Theft Robbery and Burglary

Theft, Robbery and Burglary

These property offences are defined by the Theft Act 1968, which replaced the complex and outdated Larceny Act 1916 with a modern, codified framework.

Theft — s.1 Theft Act 1968

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it."

The offence has five elements — all must be proved:

1. Appropriation (s.3)

"Any assumption by a person of the rights of an owner." This includes where the defendant came by the property innocently and later assumes rights over it (s.3(1)).

Key cases:

• R v Morris [1984] — the House of Lords held that assuming any of the rights of the owner was sufficient (e.g. switching price labels in a supermarket)
• R v Gomez [1993] — the House of Lords (following Morris) held that an appropriation occurs even where the owner consents to the taking. An electronics shop manager deceived his employer into accepting stolen cheques — the appropriation occurred even though the employer handed over the goods
• R v Hinks [2001] — even a valid gift can be an appropriation. A carer received substantial gifts from a vulnerable man of low intelligence. The House of Lords held that appropriation is a neutral concept — the question of dishonesty determines whether it is theft
• R v Atakpu and Abrahams [1994] — appropriation occurs at a single point in time (when the right is first assumed), not as a continuing act. Cars hired abroad were already appropriated before entering England, so English courts had no jurisdiction

2. Property (s.4)

"Property includes money and all other property, real or personal, including things in action and other intangible property."

Exceptions:

• Land cannot generally be stolen (s.4(2)) — except by trustees, tenants who sever fixtures, or strangers who sever things forming part of the land
• Wild mushrooms, flowers, fruit, and foliage growing wild on land cannot be stolen unless taken for sale or commercial purposes (s.4(3))
• Wild creatures not ordinarily kept in captivity cannot be stolen unless tamed or in someone's possession (s.4(4))

Things in action (e.g. a bank account balance — R v Kohn [1979]) and other intangible property (e.g. patents, export quotas — Attorney General of Hong Kong v Nai-Keung [1987]) can be stolen. However, confidential information is not property — Oxford v Moss [1979] (an engineering student who saw an exam paper but did not take it could not be convicted of theft of the information).

3. Belonging to Another (s.5)

"Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest."

• Property can "belong to" someone other than the legal owner — R v Turner (No. 2) [1971]: D took his own car from a garage without paying for repairs. The garage had possession and control.
• s.5(3) — property received under an obligation to retain and deal with it in a particular way is treated as belonging to the person to whom the obligation is owed. R v Davidge v Bunnett [1984]: flatmates gave D money for gas bills; she spent it on presents. The money was received under an obligation.
• s.5(4) — property received by mistake where there is a legal obligation to restore it. Attorney General's Reference (No. 1 of 1983) [1985]: a police officer's salary was overpaid by error; she was under an obligation to return the excess.

4. Dishonesty (s.2 and the Ivey test)

s.2 provides three situations that are NOT dishonest:

• D believed they had a legal right to the property (s.2(1)(a))
• D believed the owner would have consented had they known (s.2(1)(b))
• D believed the owner could not be discovered by taking reasonable steps (s.2(1)(c))

The Ivey test — Ivey v Genting Casinos [2017]:

1. What was the defendant's actual knowledge or belief as to the facts? (Subjective)

2. Was that conduct dishonest by the standards of ordinary decent people? (Objective)

This replaced the two-stage R v Ghosh [1982] test, which had required the defendant to also realise that reasonable people would regard the conduct as dishonest. The Supreme Court in Ivey held that Ghosh was wrong. Although Ivey was a civil case, the Court of Appeal confirmed its application to criminal law in R v Barton and Booth [2020].

5. Intention to Permanently Deprive (s.6)

The defendant must intend that the owner will never get the property back. Borrowing is generally not theft.

s.6(1) extends the concept: D is treated as intending permanent deprivation if they intend to treat the property as their own to dispose of regardless of the other's rights. This covers:

• R v Lloyd [1985] — borrowing is not theft unless the property is returned in such a changed state that "all its goodness, virtue and practical value" has gone (a cinema projectionist who temporarily took films to copy them was not guilty)
• R v Velumyl [1989] — taking money from a safe intending to return equivalent notes later was theft — specific coins or notes were permanently deprived
• Conditional intent — R v Easom [1971]: D rummaged through a handbag but found nothing worth stealing. He was not guilty of theft (but guilty of attempted theft under current law)

Robbery — s.8 Theft Act 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."

Elements

1. Completed theft — all five elements of theft must be established. If the theft is not complete, there is no robbery (R v Robinson [1977] — D threatened V to recover money he was owed; not dishonest, therefore no theft, therefore no robbery)

2. Force or threat of force — even minimal force suffices:

• R v Dawson and James [1976] — a nudge causing the victim to lose balance while an accomplice took his wallet was sufficient force
• R v Clouden [1987] — wrenching a shopping basket from the victim's hand was force "on a person" (through the property)
• The force must be on a person — force on property alone (e.g. snatching an unattended bag) is not robbery

3. Immediately before or at the time of stealing — the courts have interpreted "at the time" broadly:

• R v Hale [1979] — D and an accomplice entered a house; one covered the victim's mouth while the other took a jewellery box upstairs. The Court of Appeal held that appropriation is a continuing act, so the force was used "at the time of stealing"
• R v Lockley [1995] — confirmed Hale even after Gomez (which treated appropriation as instantaneous for theft purposes)

4. In order to steal — the force must be used for the purpose of stealing. Force used for another reason (e.g. anger) that happens to coincide with a theft is not robbery.

Maximum sentence: life imprisonment.

Burglary — s.9 Theft Act 1968

s.9(1)(a) — Entry with Intent

D is guilty if they enter a building or part of a building as a trespasser with intent to:

• Steal
• Inflict GBH
• Commit criminal damage

The intent must exist at the time of entry.

s.9(1)(b) — Committing or Attempting an Offence After Entry

D is guilty if, having entered a building or part of a building as a trespasser, they:

• Steal or attempt to steal
• Inflict or attempt to inflict GBH

Key Concepts

Entry:

• Must be effective — R v Ryan [1996]: D was stuck in a window with his head and arm inside. The Court of Appeal held this was sufficient entry (despite D being unable to steal anything)

Building or part of a building:

• Includes inhabited vehicles and vessels (s.9(4))
• "Part of a building" — R v Walkington [1979]: D went behind a shop counter (a separate part of the building where customers were not permitted) — this was entry into a part of a building as a trespasser

Trespasser:

• D must enter without permission or exceed the permission granted
• R v Collins [1973] — D climbed naked to a window; the occupant invited him in, mistaking him for her boyfriend. The jury had to be sure D knew or was reckless as to being a trespasser at the point of entry
• R v Jones and Smith [1976] — D entered his father's house (where he had general permission to enter) for the purpose of stealing a television. This exceeded the permission, making him a trespasser

Mens rea:

• D must know or be reckless as to being a trespasser
• For s.9(1)(a): D must also have the ulterior intent at the time of entry
• For s.9(1)(b): D must have the mens rea for the completed or attempted offence

Aggravated Burglary — s.10

Burglary committed while having with them a firearm, imitation firearm, weapon of offence, or explosive. Maximum sentence: life imprisonment.

Evaluation

• The Theft Act 1968 was intended to simplify the law but has generated extensive case law
• Gomez and Hinks on appropriation are controversial — if every assumption of any right is an appropriation, dishonesty bears too much weight
• The Ivey test for dishonesty is clearer than Ghosh but some argue it gives juries insufficient guidance
• The overlap between theft and robbery can be difficult to apply in snatching cases
• Burglary under s.9(1)(a) and (b) creates two distinct offences that students must carefully distinguish