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Theft and Related Offences 

Theft and Related Offences
Chapter:
Theft and Related Offences
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806103.003.0014
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Subscriber: null; date: 15 August 2018

1.14.1 Introduction

Many offences contained in this chapter are very common and you will be aware of the physical, emotional and financial cost to victims of offences such as theft, burglary and robbery. The prevalence and impact that these offences have on society as a whole can leave no doubt as to their importance.

1.14.2 Theft

Offence Theft—Theft Act 1968, s. 1

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 1 states:

  1. (1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly.

Keynote

The final line of s. 1 is important and states that the words ‘“thief” and “steal” shall be construed accordingly’. This means that in any Theft Act 1968 offence where the words ‘thief’ and/or ‘steal’ are used (such as in the Theft Act 1968 offence of robbery (s. 8) or handling stolen goods (s. 22)), the ‘thief’ is the person who commits the theft offence and ‘steal’ means to commit theft. All of the elements of the theft offence must be present to ‘steal’. The definition of robbery (s. 8) tells us that ‘A person is guilty of robbery if he steals’. If an element of theft has not been satisfied then the defendant will not commit theft and will not ‘steal’. No ‘steal’ = no robbery.

Where the property in question belonged to D’s spouse or civil partner, a prosecution for theft may only be instituted against D by or with the consent of the DPP (s. 30(4)). This restriction must also apply to charges of robbery or of burglary by stealing, etc. but does not apply to other persons charged with committing the offence jointly with D; nor does it apply when the parties are separated by judicial decree or order or under no obligation to cohabit (s. 30(4)(a)).Theft from businesses (classed as ‘theft from a shop’) involving first-time offenders who are not substance misusers and where the value of the goods stolen is less than £100 can be dealt with by way of fixed penalty notice (see General Police Duties, para. 4.1.15).

1.14.2.1 Low-value Shoplifting

Section 176 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts a new section (s. 22A) into the Magistrates’ Courts Act 1980, which provides that low-value shoplifting is a summary offence. This is subject to one exception: where a person accused of shoplifting is 18 or over, they are to be given the opportunity to elect Crown Court trial, and if the defendant so elects, the offence is no longer summary and will be sent to the Crown Court (s. 22A(2)).

Otherwise, the effect of s. 22A is that offences of low-value shoplifting cannot be sent to the Crown Court for trial or committed there for sentence; they will attract a maximum penalty of six months’ custody; and they will be brought within the procedure in s. 12 of the Magistrates’ Courts Act 1980 that enables defendants in summary cases to be given the opportunity to plead guilty by post.

Shoplifting is not a specific offence as such but constitutes theft under s. 1 of the Theft Act 1968; accordingly s. 22A(3) defines shoplifting for the purposes of this provision, which applies if the value of the stolen goods is £200 or less. For these purposes the value of the goods is to be determined by the price at which they were offered for sale rather than the intrinsic value, and also for the value involved in several shoplifting offences to be aggregated where they are charged at the same time (s. 22A(4)). So, for example, where a person is charged with three counts of shoplifting, having allegedly taken £80 worth of goods from three separate shops (a total of £240), the procedure would not apply in that case as the aggregate sum exceeds the £200 threshold.

Low-value shoplifting will be tried summarily (as it must be unless the defendant elects); the maximum penalty is six months’ imprisonment or a fine.

An offence of shoplifting includes secondary offences such as aiding and abetting.

Section 22A(5) amends s. 1 of the Criminal Attempts Act 1981 to provide that it is an offence to attempt to commit low-value shoplifting.

Section 22A(6) provides that certain powers conferred by the Police and Criminal Evidence Act 1984 on the police and others in respect of indictable offences remain available in respect of low-value shoplifting, notwithstanding that it is reclassified as summary only. The powers concerned include a power of arrest exercisable by a person other than a constable (for example, a store detective), powers enabling police officers to enter and search premises and vehicles in various circumstances for the purposes of searching for evidence in connection with an investigation or arresting individuals suspected of committing offences, and powers enabling a magistrate to authorise such entry and search.

1.14.2.2 Dishonestly

If a person cannot be shown to have acted ‘dishonestly’, he/she is not guilty of theft. The decision as to whether or not a defendant was dishonest is a question of fact for the jury or magistrate(s) to decide. Whilst there is no statutory definition of the term ‘dishonestly’, the 1968 Act does deal with the issue by setting out a number of specific circumstances where the relevant person will not be treated as dishonest and one circumstance where a person may be dishonest.

The Theft Act 1968, s. 2 states:

  1. (1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

    1. (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

    2. (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

    3. (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

Keynote

In all three instances it is the person’s belief that is important.

Right in Law

  • X is owed £100 by Y. Y tells X that he will not give him the money so X, honestly believing that he has a right in law to do so, takes property belonging to Y (to the value of £100) as payment for the debt. It does not matter that there is no actual right in law for X to behave in this way; the honestly held belief by X that he does have a right in law means that he is not dishonest. The belief need not even be reasonable, only honestly held, and could be based on a ‘mistake’. This would also include the situation where the person acts on the basis of belief in the legal right of another. So if X, acting for the benefit of Y, took property from Z (wrongly but honestly believing that Y was entitled to it), X would not be dishonest.

Consent

  • Under s. 2(1)(b) the person appropriating the property must believe both elements, i.e. that the other person would have consented had he/she known of the appropriation and the circumstances of it. For example, a person is about to run out of time on a street parking meter and needs £5 to park for the next hour or risk incurring a fine. Believing that a work colleague would consent in this situation, the person takes £5 belonging to the colleague from a change jar on the colleague’s desk. If the person honestly believes the work colleague would consent to the taking and the circumstances of it, this would not be dishonest. If the person knew that the work colleague would not approve, this would be dishonest.

Lost

  • Under s. 2(1)(c), the belief has to be in relation to the likelihood of discovering the ‘owner’ by taking reasonable steps. The nature and value of the property, together with the attendant circumstances, will be relevant. The chances of finding the owner of a valuable, monogrammed engagement ring found after a theatre performance would be considerably greater than those of discovering the owner of a can of beer found outside a football ground. Again, it is the defendant’s honest belief at the time of the appropriation that is important here, not that the defendant went on to take reasonable steps to discover the person to whom the property belongs.

  • Trustees or personal representatives cannot rely on s. 2(1)(c). This is because a trustee or personal representative can never be personally entitled to the property in question (unless the trust or will states that is the case) as if the beneficiary cannot be found, the person entitled to the property in question (now effectively ‘ownerless goods’) is the Crown.

The Theft Act 1968, s. 2 states:

  1. (2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.

Keynote

If a person appropriates another’s property, leaving money or details of where he/she can be contacted to make restitution, this will not of itself negate dishonesty (Boggeln v Williams [1978] 1 WLR 873). The wording of s. 2(2) gives latitude to a court where the defendant was willing to pay for the property. The subsection says that such an appropriation may be dishonest, not that it will always be dishonest.

