AQA LAW04

Criminal Law (Offences against property)

Concepts of Law

AQA LAW04 Specifications 02 - 03

OFFENCES AGAINST PROPERTY

Offences – Definitions – Key Cases 04 - 09

OFFENCES AGAINST PROPERTY

THEFT 10 - 15
ROBBERY 16 - 17
BLACKMAIL 18 - 19
BURGLARY 20 - 21
CRIMINAL DAMAGE 22 - 23
MAKING OFF WITHOUT PAYMENT 24
FRAUD 25 - 26

THE DEFENCE OF DURESS 27

DURESS OF CIRCUMSTANCES 28

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AQA LAW04
Criminal Law (Offences against property)
Concepts of Law

Section A Criminal Offences against Property

Theft and Robbery Actus reus (appropriation, property, belonging to

another).
Mens rea (dishonesty, intention permanently to
deprive (s1 Theft Act 1968).

Theft with the use or threat of use of force (s8

Theft Act 1968).

Burglary Elements of s9(1)(a) and s9(1)(b) Theft Act

1968, burglary in dwellings and other buildings.

Blackmail Unwarranted demand with menaces (s21 Theft

Act 1968).

Fraud Fraud by false representation (s2 Fraud Act

2006) and obtaining services dishonestly (s11
Fraud Act 2006).

Making off without payment Making off without payment (s3 Theft Act
1978),

Criminal Damage Basic (s1(1), Criminal Damage Act 1971) and

aggravated (s1(2), Criminal Damage Act 1971)
and by fire (arson s1(3) Criminal Damage Act
1971).

Defences Intoxication, duress, duress of circumstances,

self-defence/prevention of crime.

Section C: Concepts of Law (see next page)

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Section C CONCEPTS OF LAW

Candidates are required to answer one essay question from a choice of three, Candidates are
expected to relate their knowledge of legal processes, institutions and substantive law, gained
in studying any of the modules, to the concepts which follow.

Law and Morals The distinction between law and morals; the diversity of moral
views in a pluralistic society; the relationship between law and
morals and its importance. The legal enforcement of moral
values.

Fault The meaning and importance of fault in civil law and/or

criminal law.

Balancing conflicting Identification of different interests of parties to disputes.

interests Public interests against private interests, the subordination of
individual right to community interests.

Law and Justice

Judicial Creativity

STRUCTURE OF EXAMINATION PAPER

SECTION A: CRIMINAL LAW (OFFENCES AGAINST PROPERTY)

Answer one question from two (novel situations) on the theme you have studied for this unit.
Each novel situation/scenario will be followed by two questions (a) and (b). Choose one
scenario and answer questions (a) and (b). (Total for this question is 50 marks).

SECTION C: CONCEPTS OF LAW

Answer one question only from this section. It is recommended that you spend 15 minutes
planning your answer in Section C. (Total for this question is 30 marks).

For the purposes of this examination, we will study three concepts in depth (as highlighted
above). This will give us at least one question from the choice of three that we can answer in
depth and detail.)

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CRIMINAL LAW – OFFENCES AGAINST PROPERTY
OFFENCES - DEFINITIONS - KEY CASES
THEFT - s1 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.’

dishonestly - Ghosh (1982) – two-stage test (objective & subjective)

The defendant is dishonest if he knows that, by the standards of the ordinary decent person,
people would regard him as dishonest.

appropriates - Lawrence (1971); Hinks (2000); Gomez (1993); Morris (1984)

Lawrence (1971) took £7 from the Italian student, then claimed ‘no theft because consent
had been given. Court said appropriation had taken place, and ‘consent is never a defence to
theft but may be taken into consideration when assessing the defendant’s
honesty/dishonesty.’

Gomez (1993) supplied the goods, and that was sufficient for an appropriation of the
manager’s right to charge the correct sum for the electrical goods (£18.000).

Hinks (2000) confirmed that consent is no defence to theft. HL stated: “Consent is irrelevant
to the issue of appropriation – though it may be relevant to the issue of dishonest.”

Morris (1984) – the appropriation took place at the moment the D switched the price labels
because he had deprived the owners of the opportunity to offer them for sale at the price they
wanted.

property – is defined in the Act – money; real property; personal property; things in
action; other intangible property.

In Oxford v Moss (1979) knowledge of the questions on an examination paper was held not
to be property:

belonging to another - Turner (1971); Hall (1972)

Turner (1971) confirmed that property rights can be shared. The garage was in possession
and control of his car at the time he took it without permission.

Hall (1972) had the right to spend the deposits as they had not been ear-marked for a specific
purpose. He was not obliged to keep the money in a separate account. The money belonged to
him/his travel agency.

intention of permanently depriving – Lavendar (1994); Lloyd (1985); Velumyl

(1989); Easom (1971)

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Lavendar (1994) appropriated the right of the council to do what they wanted to do with the
new doors in the council block.

Lloyd (1985) had not intended to deprive the owners of their films permanently, and he had
returned them with none of their goodness or quality reduced.

Velumyl (1989) borrowed £1050 from the office safe but was unable to return the original
bank notes, and therefore guilty of permanently depriving their owners of them.

Easom (1971) had rummaged in the handbag but taken nothing. A conditional intention to
steal if he found something of value was not sufficient for theft conviction.

ROBBERY - s8(1) of the Theft Act 1968

‘A person is guilty of robbery if he – steals, - and immediately before or at the

time of doing so, - he uses force on any person – or seeks to put any person in
fear of being – then and there – subject to force.’

