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National Investigators Examination Textbook – 8th Edition 1

Property Offences

Subject 1: Theft

Theft

Section 1 Theft Act 1968

Either Way Offence

Penalty In The Crown Court - 7 Years Imprisonment

Penalty In The Magistrates Court - 6 Months Imprisonment And / Or A Fine

Mens rea - element 1

Dishonest.

Actus reus - element 1

Appropriation.


Property.


Belonging to another.

Mens rea – element 2

Intention to permanently deprive the other of the

property.

Textbooks Courses E-learning Videos & MCQs

Property

Offences

Comprehensive Clear Concise

1 – Dishonesty

What is Not Dishonest? – Section 2 Theft Act 1968

A person will not be regarded as dishonest if they believed that either:

Situation 1 Situation 2 Situation 3

They had a right in law to the property. For example: If an individual attended one of our courses without paying for the course fee, it would not be dishonest to take their mobile phone – as I

believed I had a right in law

to appropriate the phone in lieu of the course fee.

If the owner knew of:

The appropriation; and

Its circumstances – i.e. why it was taken;

....they would have consented. For example: If I needed money to purchase a pint of milk and I took money from my spouse’s purse to pay for the goods without her knowledge - I would not be behaving

dishonestly as I believed

that she would have consented had she been aware of what I was doing. NB – It is not necessary for the owner to actually provide their consent after finding out about the appropriation.

The owner cannot be discovered by taking reasonable steps. For example: If I find a pound coin on the floor in a crowd of 70,000 at the FA cup final – I would not be behaving dishonestly if I kept it having formed the

belief that it would not be

reasonable to attempt to trace the owner in such a large crowd for such a small sum. NB – It is not necessary for the person who found the coin to have exhausted all reasonable steps to find the owner.

Learning Point

Focus upon the belief of the accused at the time of acting – i.e. what was going through their head.

It does not matter if the belief is mistaken – provided the belief was honestly held.



The Principles Of R v Ghosh

If the criteria of section 2 does not assist in determining dishonesty - the judge will

apply the 2 stage test derived from the case of R v Ghosh [1982] QB 1053:

Step 1

Whether a reasonable and honest person would have viewed the act as dishonest.

If the jury decide no – the jury must acquit. If the jury decide yes – the jury will proceed to step 2.

Step 2

Whether the defendant realised by the standards of a reasonable and honest person that what they were doing was dishonest.

If the jury decide no – the test would fail at the second hurdle and the jury must acquit. If the answer is yes - then the defendant will have behaved dishonestly.

The objective nature of the first step of the test prevents defendants with a skewed

moral compass from claiming a lack of dishonesty based upon their perception of what amounts to a dishonest act.

Willingness To Pay – Section 2(2) Theft Act 1968

It is possible for behaviour to be deemed to be dishonest despite a willingness to

pay.

For example: A person who takes a newspaper delivered to your doorstep and leaves money to cover the cost of the paper or their contact details will still be deemed to be dishonest.

2 – Appropriation

Definition Of Appropriation – Section 3 Theft Act 1968

An appropriation is an assumption by the person of the rights of the owner – i.e. treating the property as their own.

The Timing Of The Appropriation

In a straightforward theft situation the accused will have the necessary mens rea to

steal at the point of the appropriation.


Property

Offences


However, it is not necessary for this to be the case - an appropriation can also take place where the accused initially appropriates the property innocently – (lacking mens rea at this point); but subsequently decides to keep the property and deal with it as their own – (mens rea formed at this point).

Duration Of The Appropriation

An appropriation can be for a very short period of time.

For example - a thief who takes a purse out of a handbag, is almost immediately

disturbed, drops the purse and runs off will be deemed to have appropriated the purse.

Appropriation And Consent

It is possible for an appropriation to take place even when the victim consents to

the appropriation.

In the case of R v Lawrence [1982] AC 510 - a tourist who had a wallet full of unfamiliar cash, offered his wallet to the taxi driver to remove the correct fare. The driver took more than the fare. He was convicted of theft even though he had the owner’s consent to remove the cash.

In the case of R v Gomez [1993] AC 442 - Gomez worked in a shop in London and was asked by a friend to accept two stolen building society cheques in exchange for expensive electrical goods. Knowing the cheques were stolen, Gomez asked the manager to authorise the sale assuring him the cheques were as good as cash. As a result, the manager consented to release the goods to Gomez’s friend. Some time later, the cheques bounced and were returned by the bank without being paid.