Example


X wants to buy a pint of milk and sees an unattended milk float displaying a sign, ‘Milk—50p a pint’. X waits for several minutes but nobody in charge of the milk float appears so X leaves 50p on the float and takes a pint of milk. The fact that the milk is for sale and X left payment would be convincing evidence to suggest that X is not dishonest.

The conclusion may be different if Y wants to own a painting that is on display in a museum. Y has made several approaches to buy the painting but has been told that the painting is not for sale. Y knows the painting is worth £10,000 and decides to take the painting from the museum, leaving a cheque for £10,000 in its place. Just because Y is willing to pay the market value for the painting does not mean to say that he is not dishonest.

1.14.2.3 Dishonesty: The Ruling in Ghosh

Where ‘dishonesty’ needs to be considered but s. 2 of the Theft Act 1968 is of no assistance (s. 2 will not cater for every circumstance), the magistrates/jury should consider ‘dishonesty’ in light of the ruling in R v Ghosh [1982] QB 1053 and must ask two questions:

  • Was what was done dishonest according to the ordinary standards of reasonable and honest people? If the answer to that question is ‘no’ then the defendant is not guilty of theft but if it is ‘yes’ then the second question is asked.

  • Did the defendant realise that what was done was dishonest by those standards?

This test against the ordinary standards of reasonable and honest people means that defendants who have a purely subjective belief that they are doing what is morally right although they know it is legally wrong (e.g. an anti-vivisectionist taking animals from a laboratory) can still be ‘dishonest’. Taking the animals from the laboratory is dishonest according to the ordinary standards of reasonable and honest people and the anti-vivisectionist knows that to be the case.

In R v Hayes [2015] EWCA Crim 1944, the defendant was convicted of conspiracy to defraud in relation to the manipulation of the Japanese Yen London Interbank Offered Rate (LIBOR). The defendant asserted that he had not acted dishonestly and that what he had done was common practice and regarded as legitimate in the banking industry, and that he had been encouraged by his managers. He appealed by submitting, amongst other things, that the judge had erred in ruling that evidence relating to banking ethos and practice in connection with LIBOR setting was inadmissible in relation to the Ghosh test. The appeal was dismissed as a person’s dishonesty is to be judged against the ordinary standards of reasonable and honest people—not by the standards for a market, a group of traders of colleagues in the same industry.

1.14.2.4 Appropriates

The Theft Act 1968, s. 3 states:

Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.

Keynote

The owner of property has many rights in relation to it—the right to sell it, to give it away or to destroy it are just some examples. ‘Appropriation’ does not envisage that a person assumes all of those rights, just one of them would suffice for ‘appropriation’ to occur.

While damaging or destroying property is clearly an act of ‘appropriation’ (R v Graham [1997] 1 Cr App R 302) it does not follow that an act of destruction of property is also thereby automatically theft of that property. Dishonestly causing the destruction of property can itself amount to an offence of theft (R v Kohn (1979) 69 Cr App R 395) but this does not make theft an appropriate charge where D merely smashes V’s car window by throwing a brick through it. Criminal damage would be the appropriate charge on such facts as there is clearly no ‘dishonesty’ present in such an act.

It is important to note that there can be an ‘appropriation’ without any criminal liability and appropriation itself does not amount to an offence of theft; it simply describes one of the elements of the criminal conduct that must exist before a charge of theft can be made out. An appropriation requires no mental state on the part of the appropriator. It is an objective act.

Where an appropriation takes place and is accompanied by the other elements of the offence, there will be a theft.

Appropriation under s. 3(1) envisages a physical act (Biggs v R (2003) 12 December, unreported).

When and where the particular act amounting to an appropriation took place is of importance when bringing a charge of theft (and in other offences such as robbery and aggravated burglary).

The decision of the House of Lords in R v Gomez [1993] AC 442 significantly developed the meaning of ‘appropriation’. Following an earlier case (Lawrence v Metropolitan Police Commissioner [1972] AC 626), Lord Keith disagreed with the argument (made in Gomez) that an act expressly or impliedly authorised by the owner of the property in question can never amount to an ‘appropriation’ and pointed out that the decision in Lawrence was a direct contradiction of that proposition. The House of Lords upheld the convictions for theft in Gomez and accepted that there are occasions where property can be ‘appropriated’ for the purposes of the Theft Act 1968, even though the owner has given his/her consent or authority.

A number of issues come from this decision:

  • Taking or depriving. It is not necessary that the property be ‘taken’ in order for there to be an appropriation, neither need the owner be ‘deprived’ of the property. Similarly, there is no need for the defendant to ‘gain’ anything by an appropriation.

  • Consent. It is irrelevant to the issue of appropriation whether or not the owner consented to that appropriation. This is well illustrated in Lawrence, the decision followed by the House of Lords in Gomez. In Lawrence a tourist gave his wallet full of unfamiliar English currency to a taxi driver for the latter to remove the correct fare. The driver in fact helped himself to (‘appropriated’) far more than the amount owed. It was held that the fact that the wallet and its contents were handed over freely (with consent) by the owner did not prevent the taxi driver’s actions from amounting to an ‘appropriation’ of it.

  • Interfering with goods. Simply swapping the price labels on items displayed for sale in a shop will amount to an ‘appropriation’. This is because to do so, irrespective of any further intention, involves an assumption of one of the owner’s rights in relation to the property (the right to put a price on property). If that appropriation were accompanied by the other elements of the offence, then theft is committed.

  • More than one appropriation. There may be an appropriation of the same property on more than one occasion. However, once property has been stolen (as opposed to merely appropriated), that same property cannot be stolen again by the same thief (R v Atakpu [1994] QB 69). Appropriation can also be a continuing act, that is, it can include the whole episode of entering and ransacking a house and the subsequent removal of property (R v Hale (1979) 68 Cr App R 415).

In R v Hinks [2001] 2 AC 24, the House of Lords was asked to rule on whether a person could ‘appropriate’ property belonging to another where the other person made her an absolute gift of property, retaining no proprietary interest in the property or any right to resume or recover it. In that case the defendant had befriended a middle-aged man of limited intelligence who had given her £60,000 over a period of time. The defendant was charged with five counts of theft and, after conviction, eventually appealed to the House of Lords. Their lordships held that:

  • in a prosecution for theft it was unnecessary to prove that the taking was without the owner’s consent (as in Lawrence);

  • it was immaterial whether the act of appropriation was done with the owner’s consent or authority (as in Gomez); and

  • Gomez therefore gave effect to s. 3(1) by treating ‘appropriation’ as a neutral word covering ‘any assumption by a person of the rights of an owner’.

The essence of the decision by the House of Lords in Hinks is that even though a person obtains good title to property under civil law (the gift) they can still be convicted of theft as the circumstances of the gift-giving are dishonest.