Dawson & James (1976) – even a push can constitute sufficient force for robbery; it is up to
the jury to decide if the defendants’ action constituted ‘force’ in the ordinary sense/meaning
of the word.
Clouden (1976) – wrenched a shopping basket from its owner’s grasp; see above

Hale (1979) – The court held that the theft was a continuing offence, which could have
continued while the goods were being removed from the house which is when the offence
took place.
Lockley (1995) – shoplifting cans of beer, then used force on shopkeeper to complete the
theft. The CA held that Hale (1979) still applied and that it was up to the jury to decide
whether the theft was still continuing, i.e. a continuing offence.

BLACKMAIL - s21 THEFT ACT 1968

1 A person is guilty of blackmail if, ‘with a view to gain for himself or another
or with intent to cause loss to another, he makes any unwarranted demand
with menaces; and for this purpose a demand with menaces is unwarranted
unless the person making it does so in the belief –

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a that he has reasonable grounds for making the demand; and
b that the use of the menaces is a proper means of reinforcing the demand.
2 The nature of the act or omission demanded is immaterial, and it is also
immaterial whether the menaces relate to action to be taken by the person
making the demand.

BURGLARY

Under s9(1) of the 1968 Theft Act, burglary can be committed in two ways:

1) By entering any building or part of a building – as a trespasser – and with

intent to – commit theft, grievous bodily harm, rape, or criminal damage.
S9(1)(a)

2) Having entered the premises – as a trespasser, - by stealing or attempting

to steal, or inflicting or attempting to inflict grievous bodily harm.
S(9)(1)(b)
Collins (1973) - the victim invited the defendant to come in and engage in sexual
intercourse – therefore, no trespass; 9(1)(a) quashed because CA could not be sure that
D was a trespasser when he entered the building.

Brown (1985) – the defendant was caught outside a building, leaning in through the window,
rummaging for goods. D was held to be properly convicted of 9(1)(b), his entry clearly
having been ‘effective’, and he was attempting to steal.

Ryan (1996) - the defendant was found trapped with his head and right arm inside the
window of a house; irrelevant whether or not he was capable of stealing anything or not as a
result of his entry. Entry in excess of permission = trespass. 9(1)(b)

Jones & Smith (1976) – stole things from Smith’s father house, so exceeded permission as to
what he could enter the house for; 9(1)(a) entering with intention to commit theft.

Walkington (1979) – entered prohibited part of the building (Oxford Street store), so
becoming a trespasser with intent to steal = burglary. 9(1)(b)
FRAUD (s1 Fraud Act 2006):

fraud by false representation (s2 Fraud Act 2006),

and by failure to disclose (s3 Fraud Act 2006),
and by abuse of position (s4 Fraud Act 2006).

Obtaining services dishonestly (s11 Fraud Act 2006).

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Section 11 makes it an offence for any person, by any dishonest act, to obtain services for
which payment is required, with intent to avoid payment. The person must know that the
services are made available on the basis that they are chargeable, or that they might be. It is
not possible to commit the offence by omission alone and it can be committed only where the
dishonest act was done with the intent not to pay for the services as expected.

MAKING OFF WITHOUT PAYMENT

Under s3(1) Theft Act (1978), a person is guilty of –making off without
payment – if he knows that payment on the spot is required or expected for
goods or services. He commits the offence if he dishonestly makes off without
paying, intending not to pay. (Note: he is also evading his liability to pay)
Brooks & Brooks (1983) - father and daughter made off from restaurant without paying the
bill; later the daughter’s appeal was allowed because she believed her father was going to pay
for both meals.

McDavitt (1981) - refused to pay for meal but waited in toilets for police to arrive; therefore
not guilty of making off without payment because he had not passed the point at which
payment was expected and required.

Allen (1985) left his hotel without paying but phoned manager and promised to leave his
passport as security until bill was paid. Arrested and charged. HL upheld his appeal because
there must be proof that the defendant intended to avoid payment on a permanent basis.

CRIMINAL DAMAGE – AGGRAVATED CRIMINAL DAMAGE - ARSON

Under s1(1) of the Criminal Damage Act 1971, a person is guilty of (basic)
criminal damage if he – without lawful excuse – destroys or damages property.
He must intend or be reckless as to committing the damage.

Under s1(2) of the Criminal Damage Act 1971, a person is guilty of

aggravated damage if he – without lawful excuse – destroys or damages
property – and by doing so endangers the life of another person. He must intend
or be reckless as to committing the damage.

Arson: Where an offence under s1 Criminal Damage Act 1971 is committed

by destroying or damaging by fire, the offence becomes arson – s1(3) Criminal
Damage Act 1971.

Roe v Kingerlee (1986) - defendant splattered cell with mud; cost money to clean up;
therefore criminal damage.

A (a juvenile) v R (1978) – juvenile spat on policeman’s uniform; no cost to clean up;

therefore not criminal damage.

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Gemmell & Richards (2003) - boys lit newspapers under a skip – fire spread and caused £1
million damage; boys did not appreciate the danger, therefore no criminal damage.

Jaggard v Dickinson (1980) - defendant smashed window to get into friend’s house, wrong
house; genuine mistake, and would have been given permission by friend; therefore no
criminal damage.

In Miller (1983) it was held that arson could be committed by omission; defendant
accidentally started fire, then failed to do anything to prevent the damage.

Steer (1987) fired rifle at door and windows of house causing criminal damage. But this was
not aggravated criminal damage because the damage caused thereby did not risk the lives
of the people in the house.

THE DEFENCE OF DURESS

Duress and duress of circumstances

The case of R v HASSAN (2005) has restricted a defendant’s chances of proving defence of
duress. The court wanted to restrict the use of duress so that only people who really deserve it
can use it.

