.

Obligation to Deal with Property in a Particular Way (Section 6.2.5.3)

• Section 5(3) states that if a person receives property from or on account of another and is under an obligation to 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.
• Money raised by organizing events and paid into a special bank account (for a charity) but then spent on himself is an example where it had to be dealt a particular way (R v Wain [1995] 2 Cr App R 660).
• Money received from various clients to pay for flights, which went into his general business account that was not spent for that purpose is an example where no such obligation was imposed with the funds (R v Hall [1973] 1 QB 126).

Abandoned Property (Section 6.2.5.4)

• Abandoned property does not belong to another, and so it is no offence is committed with it should it be taken.

Mens Rea (Section 6.2.7)

• For a theft conviction, the prosecution must demonstrate mens rea beyond reasonable doubt.
• Mens rea involves two elements: dishonesty and an intention to permanently deprive.

Dishonesty (Section 6.2.8)

• The TA 1968 provides no working definition of the term "dishonesty", it does give a partial definition of three circumstances that will not amount to dishonesty and one circumstance that may still be regarded as dishonest, and that this guidance is still contained in s 2.
• Situations where the defendant is not regarded as dishonest defined in s 2(1) is when the person believes: he has the right in law to the property (s 2(1)(a)), the owner would have consented had they known of the circumstances (s 2(1)(b)), and the owner cannot be discovered by taking reasonable steps (s 2(1)(c))
• A person may be dishonest even though they were willing to pay for the property (s 2(2)).
• In Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 test for dishonesty: (a) ascertain (subjectively) the actual state of the defendant's knowledge or belief as to the facts, and then (b) determine whether their conduct was honest or dishonest by the (objective) standards of ordinary, decent people.

Intention to Permanently Deprive (Section 6.2.9)

• The prosecution must prove that the accused intended to permanently deprive another of the property in question, and this definition would suffice.
• However, there are some situations that are problematic, and 6 provides assistance here.

Treating the Property as the Defendant's Own (Section 6.2.9.1)

• Section 6(1) of the TA 1968 provides that an accused will have an intention to permanently deprive if 'he treats the property as his own to dispose of regardless of the owner's rights'.
• A defendant who intends to return the property to its owner, but only after it has been used, will have an intention to permanently deprive on this basis.

Borrowing as Outright Taking (Section 6.2.9.2)

• Borrowing someone else's property will not make someone a thief as there is no intention to permanently deprive.
• In R v Lloyd [1985] QB 829, the court confirmed that a more borrowing will never constitute the requisite intention to permanently deprive unless it could be said that all the 'goodness and virtue had gone'.

Parting with Property Under Condition (Section 6.2.9.3)

• Section 6(2) states that there will be an intention to permanently deprive if the person parts with the property under a condition as to its return that they may not be able to perform.
• The best example of where the section applies is in relation to pawning.

Summary of Elements Required for Robbery (Section 6.3)

• Covers a range of acts, from armed robbery with weapons to threatening someone for their phone.
• Robberies are the most common type of street crime.
• The offense is outlined is s 8 of the TA 1968: A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
• Robbery is an indictable-only offense tried in the Crown Court.
  • Actus reus and mens rea of theft.
  • The defendant uses or threatens force.
  • This occurs immediately before or at the time of the robbery.
  • The motivation is in order to steal.

The Force (Section 6.3.3)

• Determining whether sufficient force is used or threatened depends on circumstances, according to R v Dawson [1976] 64 Cr App R 170.
• Violence is not required, a simple nudging or slight pushing of the victim will suffice
• Defendants have also been found guilty of robbery despite not touching the victim, where the force was directed against property, such as a bag.

Against Whom (Section 6.3.3.2)

• The threat or use of force will usually be against the person to whom the property belongs, but it need not be so and may be against 'any person' according to s 8.

When it Occurs (Section 6.3.4)

• The use or threat of force must be 'immediately before or at the time' of the theft.
• The issue to be determined was whether the appropriation was still continuing at the time the force was used in the case R v Hale (1978) 68 C App R.

The Reason (Section 6.3.5)

• To satisfy the offence of robbery, the force used or threatened must be in order to steal and for no other reason.