If a person, having come by property, innocently or not, without stealing it, later assumes any rights to it by keeping it or treating it as his/her own, then he/she ‘appropriates’ that property (s. 3(1)).

Keynote

A later assumption of the rights of an owner amounts to ‘appropriation’ and could lead to an offence of theft.

Example


X is shopping in a large department store and has placed several items in his shopping basket. Thinking about other things, X absent-mindedly walks out of the store without paying for the goods. Once outside the store X realises what he has done but as the store alarm has not activated and nobody has noticed X leaving the store without paying, X decides to keep the goods and walks away from the store. X initially came by the goods innocently but his later assumption of the rights of an owner means he has now ‘appropriated’ the goods and in the circumstances commits theft.

An exception to these circumstances is provided by the Theft Act 1968, s. 3 which states:

  1. (2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.

Keynote

If a person buys a car in good faith and gives value for it (i.e. a reasonable price) but then discovers it has been stolen, a refusal to return it to the original owner would not, without more, attract liability for theft. Without s. 3(2) the retention of the vehicle would be caught by s. 3(1). This narrow exemption does not mean however that the innocent purchaser gets good title to the car (National Employers’ Mutual Insurance Association Ltd v Jones [1990] 1 AC 24), nor would it provide a defence if the stolen goods are a gift and the ‘donee’ (recipient) subsequently discovers that they had been stolen (the ‘donee’ will not have given ‘value’ for the property).

1.14.2.5 Property

The Theft Act 1968, s. 4 states:

  1. (1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.

  2. (2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—

    1. (a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or

    2. (b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or

    3. (c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.

      For purposes of this subsection ‘land’ does not include incorporeal hereditaments; ‘tenancy’ means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and ‘let’ shall be construed accordingly.

  3. (3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks unless he does it for reward or for sale or other commercial purpose. For purposes of this subsection ‘mushroom’ includes any fungus, and ‘plant’ includes any shrub or tree.

  4. (4) 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, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.

Keynote

Money

Coins and banknotes are property (R v Davis (1989) 88 Cr App R 347). ‘Money’ does not include cheques or credit balances held in banks and building societies (but see below).

Personal Property

Personal property includes tangible personal property which might be described as ‘things in possession’. The TV in your house, the settee you sit on etc. are all examples of ‘personal’ property.

Things in Action and Other Intangible Property

Under s. 4(1) ‘things in action’ would include patents, company shares and trademarks and other things which can only be enforced by legal action as opposed to physical possession. Other intangible property would include software programs and perhaps credits accumulated on ‘smart cards’. Confidential information, such as the contents of an examination paper, is not intangible property per se (Oxford v Moss (1979) 68 Cr App R 183). However, if those contents were written on a piece of paper, the paper itself would be ‘real’ property. It has been accepted by the Court of Appeal that contractual rights obtained by buying a ticket for the London Underground may amount to a ‘thing in action’ (R v Marshall [1998] 2 Cr App R 282).

Cheques and Credit Balances

Cheques will be property as they are pieces of paper (‘personal’ property albeit of very little value). The contents of a bank or building society account, however, are also a ‘thing in action’ that can be stolen provided the account is in credit or within the limits of an agreed overdraft facility (R v Kohn (1979) 69 Cr App R 395). Reducing the credit balance in one account and transferring a like sum into your own account amounts to an ‘appropriation’ of property within the meaning of s. 1. This principle (set out in Kohn) was reaffirmed in R v Williams (Roy) [2001] 1 Cr App R 23 by the Court of Appeal.

Land

Under s. 4(2) you cannot generally steal land. However, there are three exceptions to this general rule:

  1. (1) Trustees or personal representatives or someone in a position of trust to dispose of land belonging to another, can be guilty of stealing it if, in such circumstances, they dishonestly dispose of it.

Example


Two company employees are asked by the company directors to sell land belonging to the company. The value of the land is £10,000 an acre. The company employees sell the land to each other for £1,000 an acre. The company employees are in a position of trust and have ‘breached the confidence reposed in them’ and commit theft of the land.

  1. (2) Persons not in possession of the land may commit theft in a variety of ways. This may be accomplished by severing fixtures, plants, topsoil, etc. from the land or by appropriating such property after it has been severed. If X decides to take an established and cultivated rose bush from the garden of his neighbour by ripping it out of the ground and then planting it in his own garden, this would be theft as the rose bush has been severed from the land (see below for wild plants). This would not include a person who dishonestly moves a boundary fence so as to appropriate some part of a neighbouring property as the land has not been ‘severed’.

  2. (3) Tenants can steal land but only fixtures and structures let to be used with the land. Examples of ‘fixtures’ would be a fireplace or the kitchen sink; a structure might be a greenhouse or a garden shed which is fixed to the land. A tenant cannot steal land such as topsoil or a rosebush growing in the garden of the rented premises as these things are not ‘fixtures or structures’.

Things Growing Wild

Things growing wild on any land are ‘property’ and could be stolen by a person not in possession of the land if he/she severed and appropriated them. However, s. 4(3) of the Act tells us that a person who picks mushrooms, flowers, fruit and foliage growing wild on any land will not commit theft by so doing, unless the picking is done for reward, sale or other commercial purpose. Except in the case of a mushroom, if the whole plant is removed this is theft as it is not ‘picking’. Likewise, sawing through the trunk of a tree growing wild is not picking and would be theft. It is arguable that, if the person does not have such a purpose at the time of the picking, any later intention to sell the fruit, etc. may not bring it within the provisions of s. 4(3). If the mushroom, flower etc. is cultivated it will be theft to pick it wherever it is growing.

Wild Creatures

Section 4(4) states all wild creatures are ‘property’ whether they are tamed (your dog or cat) or untamed but ordinarily kept in captivity (a lion in a zoo). Wild creatures that are not tamed or ordinarily kept in captivity are not classed as property unless they have been reduced into possession or in the process of being so reduced. For example, X shoots a rabbit on land belonging to Y (with Y’s permission to be there and shoot). Z takes the rabbit from X—Z commits theft. If the rabbit is lost or abandoned after it has been reduced into possession or killed then it cannot be ‘stolen’.

1.14.2.6 What is not Property?

An area of criminal activity causing concern (and cost) is that of so-called ‘identity theft’. This is a misleading description as adopting another person’s characteristics and using his/her administrative data (such as national insurance number) is not theft of the information as this ‘confidential information’ is not ‘property’ for the purposes of the Theft Act 1968.

Human bodies (dead or alive) are not property (‘there is no property in a corpse’ (Doodeward v Spence (1908) 6 CLR 406)). However, a body or body parts are capable of being stolen if they have been subject to a special application of human skill (an Egyptian mummy would be the property of the museum it was kept in). This principle was upheld by the Court of Appeal in R v Kelly [1999] QB 621, after the conviction of two people involved in the theft of body parts from the Royal College of Surgeons. The court upheld the convictions for theft on the grounds that the process of alteration (amputation, dissection and preservation) which the body parts had undergone did make them ‘property’ for the purposes of the 1968 Act.