Gill (1963) - defendant claimed he and his wife had been threatened with violence if he
didn’t steal lorry; but duress not accepted because he had a ‘safe avenue of escape’ – time to
inform the police.

Hudson & Taylor (1971) - two girls lied under oath; frightened of being cut up; court
accepted the defence because police cannot always provide round-the-clock protection.

Bowen (1996) - low IQ – believed he and his wife would be blown up, so obtained goods
for gang by deception. Low IQ not accepted, but other characteristics may be acceptable;
pregnancy, serious physical disability, recognised mental illness.

Willer (1986) - defendant drove car down one-way street to escape gang of youths; first
time the court accepted the defence of duress of circumstances.

Valderrama-Vega (1985) - defendant imported cocaine; claimed duress because of

cumulative death threats made by gangsters. Cumulative duress accepted.

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CRIMINAL OFFENCES against PROPERTY
Detailed notes made from Ms trumble PPT and research.

THEFT is defined in s1 of the Theft Act 1968 which states that: A person is guilty of theft if
he dishonestly appropriates property belonging to another with the intention of permanently
depriving the other of it.

DISHONESTLY (part of the mens rea)

S2 – dishonestly – there is no definition of what is meant by ‘dishonesty’ in the Theft Act but
it is clear that if all elements of the theft are present, the motive of the defendant is not
relevant. However, the Act makes it clear that the ‘appropriation’ of property will not be
regarded as theft if (a) the defendant has a legal right to the property, (b) the other person
would have consented to the appropriation, or (c) the person to whom the property belongs
cannot be discovered by taking reasonable steps.

The Ghosh test

GHOSH (1982) was a doctor acting as a locum consultant in a hospital. He claimed fees for
an operation he had not carried out. He said that he was not dishonest because he was owed
the same amount by the hospital for consultation fees. The trial judge directed the jury that
they must apply their own standards to decide if what Ghosh did was dishonest. He was
convicted and appealed against the conviction.

The Court of Appeal set out a two-part test to be used in assessing the honesty or dishonesty
of a defendant. The Ghosh test has both an objective element and a subjective element.
These are:

 Was what was done dishonest according to the ordinary standards of reasonable and
honest people?

 Did the defendant realise that what he was doing was dishonest by those standards
(the standards of reasonable and honest people)?

The Ghosh test means that the jury have to start with an objective test. Was what was done
dishonest by the ordinary standards of reasonable and honest people? If the act would not be
regarded as dishonest by these people, that is the end of the matter and the prosecution fails.
The defendant is not guilty. However, if the jury decide what it was dishonest by those
standards, they must then decide whether the defendant knew it was dishonest by those
standards. The second test is not totally subjective because the defendant is judged by his
knowledge of what those ordinary standards were. This prevents a defendant from saying
that, although he knew ordinary people would regard his actions as dishonest, he did not
think those standards applied to him.

In a trial the judge will use the Ghosh test to direct the jury only where there is an issue about
dishonesty.

APPROPRIATION (part of the actus reus)

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S3 – appropriates – the important words in s2 are ‘any assumption by a person of the rights
of the owner amounts to an appropriation’. The rights of the owner including selling the
property or destroying it as well as such things as possessing it, consuming it, using it,
lending it or hiring it out. So for there to be an appropriation, the thief must do something that
assumes (takes over) one of the owner’s rights.

PITHAM and HEHL (1977) - D had sold furniture belong to another person. This was held
to be an appropriation. The offer to sell was an assumption of the tights of an owner and the
appropriation took place at that point. It did not matter whether the furniture was removed
from the house or not. Even if the owner was never deprived of the property, D had still
appropriated it by assuming the rights of the owner to offer the furniture for sale.

MORRIS (1983) - D had switched the price labels of two items on the shelf in a
supermarket. He had then put one of the items, which now had a lower price on it, into a
basket provided by the store for shoppers and taken the item to the checkout. He had not gone
through the checkout when he was stopped and arrested. His conviction for theft was upheld.
Lord Roskill in the House of Lords stated that “It is enough for the prosecution if they have
proved … the assumption of any of the rights of the owner of the goods in question.”

LAWRENCE (1971) - appropriation and consent - An Italian student, who spoke very
little English, arrived at Victoria Station and showed an address to Lawrence, a taxi driver.
The journey should have cost about 50p but Lawrence told him it was expensive. The student
got out a £1 note and offered it to the driver. Lawrence said it was not enough and so the
student opened his wallet and allowed Lawrence to help himself to another £6. In court,
Lawrence argued that he had not appropriated the money because the student had consented
to him taking it. Both the Court of Appeal and the House of Lords rejected this argument and
held there was appropriation in this situation.

GOMEZ (1993) - appropriation and consent – Gomez was the assistant manager of a
shop. He persuaded the manager to sell electrical goods worth over £17.000 to an accomplice
and to accept payment by two cheques, telling the manager that the cheques were as good as
cash. There cheques were stolen and had no value. Gomez argued there had been no theft
because the manager had consented to hand over the goods.

The case was decided by the House of Lords where the majority by 4-1 agreed than
appropriation had taken place. The right of the manager to sell the goods and obtain the
correct price had been appropriated. The Lords pointed out that the decision in the case of
Lawrence (1971) had confirmed that ‘consent is no defence to appropriation’ though it can
be taken into consideration as to the honesty or dishonesty of the defendant.