Burglary (Section 6.4)

• Burglary is a statutory offence found under s 9(1)(a) and (b) of the TA 1968.
• It is an either way offence that carries a maximum sentence of 10 years' imprisonment in the Crown Court, increasing to 14 years' imprisonment in the case of burglary of a dwelling (TA 1968, s 9(3))
• Under s 9: (1) a person is guilty of burglary if- (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or (b) 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 or inflicts or attempts to inflict on any person therein any grievous bodily harm
• Because of the distinct requirements of s 9(1)(a) and (b), effectively, there are two types of burglary, although they do have similarities. Both require the defendant to: enter, a building (or part of a building), as a trespasser, and know or be reckless they are a trespasser.
• Section 9(1)(a) focuses on the thoughts that are going through the defendant's mind when doing so, whereas criminal liability in s 9(1)(b) rests upon the defendant's actions once inside the property.

Actus Reus (Section 9.4.2)

• Common to the actus reus of both s 9(1)(a) and s 9(1)(b) are the requirements that the defendant enter a building or part of a building as a trespasser.

Entry (Section 6.4.2.1)

• In the case of R v Collins [1973] QB 100 where Collins climbed on a ladder only wearing socks was ruled that At the time of the incident, burglary could be committed by entry as a trespasser with intent to rape, only if there wa effective and substantial entry' into the room.

Building (Section 6.4.2.2)

• The word 'building' is only partially defined in the TA 1968.

Part of a Building (Section 6.4.2.3)

• A defendant may be criminally liable for burglary not only if they enter a building but also if they enter a part of a building.
• In the case of R v Walkington [1979] 1 WLR 1169, the defendant entered a department store just before closing time and went behind a three-sided, movable counter into an area reserved for staff, and it was considered to be sufficient enough for the purpose of a burglary charge.

Trespasser in Fact (Section 6.4.2.4)

• It is an essential element of burglary that the defendant enters as a trespasser.
• In R v Jones and Smith [1976] 1 WLR 672, Smith entered his father's house and stole two television sets, which meant he did so beyond the permission that was granted

Additional actus reus requirements for s 9(1)(b) burglary (Section 6.4.2.5)

• Under s 9(1)(b) of the TA 1968, the defendant must also commit the actus reus of theft, attempted theft, grievous bodily harm or attempted grievous bodily harm.

Mens Rea (Section 6.4.3)

• Knowledge or recklessness as to being a trespasser For both s 9(1)(a) and (b) burglary, the defendant must either know they are a trespasser or foresee a risk they do not have permission to enter and go on, without justification, to take that risk.
• It is clear that for burglary under s 9(1)(a), the defendant must have the mens rea for entry as a trespasser at the time of entry into a building or part of a building as the offence is complete at this point.
• With regard to s 9(1)(b), as the statute refers to the defendant 'having entered' as a trespasser, they must also have the mens rea on entry.

Additional mens rea requirements for s 9(1)(a) burglary (Section 6.4.3.2)

• Under s 9(1)(a) of the TA 1968, the defendant must enter with the intention to commit theft, grievous bodily harm or criminal damage in the building or that part of the building.
• If the court says there was that intent, that is enough to proceed (Attorney General's Reference (Nos 1 and 2 of 1979) [1980] QB 180).

Additional mens rea requirements for s 9(1)(b) burglary (Section 6.4.3.3)

• To be guilty of s 9(1)(b) burglary, the defendant must also have the mens rea for either theft or grievous bodily harm or for an attempt of one of these two offences, but not criminal damage. Note that the offence is satisfied if the defendant has the mens rea for either as 18 or as 20 assault under the OAPA 1861.

Aggravated Burglary (Section 6.5)

-Aggravated burglary may be found in s 10(1) of the TA 1968.

• This involves the possession of a weapon at the time of the burglary. A weapon may be deemed the following items to be weapons: firearms (including air guns, air pistols and imitation firearms whether capable of being discharged or not), a 'weapon of offence (meaning any article made or adapted for use for causing injury to or incapacitating a person, or intended for such use) and explosives.
• In R v Francis [1982] Crim LR 363, the defendants entered a house armed with sticks then discarded them before committing theft, so they were not deemed to have committed aggravated burglary.

This lesson covers property offenses, focusing on theft, robbery, burglary, and aggravated burglary. It refers to ss 2 to 6 of Theft Act 1968 (TA 1968), sections 9(1)(a) and 9(1)(b), and the 'Ivey test' or the 'test in Ivey v Genting.