Fluids taken from a living body are property so a motorist has been convicted of stealing a specimen of his own urine provided by him for analysis (R v Welsh [1971] RTR 478). The same rule would clearly apply to a blood sample.

Electricity is not property and is the subject of a specific offence.

1.14.2.7 Belonging to Another

The Theft Act 1968, s. 5 states:

  1. (1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).

  2. (2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.

Keynote

Property can be ‘stolen’ from any person who has possession, control or a proprietary right or interest in that property. In one case where the defendant recovered his own recently repaired car from a street outside the garage where the repairs had taken place, he was convicted of stealing the car which at the time ‘belonged to’ the garage proprietor who had possession of it (R v Turner (No. 2) [1971] 1 WLR 901). In determining whether or not a person had ‘possession’ of property for the purposes of s. 5(1), the period of possession can be finite (i.e. for a given number of hours, days, etc.) or infinite (R v Kelly [1999] QB 621).

It is not necessary to show who does own the property, only that it ‘belongs to’ someone other than the defendant. An example of how this principle operates can be seen in a case where the two defendants went diving in a lake on a golf course, recovering sacks of ‘lost’ balls which it was believed they were going to sell. This activity was carried out without the permission of the golf club who owned the course. Although the defendants argued that the balls had been abandoned by their owners, the Crown had shown that they were ‘property belonging to another’ (the golf club) and therefore the convictions were safe (R v Rostron; R v Collinson [2003] EWCA Crim 2206).

Where money is given to charity collectors it becomes the property of the relevant charitable trustees at the moment it goes into the collecting tin (R v Dyke [2001] EWCA Crim 2184). If s. 5(2) did not exist, those charitable trustees could take the donation to the charity and do what they wished with it, including placing the charitable funds in their own bank account. Charitable trusts are enforceable by the Attorney-General, and an appropriation of the trust property by a charitable trustee will amount to theft from the Attorney-General.

When a cheque is written it creates a ‘thing in action’. That thing in action belongs only to the payee (the ‘payee’ is the person to whom the cheque is made payable). Therefore a payee of a cheque cannot ‘steal’ the thing in action which it creates (R v Davis (1989) 88 Cr App R 347).

You must show that the property belonged to another at the time of the appropriation. Where a defendant decides not to pay for goods after property passes to him/her (e.g. people refusing to pay for meals after they have eaten or deciding to drive off having filled their car with petrol), the proper charge is found under the Fraud Act 2006 (see chapter 1.15) or by charging with the offence of making off without payment. If ownership of the property had passed to the defendant before he/she appropriated it (e.g. by virtue of the Sale of Goods Act 1979; Edwards v Ddin [1976] 1 WLR 942) then this element of theft would not be made out and an alternative charge should be considered.

1.14.2.8 Obligations Regarding Another’s Property

The Theft Act 1968, s. 5 states:

  1. (3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.

Keynote

‘Obligation’ means a legal obligation, not a moral one (R v Hall [1973] QB 126). Whether or not such an obligation exists is a matter of law for a trial judge to decide (R v Dubar [1994] 1 WLR 1484).

Instances under s. 5(3) most commonly involve receiving money from others to retain and use in a certain way (e.g. travel agents taking deposits; solicitors holding funds for mortgagees; or pension fund managers collecting contributions (R v Clowes (No. 2) [1994] 2 All ER 316)). The Court of Appeal has held that one effect of s. 5(3) is that property can be regarded as belonging to another even where it does not ‘belong’ to that person on a strict interpretation of civil law (R v Klineberg [1999] 1 Cr App R 427). In that case the defendants collected money from customers in their timeshare business and told the customers that their deposits would be placed with an independent trustee. Instead, the defendants paid the sums into their company account, thereby breaching the ‘obligation’ under s. 5(3) to deal with the money in a particular way.

Section 5(3) would also include, say, the owner of a shopping centre who invites shoppers to throw coins into a fountain which will be donated to charity; if the owner did not deal with those coins in the way intended (e.g. keeping the money), the provisions of s. 5(3) may well apply.

1.14.2.9 Obligation to Restore Another’s Property

The Theft Act 1968, s. 5 states:

  1. (4) Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.

Keynote

Where extra money is mistakenly credited into an employee’s bank account, the employee will be liable for stealing the extra money if he/she dishonestly keeps it (Attorney-General’s Reference (No. 1 of 1983) [1985] QB 182 where a police officer’s account was credited with money representing overtime which she had not actually worked).

Section 5(4) only applies where someone other than the defendant has made a mistake. Such a mistake can be a mistake as to a material fact; whether or not a mistake as to law would be covered is unclear.

The obligation to make restoration is a legal one and an unenforceable or moral obligation will not be covered by s. 5(4). For example, in R v Gilks [1972] 1 WLR 1341 a relief manager at a betting shop mistakenly paid out winnings against the wrong horse. The Court of Appeal held that the defendant did not owe a legal obligation to return the money because the bookmaker could not have sued on a gaming transaction and therefore s. 5(4) did not apply.

1.14.2.10 Intention of Permanently Depriving

If you cannot prove an intention permanently to deprive you cannot prove theft (R v Warner (1970) 55 Cr App R 93).

If there is such an intention at the time of the appropriation, giving the property back later will not alter the fact and the charge will be made out (R v McHugh (1993) 97 Cr App R 335).

In certain circumstances s. 6 may help in determining the presence or absence of such an intention.

The Theft Act 1968, s. 6 states:

  1. (1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.

Keynote

The key feature of s. 6(1) is the intention to treat ‘the thing’ as one’s own to dispose of regardless of the other’s rights. An example of such a case would be where property is ‘held to ransom’ (R v Coffey [1987] Crim LR 498). If X kidnaps a dog belonging to Y and tells Y that the dog will be returned in exchange for £500, the conclusion to be drawn is that if the ransom is not paid the dog will not be returned, i.e. there is an intention to permanently deprive.

The borrowing or lending of another’s property is specifically caught within s. 6(1). If a person takes property from his/her employer (e.g. carpet tiles) and uses it in a way which makes restoration unlikely or impossible (e.g. by laying them in his/her living room), s. 6(1) will apply (R v Velumyl [1989] Crim LR 299).

If X is given a football season ticket by Y to use for one match but then X holds on to the season ticket for several matches knowing that this was not part of the arrangement and against the wishes of Y, s. 6(1) would help prove the required intention to permanently deprive because the circumstances of the borrowing make it equivalent to an outright taking.