HINKS (2000) – consent without deception – Hinks was a 38-year-old woman who had
befriended a man with a low IQ. The man was very naïve but he was mentally capable of
understanding the concept of ownership and or making a valid gift. Over a period of about
eight months, Hinks accompanied the man on numerous occasions to his building society
where he withdrew money. The total was about £60.000 and this money was deposited in

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Hinks’ account. The man also gave Hinks a television set. The judge directed the jury to
consider whether the man was so mentally incapable that Hinks herself realised that ordinary
decent people would regard it as dishonest to accept a gift from him. Hinks was convicted of
theft of the money and of the TV set.

On appeal it was argued that if the gift was valid, the acceptance of it could not be theft. Four
of the five judges decided that, even though the property was a valid gift, there was still an
appropriation. The conviction was upheld. A major argument against the ruling in Hinks is
that in civil law the gift was valid and the TV set belonged to Hinks. Lord Steyn, in the
leading judgement, accepted that this was the situation but he considered it was irrelevant to
the decision.

S4 - PROPERTY (part of the actus reus)

For there to be theft the defendant must have appropriated ‘property’. Section 4 of the Theft
Act 1968 gives a very comprehensive definition of property, which means that almost
anything can be stolen. The definition in s4(1) of the Act reads:
“‘Property includes money and all other property real or personal, including
things in action and other intangible property.”

o Money - coins and banknotes of any currency.

o Personal property – all moveable items: books, CDs, jewellery, clothes, cars,
aeroplanes, tanks, sheets of paper, even dead bodies and body parts as was held in
Kelly and Lindsay (1998)

KELLY and LINDSAY (1998) – Kelly was a sculptor who asked Lindsay to take body parts
from the Royal College of Surgeons where he worked as a laboratory assistant. Kelly made
casts of the parts. They were convicted of theft and appealed on the point of law that body
parts are not property. The Court of Appeal held that, though a dead body was not normally
property within the definition of the Theft Act, the body parts had become property because
they had acquired ‘different attributes by virtue of the application of skill, such as dissection
or preservation techniques, for exhibition or teaching purposes.’

o Real property is the legal term for land and buildings, hence the term real estate.
This makes it a theft, amongst other thefts, to dig turf from someone’s lawn, or to
dismantle a wall and take the bricks. Tenants may not take fixtures or structures from
land rented by them

o Things in action – A thing in action is a right which can be enforced against another
person by an action in law. The right itself is a property under s4 of the Theft Act. An
example is a bank account. Therefore, if you take money out of my bank account
dishonestly, you have appropriated my right to take that money and you have
committed a theft. The same rule can be applied to dishonest use of someone else’s
cheque, credit card or debit card.

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 o Other intangible property refers to other rights that have no physical presence but
which can be stolen under the Theft Act. For example, a patent (the right to an
original invention) can be stolen.

However, there are some types of intangible property that do not come within the
definition of Theft. In Oxford v Moss (1979), knowledge of the questions on an
examination paper was held not to be property:

OXFORD v MOSS (1979) – Moss was a university student who acquired a proof
copy of an examination paper he was due to sit. It was accepted that Moss did not
intend to permanently deprive the university of the piece of paper on which the
questions were printed. But he was charged with theft of confidential information (ie
the knowledge of the questions). He was found not guilty.

Things which cannot be stolen

 Mushrooms, flowers, fruit or foliage growing wild on any land – unless

he does it for reward or sale or other commercial purpose.

 Wild creatures, tamed or untamed, shall be regarded as property; but a

person cannot steal a wild creature not tamed nor ordinarily kept in
captivity, or the carcase of any such creature…. The effect of this subsection
is that it is not theft if a wild creature such as a deer is taken from the grounds of a
large estate (though there is an offence of poaching) but it is theft if the deer is taken
from a zoo, as in this case it is ordinarily kept in captivity.

Electricity, an intangible property, cannot be stolen but there is a separate offence

under s11 of the Theft Act 1968 of dishonestly using electricity without due authority,
or dishonestly causing it to be wasted or diverted.
BELONGING TO ANOTHER (part of the actus reus)

In order for there to be a theft of property, that property must ‘belong to another’. However,
s5(1) of the Theft Act 1968 gives a very wide definition of what is meant by ‘belonging to
another’. One reason for making the definition wide is so that the prosecution does not have
to prove who is the legal owner.

Property shall be regarded as belonging to any person having possession or

control of it, or having in it any proprietory right or interest…..”

The key phrases here are: any person having possession or control of it
and: any proprietory right or interest.

TURNER (NO. 2)(1971) - Turner, the defendant, left his car at a garage for repairs. It was
agreed that he would pay for the repairs when he collected the car after the repairs had been
completed. When the repairs were almost finished, the garage left the car parked on the
roadway outside their premises. Turner used a spare key to take the car during the night

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without paying for the repairs. The Court of Appeal held that the garage was in possession or
control of the car and so Turner was found guilty of stealing his own car.

Property received under an obligation

There are many situations in which property (usually money) is handed over to the defendant
in the basis that the defendant will keep it for the owner or will deal with it in a particular
way. For theft to occur, there must be an obligation to retain and deal with the property in a
particular way.

DAVIDGE v BUNNETT (1984) – The defendant was given money by her flatmates To pay
the gas bill but instead used it to buy Christmas presents. The Defendant was found guilty of
theft because she was under a legal obligation to use the money only for the specified
purpose.

HALL (1972) was a travel agent who received deposits from clients for air trips to America.
He paid these deposits into the firm’s general account but never organised any tickets and
was unable to return the money. He was convicted of theft but his conviction was quashed on
appeal because when he received the deposits he was not under an obligation to deal with the
money in a particular way. The Court of Appeal stressed that each case depended on its facts.