Gomez’s counsel argued that the manager had consented to the appropriation and therefore there was no case to answer. The House of Lords upheld the conviction on the basis that it was possible to ‘appropriate’ property despite the presence of consent.

Appropriation Exception – Section 3 Theft Act 1968

An appropriation will not take place where:

Step 1 Step 2 Step 3

There has been a purchase for value.

The person was acting in good faith.

The person assumes the rights of the owner.



An Example Of Acting In Good Faith

Acting In Good Faith

Not Acting In Good Faith

If a person gets a good deal at a legitimate car auction and purchases a vehicle worth £5000 for £4000 they will be able to rely upon the defence as they have: Purchased the vehicle for value; Whilst acting in good faith; and Have assumed the rights of the owner

by taking the registration documents and driving away.

A person buying a car worth £5000 from a stranger in a pub for £200 will not be able to rely upon the appropriation exception as they have: Purchased the vehicle for value; Have assumed the rights of the owner

by taking the vehicle;

But they have not acted in good faith.

3 – Property - Section 4 Theft Act 1968

Property includes:

Money.

All other property including:

Real – (land and things forming part of the land); Buildings; Personal – (movable things that can be owned e.g. CD,

TV, cars etc); ‘Things in action’ (capable of being enforced in a legal

action – e.g. patents, trademarks, copyrights); and ‘Other intangible property’ – (e.g. gas).

Items that cannot be physically stolen (e.g. trade secrets.


Property

Offences


Exam Trip Up - Examinations

The Paper The Examination Is

Written On

The Actual Information Contained In

The Examination

The actual paper that an examination is written upon is property and can be stolen by appropriating the physical script itself.

The information contained within the examination paper itself (i.e. the questions posed) is not property.

Therefore simply seeing the script and either memorising or photographing its contents will not amount to an appropriation of property - Oxford v Moss [1978] 68 Cr App R 183.

Exam Trip Up – Cheques

The actual paper a cheque is written upon is property and can be stolen.

Exam Trip Up – Contents Of Bank Accounts

The case of R v Kohn [1979] 69 Cr App R 395 established that contents of a bank account will be property and can be stolen provided the account is either:

Option 1 Option 2

In credit.

Within the limit of an approved overdraft facility.

Exam Trip Up

Watch out for questions involving the appropriation of funds which have exceeded an approved overdraft limit from a bank account – no theft.

Exam Trip Up – Personal Data

Confidential personal data is not property and cannot be stolen.



Can Land Be Stolen? - Section 4(2)(a) - (c) Theft Act 1968

The General Rule

As a general rule land cannot be stolen.

Exceptions To The General Rule

There are 3 exceptional circumstances where land can be stolen:

Trustees / PR’s

Possession

Tennant

Trustees or Personal Representatives can steal land by dealing with it in breach of a confidence. For example: An executor of an estate selling land for their own benefit.

A person not in possession of the land can steal by severing it. For example: A enters B’s land and removes a stone statue fixed to the land.

A tenant in possession can steal fixtures and structures. For example: A tenant removing a fireplace fixed to the wall from premises that they rent.

Can Things Growing Wild Be Stolen? - Section 4(3) Theft Act 1968

The General Rule

It is not an offence of theft to pick any:

Mushrooms

Flowers

Fruits

Foliage

...growing wild on any land.

The Exception To The General Rule

It will be an offence if the mushrooms, fruit, flowers, or foliage growing wild are picked for either:

Sale.

Reward.

Other commercial purpose.


Property

Offences


Exam Trip Up – “Any” Land

It is permissible to pick things growing wild on any land.

Watch out for questions involving the picking of things growing wild in a persons

back garden. The fact that the things growing wild are picked from private land is a red herring and it is permissible to pick such wild items provided they are not picked for either sale, reward, or other commercial purpose.

For example:

You walk down the road and strike up a conversation with a man standing in his garden and he tells you that the daffodils in his garden grow wild each year. You would not commit the offence of theft if you picked those daffodils, as they were growing wild on any land.

If the facts were the same, but this time the man tells you that he planted the

daffodils last year, then as the daffodils were cultivated and not growing wild, you would commit an offence if you picked them.