In a case involving robbery, the defendants took the victim’s personal stereo headphones from him and broke them in two, rendering them useless before returning them to him. The Administrative Court held that a person who took something and dealt with it for the purpose of rendering it useless in this way demonstrated the intention of treating that article as his/her own to dispose of. The court did not accept the argument that the property had to be totally exhausted before s. 6 applied and held that the magistrates had been wrong to accept the submission of no case to answer on this point (DPP v J [2002] EWHC 291 (Admin)). Therefore, the deliberate breaking of an item of property will amount to the ‘intention to permanently deprive’; however, unless this action is accompanied by the other theft elements it will be criminal damage. Note that in this case the offence dealt with was robbery so that the other elements of theft were plainly satisfied when the defendant initially took the property.

The Theft Act 1968, s. 6 states:

  1. (2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority) amounts to treating the property as his own to dispose of regardless of the other’s rights.

Keynote

Section 6(2) deals with occasions such as pawning another’s property. In pawning the property the defendant parts with the property on the basis that he/she might be able to recover it (there could never be certainty of recovery). So, there is a possibility that the defendant may not be able to do so, i.e. that he/she will be unable to meet the conditions under which he/she parted with another person’s property. In such a case, s. 6(2) would help in proving an intention permanently to deprive.

1.14.3 Robbery

Offence Robbery—Theft Act 1968, s. 8

  • Triable on indictment

  • Life imprisonment

The Theft Act 1968, s. 8 states:

  1. (1) 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.

Keynote

The Theft Element of the Offence

For there to be a robbery, there must be a theft; so if there is no theft, then there can be no robbery. The word ‘steal’ in the offence relates to the offence under s. 1 of the Theft Act 1968 and, therefore, if any element of theft cannot be proved the offence of robbery will not be made out. For example, in R v Robinson [1977] Crim LR 173, D, who was owed £7 by P’s wife, approached P, brandishing a knife. A fight followed, during which P dropped a £5 note. D picked it up and demanded the remaining £2 owed to him. Allowing D’s appeal against a conviction for robbery, the Court of Appeal held that the prosecution had to prove that D was guilty of theft, and that he would not be (under the Theft Act 1968, s. 2(1)(a)) if he believed that he had a right in law to deprive P of the money, even though he knew that he was not entitled to use the knife to get it, i.e. there was no dishonesty (but see para. 1.14.4 for blackmail).

The Robbery Time Frame

Section 8(1) requires that the force must be used or the threat made ‘immediately before or at the time’ of the theft. There is no guidance as to what ‘immediately before’ means. Clearly, if the force used or threatened is after the offence of theft has taken place, there will be no robbery; however theft can be a continuing offence. This was decided in R v Hale (1979) 68 Cr App Rep 415, where the Court of Appeal stated that appropriation is a continuing act and whether it has finished or not is a matter for the jury to decide. From the robbery perspective, Hale decides that where D had assumed ownership of goods in a house, the ‘time’ of stealing is a continuing process. It does not end as soon as the property is picked up by the defendant and can be a continuing act so long as he/she is in the course of removing it from the premises. So, if D uses or threatens force to get away with the property (while still in the house for example), a robbery is committed. This would not be the case if the defendant used force outside the house as there must come a time when the appropriation ends. The issue may be resolved by asking the question, ‘Was D still on the job?’ (R v Atakpu [1994] QB 69).

In Order to Do So

The use or threat of force must be ‘in order’ to carry out the theft. Force used in any other context means the offence is not committed, for example:

  • Two men are fighting outside a pub. One man punches the other in the face and the force of the blow knocks the man out. As the injured man falls to the floor, his wallet drops out of his jacket pocket and onto the pavement. His opponent decides that he will steal the wallet. No robbery is committed in these circumstances because the force is used for a purpose other than to steal.

The question to ask in such circumstances is ‘Why has the force been used and/or threatened?’ If the answer is anything other than ‘To enable the defendant to commit theft’ then there is no offence of robbery.

Force

A small amount of force used in order to accomplish a theft may change that theft into a robbery. For example in R v Dawson (1977) 64 Cr App R 170, the defendant and two others surrounded their victim. One of the attackers ‘nudged’ the victim and while he was unbalanced another stole his wallet. In Dawson, the court declined to define ‘force’ any further than to say that juries would understand it readily enough. In line with general principles of actus reus (criminal conduct), the force used by the defendant must be used voluntarily. Therefore, the accidental use of force such as when a pickpocket, in the process of stealing a wallet from his victim on a train, is pushed into his victim by the train jolting on the railway line would not be a robbery.

On Any Person

The force used to accomplish a robbery need not be used against the owner or possessor of the property. For example, a gang of armed criminals use force against a security guard in order to overpower him and steal cash from the bank he is standing outside and guarding.

Use of Force on Property

Force does not actually have to be used ‘on’ the person, i.e. on the actual body of the victim. It may be used indirectly, for example on something that the victim is carrying and thereby transferring the force to the person. This was the case in R v Clouden [1987] Crim LR 65, where the Court of Appeal dismissed an appeal against a conviction for robbery when the defendant had wrenched the victim’s shopping basket from her hand and ran off with it. However, in P v DPP [2012] EWHC 1657 (Admin), it was held that snatching a cigarette from the hand of the victim was incapable of amounting to robbery. Mitting J stated ‘It cannot be said that the minimum use of force required to remove a cigarette from between the fingers suffices to amount to the use of force against that person’. In this case there was no evidence of direct physical contact between the victim and the thief.

The Fear of Force

Where only the threat of force is involved the intention must be to put a person in fear for him/herself; an intention to put someone in fear for another is not enough (R v Taylor [1996] 10 Archbold News 2). This may seem at odds with the approach to the actual use of force in the offence of robbery (in that force can be used against a third party who is unconnected with the property subject to the theft).

Example


A man enters a betting shop and approaches the cashier. Without saying a word he passes a note to the cashier that simply says, ‘Look to your left’. The cashier looks and sees the man’s accomplice standing several feet away and pointing a knife at the back of one of the shop customers. The customer is oblivious to the actions of the man’s accomplice. The man passes a second note to the cashier that says, ‘Give me the money in the till or else he gets it!’ The cashier, fearing for the customer, hands over the contents of the betting shop till. This is not robbery as the cashier cannot fear force for the betting shop customer. However, whilst there is no robbery there would be an offence of blackmail (Theft Act 1968, s. 21).

Let us say that instead of handing the contents of the betting shop till over to the offender, the cashier shakes her head and refuses to hand over any money. At this point, the man signals to his accomplice who shouts at the customer 'Look here!' The customer turns around and can clearly see the knife in the hand of the accomplice pointing towards him and fears force for himself. The man speaking to the cashier repeats his demand and the cashier hands over the contents of the betting shop till. This is a robbery as the customer fears force for himself.

