04-05.2 Theft Aggravations and Related Charges_75b24d515707b057174aaae05bc491b8.pdf

OFFICIAL Unit 4 Lesson 5.2...

OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Lesson Aim: The learner will be able to differentiate between different types of acquisitive crime Learning Outcomes: Introduction On successful completion of the lesson, students will be able to:- There are a number of crimes of theft which are described as being “aggravated”. This 1. Explain the aggravations of theft by means that the manner in which the thefts housebreaking and theft by opening lockfast were committed is aggravated, or in other place words more serious. Theft can be aggravated or made more serious in the following ways:- 2. Differentiate between a house and a lockfast place A. Theft by housebreaking B. Theft by opening a lockfast place 3. Describe charges related to theft 1 th Amended 25 April 2024 v.4 OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Theft by Housebreaking It may surprise you to find out that “housebreaking” in itself is not a crime. The act of housebreaking, or breaking into the house and thereafter stealing, is an aggravation of the common law crime of theft. This crime, and the way it is committed, should be referred to as theft by housebreaking. Although theft by housebreaking is an aggravation of theft, and not a singular crime in itself (it is not written into statute as a statutory offence or a historical common law crime), it still has a working definition:- “Theft by housebreaking is constituted whenever the security of the house is violated and some article abstracted or removed for the purpose of being carried off. It is not essential that the thief should have actually entered the building. The theft is complete if, for example, he draws the article towards him with some implement, even although he does not get the article into his hand.” Practical Considerations When attending the locus of a recent housebreaking, consideration should be given to calling upon the services of a police dog handler. Dogs are trained to follow human scent, and the immediate attendance of a dog handler can greatly increase the chances of affecting an apprehension. If officers contact a dog handler then all entrance/exit points should be covered and no one should enter the property as it will negate the use of a dog due to compromising the scent. On arrival at the locus, care should be taken to preserve any potential track. Officers should be forensically aware and consider utilising a cordon to ensure that members of the public are not entering the area. Officers should not contaminate any area where it is suspected that an accused has made good their escape, by unnecessarily walking over the ground. If it is necessary to do so, the handler should be informed on arrival. Dogs are trained to track over any terrain; however, weather conditions can dictate how effective they are. Heavy rain or strong winds can make tracking much more difficult which reduces the effectiveness of the dog. Dogs are more effective when tracking over grass or other soft surfaces where they are able to pick up a track up to two hours old, however on hard surfaces, a track may only be possible up to approximately thirty minutes from the time of the incident. 2 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges The Essential Elements for Theft by Housebreaking There must be:- 1. An overcoming of the security of the house; and 2. Unauthorised appropriation of property (from within the house); and 3. Felonious intent to deprive the owner. The essential elements that you need to prove are similar to those for theft, with the addition that the security of the house must be overcome. The “overcoming of the security” has also been described as "avoiding the ordinary obstacles to entry". You will cover the ways that this can be achieved shortly under “Modes of entry”. Example Charge EC “Between 10th April 2020 and 11th April 2020, at 45 Cedar Drive, Brookbank you Steven Wright did force open a window, enter and steal a games console and did commit theft by housebreaking.” What is a House? When dealing with theft by housebreaking, you must first be able to recognise what is included in the meaning of the word “House”. You will already have your own idea of what is a house, but as with many things, the law has developed a special meaning for the term. The term ‘House’:- “includes any dwelling house or other roofed building, finished or unfinished, or any part of a building used as a separate dwelling, which is secured against intrusion by unauthorised persons.” 3 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Activity 1 A1 Look at the following pictures and decide whether the examples fall into the definition of house or not. Traditional House Factory Church Garage Shed Supermarket 4 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Examples of a House Domestic Dwelling - "A house being used or fit for residential purposes." 1. Caravans used as residential home and touring caravans if used as permanent domicile 2. Houses which are unfinished/under renovation but are capable of being secured against intrusion (e.g. lock on door) which are roofed and have windows and doors fitted are classed as dwelling houses 3. Boarding House - should be classed as a dwelling house when the owner resides permanently on the premises 4. Domestic garage, which is an integral part of a dwelling house (there is no requirement for an integral door to connect both, the garage being attached to the dwelling is sufficient) 5. Occupied bedrooms within a hotel Domestic Non-Dwelling - "All roofed buildings used for domestic purposes other than dwellings." 1. Domestic garages, which are not an integral part of a dwelling house 2. Garden huts/garden sheds 3. Outhouses Other - "All roofed buildings not used for residential or domestic purposes i.e. commercial premises" 1. Portacabins - not used for storage e.g. office Note:- portacabins used for storage and non-static caravans should be classified as a Lockfast Place 5 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges 2. Commercial/Business premises 3. Factory buildings 4. Park huts 5. Show houses (used purely for that purpose) 6. Boarding House - should be classed as ‘Other’ when the owner does not reside permanently on the premises 7. Barn within a working farm Case law has extended this basic definition of a house to cover a number of other situations:- A house divided by separate floors, each floor being occupied by different people, Example:- old style property divided into two separate dwellings. A floor of a tenement divided into separate rooms/flats (whether secure entry common close or not), Example:- standard flats. Rooms within a building which are individually occupied, each occupier having a key for their own room and the communal front door, each individual doing their own cooking and cleaning, and all sharing a communal kitchen and bathroom, Example:- houses in multiple occupation. Depending on the circumstances, an individual hotel room if being used by guests, within a hotel is also classified as a house for the purposes of crime recording. 