Property got by mistake

Anyone who receives property by mistake is under an obligation to restore that property.
An intention not to make restoration is regarded as an intention to deprive that person of the
property or proceeds.

S5 - INTENTION OF DEPRIVING PERMANENTLY

VELUMYL (1989) - Velumyl, a company manager, took £1050 from the office safe. He
said that he was owed money by a friend and that he was going to replace the money when
his friend repaid him. The Court of Appeal upheld his conviction for theft as he had the
intention of permanently depriving the company of the actual banknotes he had taken from
the safe – even if he intended replacing them with other banknotes to the same value later.

LAVENDER (1994) - Lavender took the doors from a council property that was being
repaired and used them to replace the damaged doors in his girlfriend’s council flat. The
doors were still in the possession of the council but had been transferred without permission
from one council property to another. The Divisional Court held that the question was
whether he intended to treat the doors as if they were his own, regardless of the rights of the
council. The answer to this was yes, so the defendant was guilty of theft.

LLOYD (1985) – The projectionist at a local cinema gave Lloyd a film that was showing at
the cinema so that Lloyd could make an illegal copy. Lloyd returned the film in time for the
next screening at the cinema. His conviction for theft was quashed because by returning the
film in its original state, it was not possible to prove an intention permanently to deprive.

However, if I borrow something and keep it until ‘the goodness, the virtue, the practical
value… has gone out of the article’, then I will be guilty of the theft of that article.

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EASOM (1971) – Easom picked up a handbag in a cinema, rummaged through the contents
and then replaced the handbag without having taken anything. His conviction for theft of the
handbag was quashed. There was no evidence that the defendant had intended permanently to
deprive the owner of the handbag or items in it so he could not be guilty of theft. A
conditional intent to steal is not sufficient to support a charge of theft.

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ROBBERY

Robbery is an offence under s8 of the Theft Act 1968. In effect it is a theft which is
aggravated by the use of force or by the threat of force.

“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.”

1. There must be a completed theft for a robbery to have been committed.

ROBINSON (1977) - Robinson ran a clothing club and was owed £7 by the victim’s wife.
Robinson approached the victim and threatened him. During a struggle the man dropped a £5
note. Robinson took it, claiming that he was still owed £2. His conviction for robbery was
quashed because the trial judge had wrongly directed the jury that Robinson had honestly to
believe he was entitled to get money in that way. In fact if a defendant has a genuine belief
that he had a right in law to the money (when it was dropped), then his actions were not
dishonest.

2. Where force is used to steal, then the moment the theft is complete
there is a robbery.

CORCORAN v ANDERTON (1980) - One of the defendants hit a woman in the back and
tugged at her bag. She let go of the bag and it fell to the ground. The defendants ran off
without the bag (because the woman was screaming and attracting attention). The Court held
that the theft was complete at the moment the woman let go of the bag so the defendants were
guilty of robbery.

3. Force or threat of force - the amount of force used can be small.

DAWSON and JAMES (1976) – One of the defendants pushed the victim causing him to
lose his balance which enabled the other defendant to take his wallet. They were convicted of
robbery. The Court of Appeal held that the word ‘force’ was an ordinary word and that it was
for the jury to decide if force had been used. Conviction upheld.

CLOUDEN (1987) - The Court of Appeal held that Clouden was guilty of robbery because
he had wrenched a shopping basket from the victim’s hand. He would not be guilty of
robbery if he had only snatched the basket from the victim’s lap. However, a defendant
would be guilty of robbery if he used threatening words or gestures to put the victim in the
fear of being then and there subjected to force.

4. Force immediately before or at the time of the theft

HALE (1979) - The two defendants knocked on the door of a house. When a woman
opened the door they forced their way into the house. One defendant out his hand over her
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mouth to stop her screaming while the other defendant went upstairs to see what he could
find to take. He took a jewellery box. Before they left the house they tied up the householder.

On appeal the defendants argued that the theft was complete as soon as the second defendant
picked up the jewellery box, so the use of force in tying up the householder was not at the
time of stealing. However, the Court of Appeal upheld the convictions for robbery. The Court
of Appeal thought that the jury could have come to the decision that there was force
immediately before the theft when one of the defendants put his hand over the woman’s
mouth. In addition, the Court of Appeal suggested that the tying up of the woman could also
be force for the purpose of the robbery as they held the theft was still ongoing. We
describe this situation as a continuing act.

LOCKLEY (1995) - Lockley was caught shoplifting cans of beer from an off-licence. He
used force on the shopkeeper who tried to stop him from escaping. Lockley appealed on the
basis that the theft was complete before he used force. The Court of Appeal disagreed,
describing the theft as ‘ongoing’ and upheld the conviction.
Remember for robbery occur that the force must be used for the purpose of theft. Take the
situation where D had an argument with V and punches him, knowing him out. D then sees
some money that has fallen out of V’s pocket and decides to take it. The force was not used
for the purpose the theft and D is not guilty of robbery – though D will be guilty of two
offences: an assault and a theft.

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BLACKMAIL - s21 THEFT ACT 1968

1 A person is guilty of blackmail if, ‘with a view to gain for himself or another
or with intent to cause loss to another, he makes any unwarranted demand
with menaces; and for this purpose a demand with menaces is unwarranted
unless the person making it does so in the belief –

a that he has reasonable grounds for making the demand; and

b that the use of the menaces is a proper means of reinforcing the demand.

2 The nature of the act or omission demanded is immaterial, and it is also

immaterial whether the menaces relate to action to be taken by the person
making the demand.