In a final variation of this example, let us once again say that instead of handing the contents of the betting shop till over to the offender after the note demanding money is passed to her, the cashier shakes her head and refuses to hand over any money. At this point, the man signals to his accomplice who pulls the customer’s head backwards and drags the knife across the side of the customer’s throat causing a small cut. The customer screams in terror and at this point the cashier concedes to the man’s demand and hands over the till contents. At this point in time a robbery is committed as force is actually being used (albeit on a third party).

General Points

Any threats to use force at some time in the future (even by a matter of minutes) would constitute an offence of blackmail. Threats to use force at some place other than the location of the offence fall into the same category. This effectively excludes threats made via the telephone in all but the most improbable of situations.

1.14.4 Blackmail

Offence Blackmail—Theft Act 1968, s. 21

  • Triable on indictment

  • 14 years’ imprisonment

The Theft Act 1968, s. 21 states:

  1. (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—

    1. (a) that he has reasonable grounds for making the demand; and

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

  2. (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.

Keynote

The phrase ‘with a view to’ has been held (albeit under a different criminal statute) by the Court of Appeal to be less than ‘with intent to’ (R v Zaman [2002] EWCA Crim 1862). In Zaman, the court accepted that ‘with a view to’ simply that the defendant had something in his contemplation as something that realistically might occur, not that he necessarily intended or even wanted it to happen. Clearly this is a very different test from ‘intent’. In the above offence then, it appears that the state of mind needed to prove the first element is that the defendant contemplated some gain for himself or for another as being realistically likely to flow from his actions. The alternative is an ‘intent’ to cause loss.

There is no requirement for dishonesty or theft and the offence is aimed at the making of the demands rather than the consequences of them.

1.14.4.1 Meaning of Gain and Loss

Section 34 of the 1968 Act states:

  1. (2) For the purposes of this Act—

    1. (a) ‘gain’ and ‘loss’ are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and—

      1. (i) ‘gain’ includes a gain by keeping what one has, as well as a gain by getting what one has not; and

      2. (ii) ‘loss’ includes a loss by not getting what one might get, as well as a loss by parting with what one has; …

Keynote

Keeping what you already have can amount to a ‘gain’. Similarly, not getting something that you might expect to get can be a ‘loss’.

For example, a person makes unwarranted demands with menaces with a view to getting a sports fixture cancelled and avoiding losing money that he/she has bet on the outcome of that fixture. Here the intention of keeping what the defendant already had (the money at risk on the bet) amounts to ‘gain’ as defined under s. 34(2). Similarly, the intention of preventing others getting what they might have got (their winnings or the club’s earnings) could amount to a ‘loss’.

A blackmailer need not be seeking any kind of material profit. In R v Bevans (1988) 87 Cr App R 64, D used menaces in order to obtain a pain-killing injection from a doctor; this was held to be blackmail as the drug involved was a form of property.

Note that a demand for sexual favours would not constitute an offence of blackmail as those sexual favours are not ‘money or other property’.

1.14.4.2 Criminal Conduct

The offence of blackmail is complete when the demand with menaces is made. As a result it is extremely difficult, if not impossible, to have an offence of attempted blackmail as the defendant will either be preparing to make the demand or will have made it. It does not matter whether the demands bring about the desired consequences or not. If a demand is made by letter, the act of making it is complete when the letter is posted. The letter does not have to be received (Treacy v DPP [1971] AC 537).

The Court of Appeal has held that words or conduct which would not intimidate or influence anyone to respond to the demand would not be ‘menaces’. As such, the term requires threats and conduct of such a nature and extent that a person of normal stability and courage might be influenced or made apprehensive so as to give in to the demands (R v Clear [1968] 1 QB 670).

Menaces will therefore include threats but these must be significant to the victim. If a threat bears a particular significance for a victim (such as being locked in the boot of a car to someone who is claustrophobic) that will be enough, provided the defendant was aware of that fact. If a victim is particularly timid and the defendant knows it, that timidity may be taken into account when assessing whether or not the defendant’s conduct was ‘menacing’ (R v Garwood [1987] 1 WLR 319).

In the converse situation, where an apparently serious threat fails to intimidate the victim at all, the offence is still committed. For example, if X approaches Y and threatens to break Y’s legs unless Y gives X £50 but Y is unconcerned by the threat, this would still constitute blackmail as a threat to break someone’s legs would influence a person of normal stability and courage.

1.14.4.3 Unwarranted?

If a defendant raises the issue that his/her demand was reasonable and proper, you will have to prove that he/she did not genuinely believe:

  • that he/she had reasonable grounds for making the demand; and

  • that the use of the particular menaces employed was not a proper means of reinforcing it.

The defendant’s belief will be subjective and therefore could be entirely unreasonable. However, if the threatened action would itself be unlawful (such as a threat to rape the victim) then it is unlikely that the courts would accept any claim by a defendant that he/she believed such a demand to be ‘proper’ (R v Harvey (1981) 72 Cr App R 139).

1.14.5 Burglary

There are two forms of burglary—s. 9(1)(a) and s. 9(1)(b).

1.14.5.1 Section 9(1)(a)

Offence Burglary—Theft Act 1968, s. 9

  • Triable on indictment if ‘ulterior offence’ is so triable, or if committed in dwelling and violence used; otherwise triable either way

  • 14 years’ imprisonment if building/part of building is dwelling

  • Otherwise 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 9 states:

  1. (1) A person is guilty of burglary if—

    1. (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or …

  2. (2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm and of doing unlawful damage to the building or anything therein.

Keynote

Enters

The Theft Act 1968 does not define the term ‘entry’ and so we are left to resolve the meaning of this term by reference to case law and the decisions of the courts. The common law rule was that the insertion of any part of the body, however small, was sufficient to be considered an ‘entry’. So where D pushed in a window pane and the forepart of his finger was observed in the building that was enough (R v Davis (1823) Russ & Ry 499). This approach was narrowed considerably in R v Collins [1973] QB 100, where it was said that entry needed to be ‘effective and substantial’. The ruling in Collins was rejected by the Court of Appeal in R v Brown [1985] Crim LR 212, where it was stated that the ‘substantial’ element was surplus to requirements and that entry need only be ‘effective’. Whether an entry was ‘effective’ or not was for the jury to decide. So the decision of the court in Brown appears to be the current accepted approach to defining the term; entry must therefore be ‘effective’.

An ‘effective’ entry does not mean that the defendant has to enter a building or part of a building to such a degree that the ulterior offence, which he/she is entering with the intention to commit (the theft, grievous bodily harm or criminal damage), can be committed (R v Ryan [1996] Crim LR 320). Nor does it mean that the defendant must get his/her whole body into the building. In Brown, the defendant had his feet on the ground outside the building with the upper half inside the building as he searched for goods to steal; this was held to be an entry. In Ryan, the defendant, who had become trapped by his neck with only his head and right arm inside the window, was held to have ‘entered’ the building. In Brown, the Court of Appeal stated that it would be astounding if a smash-and-grab raider, who inserted his hand through a shop window to grab goods, was not considered to have ‘entered’ the building.