Exam Trip Up – Destruction Of The Whole Plant

It is permissible to pick wild mushrooms, flowers, fruit and foliage growing wild on

any land - such as blackberries from a bush.

It is not permissible to dig up the whole bush and take it away.

Exam Trip Up – Sale Reward Or Other Commercial Purpose

It is permissible for a person to pick wild mushrooms, flowers, fruit, or foliage for

their own use.

It is not permissible to pick wild mushrooms, flowers, fruit, or foliage for either:

Sale;

Reward; or

Other commercial purpose.

Exam Trip Up – Focus On The Point At Which The Intention Was Formed

Watch out for questions where:

There was no intention to sell etc at the time of picking the wild

mushrooms, flowers, fruit, or foliage; and

The intention to sell etc was only formed at some later point after the wild mushrooms, flowers, fruit, or foliage was picked.



For example:

Mrs Smith, the farmer’s wife went picking wild blackberries to make some pies for her family. Having baked the pies she fed some to her family. She received such praise that she subsequently decided to sell the leftover pies at a farmers market the next day.

In such circumstances Mrs Smith will not have committed the offence of theft as she lacked the intention to utilise the blackberries for commercial reward at the time of picking. That intention was only formed subsequently.

Can Wild Creatures Be Stolen? – Section 4 Theft Act 1968

The General Rule

It will not be possible to steal a wild animal.

The Exception To The General Rule

A wild animal can be stolen when it has been:


Tamed

For example: Seigfreid and Roy’s pet tigers.

Ordinarily kept in captivity

For example: The lions at Longleat safari park.

Either:

Reduced into possession; or

Is in the course of being reduced into

possession;

& Possession has not been either:

Lost; or

Abandoned.


Property

Offences


Reducing An Animal Into Possession

In The Course Of Reducing An

Animal Into Possession

If a fisherman catches a fish and leaves it by his side in readiness to take it home to eat - they have reduced the fish into their possession and become the owner of the fish.

It is therefore possible for the fish to be stolen from them.

A fisherman reeling in a fish will be in the course of reducing the fish into their possession.

If somebody cut the line and took the fish then the fish would be stolen from them.

Exam Trip Up – Reduced Animals Reverting To Their Wild State

If a fisherman having reduced a fish into their possession either:

Action 1 Action 2

Leaves and forgets to take the fish

Throws the fish away to feed the birds

...the fish reverts to its wild state - and if any person subsequently saw the fish and took it home to eat (reducing the fish into their possession) they would not have stolen the fish.

Are Corpses Property?

General Rule

A corpse is not property – (Doodeward v Spence [1908] 6 CLR 406).

Exception To The General Rule

The case of R v Kelly [1999] QB 621 established that a corpse will become property

if it has been changed in some way by either:

Change 1 Change 2 Change 3

Amputation

Dissection

Preservation



4 – Belonging To Another

Defining “Belonging To Another” – Section 5 Theft Act 1968

Property belongs to the person who either has:


A proprietary interest in it.

Possession of it.

Control of it.

For example - a PC being repaired in a computer repair shop can have three

owners:

Owner Of The PC

Technician

Manager Of The Shop

Has a proprietary interest in

it.

Has possession of it.

Has control of it.

In such circumstances it would be possible for the owner to actually steal their own PC if

they sneaked into the store and took the PC – R v Turner No 2 [1971] 1 WLR 901.

Exam Trip Up – The Duration Of Possession Or Control

The case of R v Kelly [1998] 3 All RE 741 established that possession or control need not be permanent can be for only a defined period.

For example – in relation to the table above the manager and technician will not have permanent possession or control of the PC. The property will only “belong to them” for the duration that it is necessary to repair the PC.

Exam Trip Up – It Is Not Necessary To Prove Who Exactly Owns The

Property

The case of R v Rostron; R v Collinson [2003] EWCA Crim 2206 established that:

It is only necessary to prove that the property belonged to somebody other

than the accused; and

It is not necessary to identify the specific individual to whom the property belonged.


Property

Offences


5 - An Intention To Permanently Deprive – Section 6 Theft Act 1968

There are 3 circumstances which may amount to a person having an intention to

permanently deprive:

Treating The

Property As Their

Own Regardless Of

The Owners Rights

Borrowing Beyond The

Scope Of The Agreed

Terms

Parting With Property

Under A Condition For Its

Return

For example: A borrows a fridge

from B; and

A secures the fridge into their new intergraded kitchen.