The actus reus of blackmail are 1 the unwarranted demand made by the blackmailer, and 2
the menaces used by the blackmailer.

The ‘unwarranted demand’ can be express or implied. The defendant may demand openly
or suggest implicitly that the victim must fulfil a demand to which the defendant has no legal
entitlement, then the demand will be unwarranted. In Collister and Warhurst (1955) two
policeman, the defendants, implicitly threatened to report the victim for a sexual offence.
Although the policemen used the words, “Remember, sir, I am now making an appeal to your
benevolence,” it was clear they were demanding payment for not reporting the offence. It is,
of course, up to the jury, taking all the evidence into consideration, to decide whether or not
the defendant’s conduct amounts to blackmail.

A demand is made when a defendant has done all he can to communicate the demand. In
Treacy v DPP (1971), the demand was made when a letter was posted. This principle can be
applied to sending an e-mail or a text, assuming there is no evidence to suggest the message
has not been delivered.

The demand must be unwarranted, i.e. the defendant is not legally entitled to whatever he is
demanding. For example, a demand for money legally owed to the defendant by the victim
would not be viewed as ‘unwarranted’ because the defendant would believe he had
reasonable ground for making the demand. However, this does not entitle the defendant to
make the demand with ‘menaces’.

The word ‘menaces’ has a broad interpretation. As Lord Wright stated in Thorne v. Motor
Trade Association (1937): “the word menace… is not limited to threats of violence, but as
including threats of any action detrimental to or unpleasant to the person addressed. It may
also include a warning that, in certain events, such action is intended.”

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The effect of the menaces but be such that a reasonable person would be so influenced or
fearful that the demand would be met. However, if the threat is made to someone who is
known by the defendant to be particularly timid (Garwood, 1987), then the jury are entitled
to assume these menaces amount to the actus reus of blackmail. A good example of
‘menaces’ that are deemed as trivial can be seen in Harry (1974) where the defendant, a
student involved in a university ‘rag week’ charity ‘threatened’ local shopkeepers with
‘inconvenience’ if they did not support the students’ charity activities. This threat was
regarded by the court as trivial and typical of student pranks during charity week.

The mens rea of blackmail has three aspects beginning with “an intention to make a demand
with menaces.” The defendant must also make this demand with a view to gain something for
himself or for another person, or with the intent to cause loss to another person. In other
words, the blackmailer intends to make an unwarranted demand with menaces, and he does
so to get something out this demand – even if it only causing loss to the victim. Let’s say for
example that someone was going after a job I wanted, so I sent them a letter saying that if
they turned up for the interview, I would let their wife know they were having an affair. This
amount to blackmail.

The third aspect of mens rea is this: not believing he has reasonable grounds for making the
demand, or not believing that the use of the menaces is a proper means of reinforcing the
demand. In other words, the defendant might have grounds for defence if (a) he believed he
had reasonable grounds for making the demand, or (b) the use of menaces was a proper
means of reinforcing the demand. The defendant must genuinely hold this belief, but a belief
that would generally be viewed as immoral is no defence.

We can see this in the case of Harvey (1981). The defendant was involved in a drug deal that
went wrong. He paid £20.000 for something worthless. He then kidnapped the seller’s wife
and child. He threatened to maim and rape them if the seller did not return the money. Harvey
(1981) argued that he was justified in making these threats/menaces to get his money back.
The jury, however, held that the threats remained immoral and unwarranted regardless of the
circumstances. Harvey (1981) wasc onvicted of blackmail.

In the examination, when discussing whether or not the defendant is guilty of blackmail, ask
and answer these questions:

1. Did the defendant make an unwarranted demand?

2. Did the defendant offer serious ‘menaces’?
3. What did the defendant hope to get out of these menaces?
4. Did the defendant have any reasonable grounds for making the demands?
5. Was there any reasonable justification for the defendant’s use of menaces?

Blackmail originally referred to the payments made by English folk who lived along the
border between England and Scotland. Blackmail was paid to Scottish chieftains in exchange
for protection from thieves and marauders who generally were the Scots themselves.

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BURGLARY

Burglary is an offence under s9 of the Theft Act 1968. Burglary can be committed in two
ways:

o Under s9(1)(a) a person is guilty of burglary if he - enters any building or part of a

building – as a trespasser – with intent – to steal, inflict grievous bodily harm, or do
criminal damage to the building or anything in it.
o Under s9(1)(b) a person is guilty of burglary if – having entered a building or part of a
building – as a trespasser – he steals or attempts to steal anything, or attempts to
inflict grievous bodily harm on any person in the building.

Entry

COLLINS (1972) - Collins, having had quite a lot to drink, decide he wanted to have sexual
intercourse. He saw an open window and climbed a ladder to look in. He saw there was a
naked girl asleep in bed. He then went down the ladder, took of all his clothes except for his
socks and climbed back up the ladder to the girl’s bedroom. As he was on the window sill
outside the room, the girl woke up. Thinking Collins was her boyfriend, the girl helped him
into the room where they had sex.

Collins was convicted of burglary under s9(1)(a), which at that time included ‘with intent to
rape’, but his conviction was quashed on appeal because (a) the girl had invited him into
the room, and (b) she had consented to sex. In this case, the Court of Appeal said the jury
had to be satisfied that the defendant had made “an effective and substantial entry” (into the
room). However, “effective and substantial entry” was modified to “effective entry” in
Brown (1985).

BROWN (1985) was standing on the ground outside but leaning in through a shop window
rummaging through goods. His feet and lower part of his body were outside the shop, but the
top part of his body and his arms were inside the shop. The Court of Appeal upheld the
conviction for burglary, stating that “effective entry” was sufficient for burglary. However,
‘effective’ entry does not appear to be the criterion/standard used in Ryan (1996).