6 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Problem Solving PS You may find that there is a series or pattern of housebreakings taking place in the area that you patrol. By working in partnership with other departments and partner agencies you can take a coordinated approach to tackling issues within the community. If a person’s home or other premises are invaded, this can have a devastating effect on an individual. You should always be aware of this when dealing with such incidents, taking the opportunity to offer help and support where necessary. Modes of Entry There are a number of ways in which it is recognised that theft by housebreaking can be committed. These are known as “Modes of Entry”, and are as follows:- Possession Unusual Opening Trickery Unlocked Window Stolen Key Overcoming the Lock Found Key Force 7 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges 1. Possession - Unauthorised use of key Example:- By an employee returning at night to their work premises, gaining entry and stealing. 2. Unusual opening Example:- Via a chimney, a sewer, pub trap door in the pavement, opening in the roof etc. 3. Trickery Connivance with inmate. Example:- This could be achieved by someone who has a right to be in the property leaving a door open for the thief to enter. Tampering with fastenings while within, subsequently returning & obtaining entry. Example:- By undoing window latch in pub toilet, returning later, gaining entry and stealing. Ringing the door bell and rushing past the person who answers door. Example:- Elderly person answers the door, youths rush in and steal handbag from hall/kitchen table and run out the back door. 4. Unlocked window If the window is open:- If the window was at a distance from the ground so that there was no special risk of leaving it open, then it would be theft by housebreaking. It is not theft by housebreaking to enter or to lean-in a window for the purpose of theft, if the window is near the ground. The crime here would be theft. If the window is closed/ajar:- It is theft by housebreaking to open a closed window or an ajar window further in order to enter or to lean-in for the purpose of theft. Here it is irrelevant which level the window is on. 5. Stolen Key Example:- By stealing a handbag containing keys and thereafter using the keys to gain access to a house and steal. 8 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges 6. Overcoming the Lock For a lock to be overcome, the door must actually be securely locked. It is not theft by housebreaking to enter premises to steal merely by having to turn the handle in a door, turn the key found in the keyhole, open a bolt, or turn a latch. In these cases, the crime would merely be theft. Example:- By using either a skeleton key, false key or lock pick etc. 7. Found Key Example:- By using a key found on the street, concealed under a mat or flowerpot, inside the letterbox on a piece of string etc. 8. Force Example:- By forcing entry through a door, the roof, a wall, window etc. It is not however theft by housebreaking to conceal yourself within a premise, steal when the premises are closed, and then break out of the premises. In this case the crime would merely be theft. Feedback 1 F1 Traditional House - Yes Factory - Yes Church - Yes Garage - Yes Shed - Yes Supermarket - Yes As you can see, all of these are classed as a house under the definition. 9 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Theft by Opening a Lockfast Place As with theft by housebreaking, theft by opening a lockfast place is not a crime in itself. The crime here is theft, but committed by opening a lockfast place. It should always be referred to as theft by opening a lockfast place. Theft by opening a lockfast place is committed whenever the security of the lockfast place is overcome and the contents are stolen. The overcoming of the security of the lockfast place must take place before the property is appropriated. The Essential Elements for Theft by Opening a Lockfast Place You must ensure there has been:- 1. An overcoming of the security of the lockfast place, and 2. Unauthorised appropriation of property (from within the lockfast place), and 3. Intent to deprive the owner. As you can see, as with theft, the essential elements are similar. Here the addition is that the security of the lockfast place must be overcome. You should note that the overcoming of the security of the lockfast place must take place before the property is appropriated. Therefore, if the lockfast place is removed, and then broken into later at a different locus, the crime would be theft (this being theft of the lockfast place including its contents). Example:- If a thief uses a forklift truck to steal a cash machine from a bank, places it on the back of a lorry, takes it to a deserted farm and then forces it open to steal the money. The charge here would be theft (of the cash machine and its contents). Example Charge EC “On 26th July 2020, at Woodlea Drive, Brookbank, you, KEVIN JONES did force open lockfast motor vehicle, registration number R144CSC and steal a mobile phone.” 10 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges What is a Lockfast Place? The definition of a ‘lockfast place’:- “Includes rooms, cupboards, drawers, safes, desks, cashboxes, show-cases and any other receptacle the contents of which are protected by lock and key.” The following have been held to be examples of the term lockfast place:- a locked room within a house a locked safe a locked drawer a locked desk a locked box a locked cash box a locked display case a locked motor vehicle Difference Between a House and a Lockfast Place The term lockfast place has no formal definition but it has a specific meaning and has been held by courts to extend to anything other than a building which is secured by a lock. It can be seen by the definitions of a house and a lockfast place where the differences lie. As with overcoming the security of a "house", it would not be considered overcoming the security of a lockfast place merely by turning the handle or using a key left in the lock to open it. In a similar vein, if a thief were able to reach in through the open window of a "locked" car and steal an item, this would be considered a theft without the opening a lockfast place aggravation but if the thief had to reach in the window and release the lock to gain access to the property, this would constitute theft by opening a lockfast place. 