For example: A lends B their season

ticket specifically to watch the first league game of the season.

B does not return the

season ticket and instead uses the ticket to watch all of the remaining games that season.

In the circumstances B will have exceeded the scope of the lending and their actions will have amounted to an outright taking.

For example: A borrows (condition being

the return of the item) B’s lawnmower (another’s property) for a week; and

Pawns the lawnmower

(parts with the property); The theft is complete at the time of parting, even if A intended to return the lawnmower. This is due to the fact that they may not be able to perform the condition of return of the item borrowed.

Receiving Property By Mistake – Section 5(4) Theft Act 1968

Where a person receives property by mistake they are obliged to restore it to the person who made the mistake - failure to do so will form an intention to permanently deprive the other of that property.

For example:

Having too much change given to you in a shop; or

An employee being paid for overtime that they did not work – AG’s Reference

(No1 of 1983) [1985] QB 182.

Exam Trip Up – Changes Of Heart

Watch out for questions where at the time of the appropriation the accused had the intention to permanently deprive another of their property but later has a change of heart and returns the goods - the accused will still be guilty of theft in such circumstances – R v McHugh [1993] 97 Cr App R 335.



Property Offences

Subject 2: Burglary

Burglary

Violence Used In A Dwelling –

Indictable Only Offence

Penalty In The Crown Court – 14

Years Imprisonment

Other Offences - Either Way Offence

Penalty In The Crown Court – 10

Years Imprisonment

Penalty In The Magistrates Court – 6

Months Imprisonment And / Or A

Fine

2 Offences

Burglary

Section 9(i)(a)

Theft Act 1968

Burglary

Section 9(i)(b)

Theft Act 1968

A person enters a:

Building; or

Part of a building.

Having entered a:

Building; or

Part of a building;

As a trespasser.

As a trespasser.

With the intent (offence is complete at this point) to either:

Steal;

Do GBH;

Do unlawful damage to either:

The building; or

Anything in the building.

A person either:

Steals or attempts to do so - (result); or

Commits GBH or attempts to do so -

(result).

NB – no reference to unlawful damage.

Intent Offence

The offence is complete once the intent is formed – there is no need for any result.

Result Offence

The offence is complete once either of the above results occurs.


Property

Offences


Exam Trip Up

Rape is no longer included in the definition of the offence.

Exam Trip Up

Entering a building to TWOC a vehicle will not amount to an offence of burglary.

Exam Trip Up

Entering a building to or steal electricity will not amount to an offence of burglary.

Entering a building to or steal gas will amount to an offence of burglary.

1 - Enters

Put simply – this means that the accused has crossed a boundary.

Defining A Boundary

The boundary that is crossed can be either:

Boundary 1

The threshold between perimeter and inside of a building.

e.g. Entry into a building from outside via a door or a window.

Boundary 2

The threshold between separate rooms inside of a building.

e.g. Passing via a door from a hallway into a lounge area.

Boundary 3

The threshold between a cordoned off area to which access is prohibited and an area to which access is allowed within the same room.

e.g. Stepping behind the serving counter in the barroom of a pub or a corner shop; or stepping behind a rope cordon in the viewing area of a public gallery – R v Walkington [1979] 2 All ER 716.

The Extent Of The Entry Required To Cross A Boundary

A person will be deemed to have entered by crossing a boundary if their entry is effective – R v Brown [1985] Crim LR 212.

This is a question of fact to be determined by the jury.



Exam Trip Up

It is not necessary for the whole body to have entered.

Think of the classic “smash & grab” burglary whereby goods are stolen from a

jewellers simply by breaking a window with a brick and reaching in with a hand alone whilst the rest of the body remains in the street.

Clearly the act of crossing the boundary by simply reaching in through the window from outside the building with a hand alone will be an effective entry.

Exam Trip Up – The Extent Of The Entry & Section 9(1)(a) Burglary

For the offence under section 9(1)(a):

It is not necessary to establish that the extent of entry was adequate enough to enable the intended act of either stealing / committing GBH / causing damage to take place.

It is only necessary to establish that the time of entry (i.e. when the boundary was crossed), the accused was trespassing and they had in their mind at the point of crossing the boundary the intention to either steal / commit GBH / cause damage.