RYAN (1996) was trapped when trying to get through a window into a house at 2.30 am. His
head and right arm were in the house but the rest of his body was outside. The fire brigade
had to be called to release him. This could hardly be called an ‘effective entry’. However, the
Court of Appeal upheld his conviction for burglary, saying that there as evidence on which
the jury could find that the defendant had ‘entered’ the building.

Part of a building

The phrase ‘part of a building’ is used to cover situations in which the defendant may have
permission to be in one part of the building (and therefore is not a trespasser in that part) but
does not have permission to be in another part.

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WALKINGTON (1979) went into a counter area in a shop and opened a till. This area was
clearly marked by a three-sided counter. Walkington's conviction for burglary under s9(1)(a)
was upheld as he had entered part of a building (the counter area) as a trespasser with the
intention of stealing. The critical point is that the counter area was not an area where
customers were permitted to go. It was for the use of staff. So Walkington was a trespasser.

Going beyond permission

SMITH and JONES (1976) - Smith and his friend, Jones, went to Smith’s father’s house in
the middle of the night and took two television sets without the father’s knowledge or
permission. The father stated that his son would not be a trespasser in the house; he had a
general permission to enter. However, the Court of Appeal upheld the convictions for
burglary ruling that:

‘a person is a trespasser for the purpose of s9(1)(b) of the Theft Act 1968 if he
enters the premises of another knowing that he is entering in excess of the
permission that has been given to him to enter, or being reckless whether he is
entering in excess of that permission.’

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CRIMINAL DAMAGE

THE BASIC OFFENCE OF CRIMINAL DAMAGE

The basic offence is set out in s1(1) of the Criminal Damage Act 1971 which states that:

‘A person who – without lawful excuse – destroys or damages any property –

belonging to another – intending to destroy or damage any such property – or
being reckless as to whether any such property would be destroyed or damaged
– shall be guilty of an offence.

Destroy or damage

ROE v KINGERLEE (1986) - Defendant had smeared mud on the walls of a police cell. It
cost £7 to have it cleaned off. This was held to be (criminal) damage even though it was not
permanent. Court commented that whether property has been damaged is a ‘matter of fact
and degree’ (what and how much damage?)

MORPHITIS v SALMON (1990) – The defendant caused scratches to a scaffolding pole.

The Court held this was not damage as scaffolding was likely to get scratched in ordinary use
and a scratch did not affect its usefulness or integrity. However, a scratch on car would
almost certainly be considered damage.

BLAKE v DPP (1993) – Defendant wrote a Biblical quotation on a concrete pillar. This
needed to be cleaned off and so it was held to be criminal damage. This follows Roe v
Kingerlee (1986). The courts will consider whether it has cost money, time and/or effort to
remove the damage.

A (A Juvenile) v R (1978) – spat at a policeman and spit landed on the policeman’s uniform.
It was held that this was not damaged as it could be wiped off with a wet cloth with very little
effort.

FIAK (2005) was arrested on suspicion of being in charge of a vehicle when he was over the
limit for alcohol, and for assault on a police officer. He was taken to a police station and
placed in a cell. He put a blanket in the toilet in the cell and flushed the toilet several times.
This caused water to overflow and flood the cell and two adjoining cells. The blanket was not
visibly soiled but it had to be cleaned and dried before it could be used again. The cells also
had to be cleaned. This was held to be criminal damage.

Mens rea of criminal damage

The defendant must do the damage either intentionally or recklessly.

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PEMBLITON (1874) threw a stone at some men with whom he had been fighting. The stone
missed them but hit and broke a window. Pembliton was not guilty of causing damage to the
window as he had no intention to damage the window (or any other property) even though he
intended to throw the stone.

G AND ANOTHER (2003) were two boys aged 11 and 12 years. During a night out
camping, they went into the yard of a shop and set fire to some bundles of newspapers which
they threw under a large wheelie bin. They then left the yard. They expected that, as there
was a concrete floor under the wheelie bin, the fire would extinguish itself. In fact the bin
caught fire and this spread to the shop and other buildings causing about £1 million worth of
damage. The boys were convicted under both s1 and s3 of the Criminal Damage Act 1971.

The House of Lords quashed their convictions and ruled that a defendant cannot be guilty
unless he realises the risk and decides to take it. If the defendant could not realise the risk,
then he could not have the mens rea and could not be guilty. This, of course, is a
SUBJECTIVE TEST – did the defendant himself realise the risk he was taking?

Lawful excuses - Intoxicated mistakes

There are two lawful excuses available but only for the basic offence. They apply where the
defendant honestly believes that either:

a) The owner (or another person with rights in the property) would have consented to the
damage; or
b) Other property was at risk and in need of immediate protection and what the
defendant did was reasonable in all the circumstances.

The defence of mistake can be used even where the defendant makes a mistake because
he/she is intoxicated:

JAGGARD v DICKINSON (1980) - The defendant, who was drunk, went to what she
thought was a friend’s house. There was no-one in and so she broke a window to get in as she
believed (correctly) that her friend would consent to this. Unfortunately, in her drunken state,
she had mistaken the house and had actually broken into the house of another person. The
Divisional Court quashed her conviction reasoning that a belief may be honestly held even
though that belief is caused by intoxication, stupidity, forgetfulness or inattention, What
matters is that the belief is honestly held.