At common law, the insertion of an instrument would constitute entry as long as the instrument was inserted to enable the ulterior offence to take place, e.g. a hook inserted into premises to steal property or the muzzle of a gun pushed through a letterbox with a view to cause grievous bodily harm. Insertion of an instrument merely to facilitate entry, e.g. using a coat hanger to open a window lock, would not be entry. Although there is no recent authority on the issue, it is likely that this line of reasoning in relation to the use of instruments in burglary is still acceptable.

Entry must be deliberate and not accidental.

Ultimately, whether the defendant has entered a building or not will be a question of fact for the jury or magistrate(s).

Trespasser

To be guilty of the offence of burglary the defendant must know or be reckless to the fact that they are entering as a trespasser (i.e. they must know they are entering without a right by law or with express or implied permission to do so) or be reckless as to that fact. Sometimes a defendant may have a general permission to enter a building or part of a building for a legitimate purpose; however, the true intention of the defendant when entering is not for that legitimate purpose but in order to steal or commit grievous bodily harm or to cause criminal damage. As these intentions invariably form no part of the permission to enter the building or part of it, any entry in such circumstances means that the defendant becomes a trespasser the moment he/she enters the building or part of the building. In such circumstances the exceeding of the granted permission places the defendant in a position of being a trespasser from the outset.

Example


X has a key to Y’s home and has permission, from Y, to enter Y’s home at any time and sleep in one of the bedrooms. Intending to steal from Y’s home, X uses the key to get into Y’s house. This means that X has committed a burglary under s. 9(1)(a) at Y’s house. Y did not give X the keys to the house so that he could steal.

This example is very similar to the circumstances in R v Jones and Smith [1976] 1 WLR 672 where the defendant was convicted of burglary when he took two televisions from his father’s home. He had a key to the premises and was free to come and go as he liked but when he entered his father’s house (using the key) accompanied by a friend at 3 am and stole the television sets, he committed burglary as it was his intention to steal as such an intent voids the general permission to enter.

1.14.5.2 Building

The Theft Act 1968, s. 9 states:

  1. (4) References in subsections (1) and (2) above to a building…which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

Keynote

Building

A building is generally considered to be a structure of a permanent nature (Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167), although a substantial portable structure with most of the attributes of a building can be a ‘building’ for the purposes of burglary. For example, in B & S v Leathley [1979] Crim LR 314, a portable container measuring 25ft by 7ft by 7ft and weighing three tons, which had occupied the same position for three years, was connected to mains electricity, and which was due to remain in the same position for the foreseeable future, was considered to be a building for the purposes of burglary. An unfinished house can be a building for the purposes of burglary (R v Manning (1871) LR 1 CCR 338), although at what precise point a pile of building materials becomes an ‘unfinished house’ and therefore a building or part of a building would be a question of fact for the jury to decide. Tents and marquees are considered to fall outside the term, even if the tent is someone’s home (the Criminal Law Revision Committee intended tents to be outside the protection of burglary).

The effect of s. 9(4) is to include inhabited vehicles and vessels (such as house boats or motor homes) within the term. A canal boat that is not inhabited is not a building as whilst it may be capable of habitation, it is not being lived in.

Part of a Building

People may commit burglary when, although they are in one part of a building with legitimate access, they enter another part of it as a trespasser.

  • A tenant of a block of flats has a key that provides access to a communal foyer of the block of flats. He uses the key to enter the foyer (entering a building and plainly not a trespasser at this stage). Instead of entering his own flat he forces entry to a neighbour’s flat by breaking down the neighbour’s door that can be accessed via the communal foyer (moving from one part of a building to another in the process and certainly a trespasser at this stage).

The Court of Appeal decided that it is for the jury to decide whether an area physically marked out is sufficiently segregated to amount to ‘part of a building’. In R v Walkington [1979] 1 WLR 1169, the defendant walked behind a moveable sales counter in a shop with the intention to steal and was found guilty of burglary as this was held to be ‘part of a building’. A ‘No Entry’ sign or a rope could mark off one part of a building from another.

1.14.5.3 Intentions at the Time of Entry

The intentions at the time of entry (not before or after) must be as follows:

  • Stealing. This means an intention to commit theft under s. 1 (and ‘thief’ and ‘steal’ will be construed accordingly). It will not include abstracting electricity because electricity is not ‘property’ for the purposes of theft (Low v Blease [1975] Crim LR 513), neither will it include taking a conveyance (no intention to permanently deprive). The property which the defendant intends to steal must be in a building or part of a building.

  • Inflicting grievous bodily harm. In proving an intention to commit grievous bodily harm under s. 9(1)(a), it is not necessary to prove that a wounding/grievous bodily harm offence was actually committed (Metropolitan Police Commissioner v Wilson [1984] AC 242). The offence in question in respect of a burglary under s. 9(1)(a) is of grievous bodily harm contrary to s. 18 of the Offences Against the Person Act 1861.

  • Causing unlawful damage. This includes damage, not only to the building but to anything in it (see chapter 1.16).

1.14.5.4 Conditional Intent

Provided the required intention can be proved, it is immaterial whether or not there is anything ‘worth stealing’ within the building (R v Walkington [1979] 1 WLR 1169). The same will be true if the person whom the defendant intends to cause serious harm is not in the building or part of the building at the time (see also para. 1.3.4).

1.14.5.5 Section 9(1)(b)

Offence Burglary—Theft Act 1968, s. 9

  • Triable on indictment if ‘ulterior offence’ is so triable, or if committed in dwelling and violence used; otherwise triable either way

  • 14 years’ imprisonment if building/part of building is a dwelling

  • Otherwise 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 9 states:

  1. (1) A person is guilty of burglary if—

    1. (b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

Keynote

This type of burglary involves a defendant’s behaviour after entering a building or part of a building as a trespasser.

The defendant must have entered the building or part of a building as a trespasser; it is not enough that the defendant subsequently became a trespasser in that part of the building by exceeding a condition of entry (e.g. hiding in the public area of a shop during open hours until the shop closes). However, where a person has entered a particular building (such as a shop) lawfully and without trespassing, if he/she later moves to another part of the building as a trespasser, this element of the offence will be made out.

Example


D enters a public house near closing time with a friend who buys him a drink from the bar. D’s entry onto that part of the premises has been authorised by the implied licence extended to members of the adult public by the publican and therefore D is not a trespasser. D then goes into the lavatories to use them as such. At this point he has entered another part of a building but again his entry is made under the implied licence to customers wishing to use the lavatories. While inside the lavatory area, D decides to hide until after closing time in order to avoid buying his friend a drink.