Exam Trip Up – Insertion Of Non Body Parts Into The Building

The insertion of an instrument alone:

To gain entry (e.g. to unhinge a lock) - will not be an entry.

To enable stealing, GBH or damage to be committed - will be an entry.

2 - Building

A building must have a degree of permanence – Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167.

Exam Trip Up

Watch out for questions involving portakabins. Whilst they are ultimately portable in nature their function and degree of permanence as a work site make them a building – B & S v Leatherley [1979] Crim LR 314.


Property

Offences


Dwellings As Buildings

A dwelling is a building.

Exam Trip Up

An uninhabited shell of an unfinished house is a building and can be burgled.

Exam Trip Up – Tents & Marquees Are Not Buildings

Due to their lack of permanence – tents and marquees are not buildings.

Even if a tent is lived in - i.e. is used as a dwelling (e.g. a tepee) – it is still not a building.

Watch out for questions involving thefts, GBH, or damage in:

A tent at the Glastonbury festival – no burglary;

A marquee at a wedding – no burglary.

Inhabited Vehicles Or Vessels As Buildings

A building will also include either:

A vehicle (e.g. campervan)

A vessel (e.g. houseboat).

...that is inhabited – i.e. is used as a permanent home.

Exam Trip Up

The fact that the vehicle or vessel was designed for inhabitation is insufficient in itself.

It is necessary to go on to establish that somebody actually lived in it on a

permanent basis.

Exam Trip Up

It is not necessary for the occupier to be actually in the vehicle or vessel at the

time of the burglary.



3 - As A Trespasser?

A person will be deemed to be trespassing when they either:

Know

Are subjectively reckless – i.e. foresaw the possibility

...that they have crossed a boundary without either:

Consent to do so.

The right by law to do so.

Entering With Consent

The General Rule

If a person enters a building with consent – they will not be a trespasser.

Exception To The General Rule - Exceeding The Scope Of The Consent To

Enter

If A consented to B entering their building as a guest for a specific purpose (e.g.

fix their boiler); and

At the point of entry B had no intention of entering for the specified purpose;

As at the point of entry B instead had the intention of either stealing / commiting GBH / causing damage;

B will have entered the building as a trespasser – as the initial consent to entry only related to the specified purpose and not their intended prohibited acts.


Property

Offences


Checklist – Burglary Section 9(1)(a)

Step 1

Has the accused made an effective entry – i.e. have they crossed a boundary?

If no – no offence. If yes – proceed to step 2.

Step 2

At the time of crossing the boundary was the accused a trespasser?


Step 3

At the time of crossing the boundary as a trespasser did the accused intent to either:

Steal;

Do GBH;

Do unlawful damage to either:

The building; or

Anything in the building.

If no – no offence. If yes – the offence of section 9(1)(a) burglary has been committed.

Learning Point

For an offence to be committed under section 9(1)(a) - the person must at the time

of crossing the boundary as a trespasser have a specific agenda – i.e. the intention to either steal / cause GBH / do unlawful damage.

Exam Trip Up

Watch out for questions where the accused only formed the intent to steal / cause

GBH / do unlawful damage after they crossed the boundary. - no offence under section 9(1)(a) will be committed in such circumstances.

They would only commit the offence under section 9(1)(a) if having formed the intention to cause one of the prohibited consequences in one part of the building, they proceeded to cross a boundary into another part of the building as a trespasser.

Changes Of Heart After Crossing A Boundary

Note that offence under section 9(1)(a) will be complete as soon as the person

crosses the boundary as a trespasser with the requisite intent.

It does not matter if having entered the new part of a building they subsequently have a change of heart and decide against carrying out the intended prohibited consequence.



Checklist – Burglary Section 9(1)(b)

Step 1

Has the accused made an effective entry – i.e. have they crossed a boundary?


Step 2

At the time of crossing the boundary was the accused a trespasser?


Step 3

Having crossed the boundary as a trespasser, did the accused either proceed to:

Steal or attempt to do so - (result); or

Commit GBH or attempt to do so - (result).

If no – no offence. If yes – the offence of section 9(1)(b) burglary has been committed.

Learning Point

A key difference to the offence under section 9(1)(a) is that for the offence to be

committed under section 9(1)(b) the accused does not need to cross the boundary with any specific advance agenda.