11 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Health and Safety HS When dealing with housebreakings or cars which have been stolen or broken into, you can face many potential dangers. By approaching an incident with your own safety and that of others uppermost in mind, you can prevent injury, or at least reduce the risks involved. Related Charges There may be times where the aim of the thief was to commit a theft related crime, but for whatever reason, the aim did not succeed. There are also a number of charges related to theft that you must be aware of. The more common of them are listed below, some of which will be dealt with in more depth in subsequent lessons. Attempted Theft You are now aware that for the crime of theft to have occurred there must be some form of appropriation of the property by the thief. What happens if the thief does not succeed in appropriating the property, but still has the intent to do so? The law recognises the “attempt” to commit the crime is also criminal, and the crime that would be libelled is “attempted theft”. Case Law It has been held that you don’t even need to prove that there was something there to steal. In the case of a pickpocket attempting to steal from an empty pocket. (Lamont v Strathearn 1933) Further examples of attempted theft would include attempting to steal a wheel and being disturbed by the police before all the wheel nuts have been removed. Note:- You must remember that any unauthorised appropriation, even if only for an instant, is sufficient to be theft. 12 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges There are circumstances you will deal with where the aim of the thief was to commit the crime of theft by housebreaking, but for whatever reason, the aim was unsuccessful. The following related charges cover these occasions. Housebreaking with Intent to Steal (HBWI) It is a substantive crime to break into any building with intent to steal therefrom. The felonious purpose is inferred from the circumstances in which the building is entered. Examples:- Breaking into a house by forcing the rear door, entering the property intending to steal but being disturbed by the owner returning before anything can be taken Breaking into a house by smashing a window, rummaging through drawers etc. looking for valuables, but leaving empty handed when nothing is found Attempted Housebreaking with Intent to Steal This is committed when an unsuccessful attempt is made to break into any building with the intent to steal. Here the housebreaking itself, and therefore the theft has not been successful. The attempted housebreaking would be constituted by an attempt to gain entry by the same modes of entry that you are already aware of. Examples:- Attempting to force open a front door of a house using a jemmy but being unable to overcome the locks and gain entry An unsuccessful attempt to force a window lock using a screwdriver As you experienced with theft by housebreaking, there are charges related to theft by opening a lockfast place that you can apply to cover circumstances where the aim of the thief was to commit the crime, but for whatever reason this aim did not succeed. 13 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Opening a Lockfast Place with Intent to Steal (OLPWI) This is committed when a lockfast place is broken into with the intent to steal, but nothing is stolen. This charge is relevant even if the lockfast place is empty. In effect, the opening has been successful but the theft has not. Examples:- Breaking into a car by forcing a door, entering the vehicle but being disturbed by the owner returning before anything can be stolen. Breaking into a payphone by forcing the cashbox with a jemmy, but leaving empty handed when no cash is found within. Attempted Opening a Lockfast Place with Intent to Steal This is committed when an unsuccessful attempt is made to break into a lockfast place with the intent to steal. Here the opening itself, and therefore the theft, has not been successful. Examples:- Attempting to force open the passenger door of a vehicle using a screwdriver but being unable to overcome the locks and gain entry Attempting to break into an ATM to steal cash, but being unable to force the lock 14 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges Combination of Charges There are occasions when you will deal with a theft by opening a lockfast place in combination with a theft by housebreaking. V.3 An example of this could be when a house is broken into and a cashbox is forced open in a bedroom within and the contents stolen. Here there has been a theft by opening a lockfast place after the security of the house has been overcome. In these circumstances the charge libelled would be theft by housebreaking and opening a lockfast place (also known as Theft by H.B. and O.L.P.). Police Powers Theft is a crime at common law and as with all common law crimes it is punishable by imprisonment. Section 1 of the Criminal Justice (Scotland) Act 2016 gives you the power of arrest. Key Information KI Theft by Shoplifting is a common crime that you will deal with as a police officer. Retailers Against Crime are a national, not for profit retail crime partnership committed to detecting and preventing crime, including acts of violence by sharing information across the UK. They work with the police sharing relevant intelligence. Even if shops aren’t members they can contact RAC and share their CCTV in order to identify offenders. www.retailersagainstcrime.org 15 Scots Criminal Law: Introduction and Investigation OFFICIAL  OFFICIAL Unit 4 Lesson 5.2 Acquisitive Crimes - Theft Aggravations and Related Charges For further information, use the resources shown below:- Legal Database:- Criminal Law - Crimes against Property - Theft Review: You can explain the aggravations of theft by housebreaking and theft by opening a lockfast place You can differentiate between a house and a lockfast place You can describe charges related to theft Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 16 Scots Criminal Law: Introduction and Investigation OFFICIAL