MAKING OFF WITHOUT PAYMENT

‘Making off without payment’ is defined in s3 of the Theft Act 1978:

A person who knowing that payment on the spot for any goods supplied or
services done is required or expected of him, dishonestly makes off without
having paid as required or expected and with intent to avoid payment.’

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Actus reus: The actual spot that the defendant ‘makes off’ from is usually the place or point
where payment is required. The payment must be required or expected at the time the
defendant makes off, and payment must be legally enforceable. Common examples of goods
or services include filling a car with petrol and driving off, or eating in a restaurant and
leaving without paying.

Mens rea: dishonesty (Ghosh test) – knowledge that payment is required –

intend to avoid payment permanently.

McDAVITT (1981) refused to pay for his meal in a restaurant. He made his way to the door
but decided not to leave as the police had been called. The Crown Court decided that he had
not made off as he had not left the restaurant. It did not matter that he had intended to leave
the restaurant without paying – he had not carried out the required actus reus.

VINCENT (2001) stayed at two hotels for 5 weeks and ran up a bill of £1.300. He left the
hotel after arranging with the managers to pay at a later date. The Court of Appeal quashed
his conviction. He had not committed the actus reus of making off without paying as
payment was not expected at the time he left the hotels. It did not matter that the defendant
never intended to pay or that he had dishonestly made arrangements to pay later.

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FRAUD ACT 2006
Under s1 of the Fraud Act 2006, a person is guilty of Fraud if he commits fraud by:

S2 – false representation
S3 – failing to disclose information
S4 – abuse of position

FRAUD BY FALSE REPRESENTATION

There are many ways in which a representation can be made. It may be spoken, written or
published or it may be implied by conduct – e.g. handing over a stolen credit card to make a
purchase; the defendant is falsely representing that he as the right to use the stolen credit card
to withdraw funds.

Actus reus – the actus reus is complete when a false representation is made. It is the
representation that is the offence, not the consequences of the representation.
The representation will be false is (a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading

Meaning of representation: Any representation as to fact or law, including a representation

as to the state of mind of (a) the person making the representation,
or (b) any other person.

Mens rea – The defendant must know that the representation was or might be false.
He or she must have acted dishonestly according to the Ghosh test. The representation has to
be made with the intention of making a gain or causing loss or risk to another. It is NOT
necessary for the gain or loss to actually happen; the false representation is sufficient.

OBTAINING SERVICES DISHONESTLY

This new offence of obtaining services dishonestly
was created by s11 of the Fraud Act 2006.

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Actus reus – obtaining services for which payment is required without any payment having
been made.

Mens rea – the defendant must know that the services are made available on the basis that
payment has or will be made. The defendant’s intention must be to avoid payment in full or
in part. The obtaining must be caused by a dishonest act and cannot be an omission.

Examples: Climbing over a wall to watch a football match without paying, knowing that
payment is required, and knowing that the service is provided on the basis that spectators will
pay for it. - Using an unauthorised card in a satellite decoder to receive premium channels,
knowing that viewers are expected to pay for the channels.

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THE DEFENCE OF DURESS
Duress is a complete defence for most crimes; however, duress is not available for the
offence of murder (Howe, 1987) nor for attempted murder (Gotts, 1991). There are two types
of duress: duress by threats, and duress by circumstances. If the defendant employs the
defence of duress, it is up to the prosecution to prove the defendant was not under duress at
the time of the offence.

DURESS BY THREATS

For the defence of duress by threats, the defendant has both the actus reus and the mens rea
for the crime, but conviction is escaped because his/her will was overcome by personal
threats or by threats to family members or threats to people for whom the defendant is
responsible.

The test for duress was established by the Court of Appeal in R v Graham (1982).
The test has two parts – subjective and objective:

1. Did the defendant reasonably believe that he or she would be killed or physically
injured if he or she did not comply with the threats?

2. Would a sober person of reasonable firmness have done the same as the defendant?

The 1st (subjective) part of the test sets out a number of conditions:

 The threats must be serious, unavoidable and imminent.

 There must be no opportunity to inform the police or avoid committing the crime (no
safe avenue of escape)
 No need for an actual threat as long as the defendant honestly believed there was an
imminent threat. The mistake must be honest and reasonable.
 The defence will not be available where the defendant has voluntarily associated
himself or herself with criminals.

The 2nd (objective) part of the test:

 Requires that a sober person of reasonable firmness would have done the same as the
defendant in the circumstances.
 The court will, however, take into account the defendant’s age, sex, physical disability
or mental illness.

Key point: The case of R v HASSAN (2005) has restricted a defendant’s chances of proving
defence of duress. The court wanted to restrict the use of duress so that only people who
really deserve it can use it.

DURESS BY CIRCUMSTANCES

Like duress by threats, this type of duress requires fear of imminent death or serious injury
(Baker and Wilkins, 1997).

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It has been used mainly as a defence for driving offences where defendants claim to have felt
forced to commit a driving offence due to the circumstances in which they found themselves
rather than because they were threatened to do so.

The defence has been extended to other crimes, e.g. possession of a firearm (Pommell, 1995)
or hi-jacking (Abdul-Hussain, 1999) or driving while disqualified (Martin, 1989) when
Martin drove his stepson to work because his suicidal wife had threatened to kill herself if he
did not.

R v HASAN (2005)

Hasan carried out a number of thefts, including burglary and attempt to steal money from a
safe, but claim he was under severe duress from a violent drug dealer. The threats to Hasan
and his family were very real, and the drug dealer also sent a minder to make sure Hasan
carried out the crimes. However, the House of Lords upheld the convictions, stating that the
defence of duress was not available to the defendant because of his voluntary association with
these violent criminals in the past.

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