All that is required is that:

At the point of crossing the boundary the accused was a trespasser; and

Having crossed the boundary they carried out one of the prohibited results of either:

Stealing or attempting to do so; or

Committing GBH or attempting to do so.

It is therefore possible for a person who had no plans to carry out a prohibited act when

they crossed the boundary as a trespasser to be guilty of an offence under 9(1)(b) if they hatched the plan and executed the prohibited act after their entry into a part of the building.


Property

Offences


Property Offences

Subject 3: Aggravated Burglary

Aggravated Burglary



Penalty In The Crown Court – Life Imprisonment

Aggravated burglary will arise where both:

Step 1 Step 2

A person commits burglary.

....and at the time has with them (readily to hand) one of a “F.E.W.” things.

“FEW Things”?

F E W

Firearm or imitation

firearm

Explosive

Weapon of offence

Firearm includes:

An airgun; and

A pistol.

Imitation firearm includes:

Anything that has

the appearance of a firearm;

Irrespective of whether it is capable of being discharged.

Any article either:

Manufactured for the purpose of producing a practical effect by explosion; or

Intended by a

person having it with them for that purpose.

Any article either:

Made (sole purpose);

Adapted (e.g. rolling

pin with nail driven through it); or

Intended;

For causing either:

Injury; or (e.g. knife, baseball bat, etc)

Incapacity; (e.g.

rope, gaffer tape, handcuffs, etc)

To a person.



At The Time – Learning Point

For The Aggravated Section 9(1)(a) Offence:

It must be shown that they had one of a F.E.W. things with them at the point of

entry – i.e. when they crossed the boundary.

Exam Trip Up

Watch out for questions where the accused:

After having crossed a boundary as a trespasser with the intent to do a

prohibited consequence (section 9(1)(a) offence is complete at this point);

Is disturbed by the occupier and fearing apprehension grabs hold of a weapon lying around in the room to defend themselves.

No offence of aggravated burglary will be committed as the accused did not have the

weapon with them at the point that the section 9(1)(a) offence was complete – i.e. the time they crossed the boundary.

For The Aggravated Section 9(1)(b) Offence:

It must be shown that they had one of a F.E.W. things with them at the point of the

result of either:

Result 1 Result 2

Stealing.

Causing GBH.

Exam Trip Up

Watch out for questions where a burglar who after having crossed a boundary as

trespasser is disturbed and opportunistically picks up a weapon lying around the room and causes GBH to the occupier.

They will have committed the aggravated offence of section 9(1)(b) – as they had the weapon with them at the time of the result of causing GBH.


Property

Offences


Explosive - Exam Trip Up

An empty box with “BOMB” written on it would be insufficient to constitute an

explosive.

However, an empty box with BOMB written on it will constitute a weapon of offence if the burglar gave it to a security guard stating, ‘if you move the movement activated bomb in this box will explode’.

In this set of circumstances, it may be any article made for causing incapacity to a

person.

Weapon Of Offence – Exam Trip Up

If a weapon of offence is made or adapted for causing injury or incapacity to a

person:

You are simply required to have it with you; and

No additional mens rea is required to commit the offence.

If a person has anything else (e.g. a screwdriver which is not made or adapted for

causing injury or incapacity to a person:

Simply having a screwdriver to gain entry is not enough.

It is also necessary for the person to have the intention to use it as a weapon of offence to cause injury or incapacity to a person.



Property Offences

Subject 4: Robbery

Robbery



Penalty In The Crown Court – Life Imprisonment

An offence of robbery is committed by a person who:

Step 1 Step 2

Steals

(i.e. commits a

theft).

...and either:

Immediately before the theft; or

At the time of the theft; In order to facilitate the theft either:

Uses force on any person; or

Puts any person in fear of being then and there subjected to force.

Seeks to put any person in fear of being then and there

subjected to force.

Learning Points

1 - There Must Be A Theft

There must be a theft – if there is no theft there can be no robbery.

Exam Trip Up

Using force to TWOC is not robbery as a TWOC does not amount to an offence of

theft.


Property

Offences


2 - Force Must Be Used Or Threatened

Force must be either:

Action 1 Action 2

Used.

Threatened.

(a) Force Used

The Extent Of Any Force Used

The force used need only be minimal – e.g. nudging into a victim – R v Dawson [1976] 64 Cr App R 170.

Where May The Force Be Applied

The force may be applied either:

Directly onto a person’s body;

Via a struggle wrenching an item a victim was carrying – (e.g.) a bag snatch.

The Force Used Must Be Voluntary

The force used must be voluntary.

If a pickpocket in the process of stealing a purse and is nudged by the crowd, loses their balance and falls into the victim applying involuntary force – no robbery will be committed.

Who May The Force Be Directed Towards

The force used can be directed towards either:

Recipient 1 Recipient 2

The victim.

A 3rd party.



An Example Of The Force Being Directed Towards The Victim

A puts B’s hand in a vice and starts to crush B’s hand (i.e. uses force on the victim).

A then tells B that he will continue to crush B’s hand until they hand over their wallet. B hands over their wallet.

A robbery will be committed as force was used on the victim immediately before the theft and the force was used in order to facilitate the theft.

An Example Of The Force Being Directed Towards A 3rd Party

A, B and C are in the same room. A puts C’s hand in a vice and starts to crush C’s

hand (i.e. uses force on the 3rd party). A then tells B that he will continue to crush C’s hand until B hands over their wallet. B hands over their wallet.

A robbery will be committed as force was used on a 3rd party immediately before the theft and the force was used in order to facilitate the theft.

(b) Threats To Use Force – Puts Or Seeks To Put Any Person In Fear Of

Force Being Used There And Then

The Accused Must Intend For Their Threat To Have The Effect Of Placing

A Person In Fear Of Force Being Used Against Them Self

At the time of making the threat the accused must intend for the recipient of the threat to be placed in fear of force being used against them self.

Exam Trip Up

The accused’s intention in making a threat must be to put a person in fear of force being used against them.

An intention to put the recipient of a threat in fear of force being used against another is insufficient – this would instead constitute a blackmail.

Exam Trip Up - There Is No Need For The Result Of The Person Threatened

Actually Being Fearful Of Force?

It is irrelevant whether the threat did or did not have the result of causing the person threatened to be fearful of force being used against them – R v Khan [2001] LTL 9 April.


Property

Offences


Threats Must Be Capable Of Being Carried Out There And Then

The force threatened must be capable of being carried out there and then at the time of the threat.

Any threat of future force:

Will not be a robbery; and

Will instead be a blackmail.

Exam Trip Up

Threatening force at any place other than at the scene is insufficient - as it will not

be possible the execute such threats there and then.

Exam Trip Up

Threats directed over the telephone will not constitute a robbery - as it will not be possible to execute such threats there and then.

3 - The Timing Of The Use Or Threat Of Force

The use or threat of force must be used or made either:

Juncture 1 Juncture 2

Immediately before the stealing.

At the time of stealing.

Exam Trip Up – Using Violence After The Theft

A robbery will not arise if force is used only to make good an escape after

stealing.

4 - Establishing The Purpose Of The Use Or Threat Of Force

The force used or threatened must be used ‘in order to steal’.

A and B get into a fight and by chance during the fight B’s wallet falls out of B’s

pocket. A seeing the opportunity steals the wallet and runs away.

The offence of robbery will not be committed as the force:

Was used for the purposes of fighting; and

Was not used in order to steal.



Checklist – Robbery – Force Used

Step 1

Was there a theft?

If no – no robbery. If yes – proceed to step 2.

Step 2

Was force used upon either the:

Victim; or

A 3rd party?


Step 3

Was the force used either:


At the time of the theft.

If no – (used after the theft) no robbery. If yes – proceed to step 4.

Step 4

Was the purpose of the force used to facilitate the theft from the victim?

If no – no robbery. If yes – a robbery has been committed.

Checklist – Robbery – Threat Of Force Made

Step 1

Was there a theft?


Step 2

Was a threat of force made to a person?


Step 3

Did the accused intend for the recipient of the threat to be placed in fear of force being used against them self? NB – There is no need to prove the result that the recipient of the threat actually feared the use of force against them.


Step 4

Was the threat capable of being carried out at the time of the threat – i.e. there and then?


Step 5

Was the threat made either:


At the time of the theft.

If no (used after the theft) – no robbery. If yes – proceed to step 6.

Step 6

Was the purpose of the threat to facilitate the theft from the victim?

If no – no robbery. If yes - a robbery has been committed.


Property

Offences


Property Offences

Subject 5: Blackmail

Blackmail



Penalty In The Crown Court – 14 Years Imprisonment

The offence of blackmail will be committed when the accused make an unwarranted demand of another accompanied by menaces with either:

Purpose 1 Purpose 2

A view to (i.e. contemplating the possibility of) a gain for either:

Themselves; or

Another.

The intent to cause a loss to another.

Learning Point

The offence is complete at the point that the demand with menaces is made.

There is no need for the result of gain or loss to be suffered.

Exam Trip Up

The case of Treacy v DPP [1971] AC 537 established that if the demand with

menaces is made via mail the offence is complete at the time of posting and the letter does not have to be received.

Defence To Blackmail

No offence is committed if the accused believed (subjective test) that both:

Step 1 Step 2

They had reasonable grounds for making the demand.

The menace was a proper way of enforcing the demand.



For example - A demand from the electricity board saying pay up or we’ll switch your lights off is fine. However a demand from the electricity board saying pay up or we’ll punch your lights out is not!

Exam Trip Up

Note that the test is subjective in nature based upon the accused’s belief at the time of making the demand – focus on what was going on in the defendant’s head.

Exam Trip Up

It is not an offence to blackmail a person into having sex with you.


Property

Offences


Property Offences

Subject 6: Handling Stolen Goods

Handling Stolen Goods


Either Way Offence


Penalty In The Magistrates Court – 6 Months Imprisonment And / Or A Fine

Step 1

Was the accused acting otherwise than in the course of stealing – i.e. had the goods already been stolen?

If no – no offence. If yes – proceed to step 2

Step 2

Did the accused either know or believe the goods to be stolen?

If no – no offence. If yes – proceed to step 3

Step 3

Did the accused behave dishonestly in carrying out either of the following acts?


Step 4

Did the accused receive the stolen goods for their own benefit?

NB – The accused must personally benefit from the receipt of the stolen goods.

Did the accused either:

Undertake; or Assist;

In the stolen good’s:

Retention; Removal; Realisation; Disposal;

By or for the benefit of

another person?

NB – The accused must be acting for the benefit of another.

Exam Trip Up

This element will not be made out if it is the accused alone who derives the benefit.

If no – no offence – proceed to step 5. If yes – guilty of handling.

Step 5

Did the accused arrange (i.e. took preparatory steps) to do either of the above acts? NB – There is no need for the result of any of the above acts.

If no – no offence. If yes – guilty of handling.



Learning Points – Handling

The Theft Must Be Complete Prior To The Handling

The theft of the goods must be complete before the “handling” activity takes place

- i.e. the handling can only take place after the commission of the theft.

Knowledge Or Belief The Goods Were Stolen

The accused must either know or believe that the goods were stolen – mere

suspicion is insufficient.

Exam Trip Up

“Deliberately turning a blind eye – will amount to knowledge or belief.

Where Can The Goods Be Stolen From?

Handling goods stolen from abroad is an offence in the UK if it also constitutes an

offence in that other country.

What Will Constitute Stolen Goods?

Stolen goods will include either:

Goods 1 Goods 2 Goods 3 Goods 4

The original stolen goods. For example - a DVD.

The proceeds from stolen goods. For example - cash from the sale of the DVD.

Goods obtained by blackmail.

Goods obtained by fraud.

When Will Goods Cease To Be Stolen?

Goods cease to be stolen when they have been taken back into lawful possession.


Property

Offences


Retaining A Wrongful Credit

Section 24A Theft Act 1968

Either Way Offence


Penalty In The Magistrates Court – 6 Months Imprisonment And / Or A Fine

Step

1

Has a wrongful credit been paid into the accused’s account?


Step

2

Does the accused know that the credit is wrongful – (i.e. were they subjectively aware of this fact)?


Step

3

Has the accused acted dishonestly by failing to cancel the credit?

If no – no offence. If yes – guilty of retaining a wrongful credit.



The Damage

The damage or destruction caused to protect the property must be reasonable and proportionate to the risk to property averted.

For example – continuing with the scenario above: Having entered the flat by barging down the door to enable the taps to be turned

off (which it would be reasonable);

It would not subsequently be reasonable to proceed to defecate on the owners bed and put your foot through their TV!

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