Once the publican has shut the pub for the night, D becomes a trespasser in the lavatory. This is because he is not supposed to be there, i.e. he has no express or implied permission or lawful right to be in the lavatory after the pub has closed. While D is a trespasser at this point in time, if he went on to steal from the lavatory he would not commit burglary because he did not enter the lavatory as a trespasser, he became one at a later stage by exceeding a condition of entry. It is essential, for an offence of burglary to occur, that the defendant has entered the building or part of a building as a trespasser. D then leaves the lavatory and walks into the lounge area. Now D has entered a part of a building as a trespasser. Having no particular intention at this point, however, D has still not committed an offence of burglary.

On seeing the gaming machines in the lounge, D decides to break into them and steal the money inside. At this point, although he has two of the required intentions for s. 9(1)(a) (an intention to steal and an intention to cause unlawful damage), those intentions were formed after his entry into the lounge. Therefore, D has not committed burglary under s. 9(1)(a). Because he has not stolen/attempted to steal or inflicted/attempted to inflict grievous bodily harm on any person therein, D has not committed burglary under s. 9(1)(b) either.

D then breaks open a gaming machine in order to steal the cash contents. At this point he commits burglary under s. 9(1)(b). This is because, having entered a part of a building (the lounge) as a trespasser (because the pub is closed and D knows that to be the case), he attempts to steal. If he simply caused criminal damage to the machine without an intention of stealing the contents, D would not commit this offence because causing unlawful damage is only relevant to the offence under s. 9(1)(a).

Unlike s. 9(1)(a), there are only two further elements to the offence under s. 9(1)(b): the subsequent theft attempted theft of anything in the building or part of it, and the subsequent inflicting/attempted inflicting of grievous bodily harm to any person therein. The assault offences in question in respect of a burglary under s. 9(1)(b) are grievous bodily harm contrary to s. 18 or s. 20 of the Offences Against the Person Act 1861.

It has been suggested that if, having entered a building or part of a building as a trespasser, the defendant commits an offence of criminal damage, this will be an offence under s. 9(1)(b) of the Act as to damage or destroy something is also to steal it. This is not the case. If a person enters in such circumstances and causes criminal damage, there is little argument that such an activity would satisfy part of the offence of theft, i.e. appropriating property (see para. 1.14.2.4), but where is the ‘dishonesty’? In addition, this would clearly be an unwarranted extension of the burglary offence under s. 9(1)(b) of the Theft Act 1968. If Parliament wanted such activity to be caught by the legislation, it would have included the offence of criminal damage within the definition of burglary under s. 9(1)(b).

1.14.6 Aggravated Burglary

Offence Aggravated Burglary—Theft Act 1968, s. 10

  • Triable on indictment

  • Life imprisonment

The Theft Act 1968, s. 10 states:

  1. (1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive; …

Keynote

An aggravated burglary is committed when a person commits an offence of burglary (either a s. 9(1)(a) or a s. 9(1)(b)) and at the time he/she has with him/her a WIFE.

  • W –

    Weapon of offence

  • I –

    Imitation firearm

  • F –

    Firearm

  • E –

    Explosive

At the time

These words require consideration of the type of burglary the defendant is charged with. The moment at which a burglary under s. 9(1)(a) is committed is at the point of entry, therefore it is essential that the defendant has the WIFE with him/her when entering a building or part of a building with the intention of committing one of the trigger offences under s. 9(1)(a). If that is the case, the defendant commits aggravated burglary. The moment at which a burglary under s. 9(1)(b) is committed is when the defendant steals, inflicts grievous bodily harm on any person or attempts to do either. If the defendant has the WIFE with him/her when committing or attempting to commit either offence, an aggravated burglary is committed.

Example


A person (X) enters the kitchen of a house as a trespasser intending to steal property. At the point of entry X does not have any WIFE item with him, so at this point in time X has committed a s. 9(1)(a) burglary. While X is in the kitchen the occupier of the house enters the kitchen and disturbs him. X picks up a carving knife (not intending to steal it but intending to hurt the occupier with it if necessary) and threatens the occupier with it. At this point the carving knife becomes a weapon of offence (intended to cause injury and because of the concept of ‘instant arming’ (see below)) but this is not an aggravated burglary as X has not committed or attempted to commit theft or to inflict GBH. The occupier rushes towards X who stabs the occupier, inflicting GBH in the process. This is a s. 9(1)(b) burglary and at the time of its commission X has a WIFE item with him; as a result this becomes an aggravated burglary.

Has with him

‘Has with him’ is more restrictive than the term ‘possession’. It will require the defendant to have some degree of immediate control of the item (R v Pawlicki [1992] 1 WLR 827) and will normally (but not exclusively) be the same as ‘carrying’ (R v Klass [1998] 1 Cr App R 453) although the defendant need not actually have the WIFE item on his/her person to be in immediate control of it. It is also essential that the individual has knowledge of the presence of the WIFE item. So if a burglary is committed by a single offender who knows he/she has a bayonet in his/her coat pocket when the offence is committed, the issue of aggravated burglary is clear. However, what of the situation where two offenders commit such a burglary? Liability depends on knowledge.

Example


X and Y decide to commit a burglary together. X is concerned about being disturbed during the burglary and decides to take a knuckle-duster (a weapon of offence per se as it is made for causing injury) along with him when the burglary takes place; he does not tell Y about the knuckle-duster. When X and Y enter the building they intend to burgle, both commit a s. 9(1)(a) burglary. As X has a knuckle-duster with him at the time, X commits an aggravated burglary. However, Y does not commit the aggravated offence because he has no knowledge of the existence of the WIFE item. If X had told Y about the knuckle-duster then Y would have the required knowledge and would be deemed to have it with him so both would be guilty under s. 10 (R v Jones [1979] CLY 411).

Therefore, if the defendant has no knowledge of the WIFE item he/she does not commit the aggravated offence.

If several people are charged with the offence of aggravated burglary, it must be shown that one of the defendants who actually entered the building or part of a building had the weapon with him/her. The offence is not committed if the WIFE item was being carried by a person who did not enter the building (R v Klass [1998] 1 Cr App R 453). In Klass, the court considered the example of an armed getaway driver who remains in a car outside the building while his colleagues burgle a nearby house. The fact that the driver has, for example, a weapon of offence with him would not mean that an aggravated burglary, rather than a burglary, has been committed.

It is important to note that the aggravated offence is committed due to the presence of the WIFE when the s. 9(1)(a) or s. 9(1)(b) burglary is carried out. It is irrelevant that the defendant had the item with him/her for some other purpose unconnected with the burglary offence.

Instant Arming

Ordinary items can, instantaneously, change into weapons of offence; it is the intention of the person to use an item in a particular way that allows this to take place. In R v Kelly (1993) 97 Cr App R 245, the defendant entered a building using a screwdriver to facilitate entry. When he was confronted he prodded the person confronting him in the stomach with the screwdriver. At that moment the screwdriver instantly became a weapon of offence and the defendant was later convicted of aggravated burglary.

1.14.6.1 Firearm/Weapon of Offence/Explosive

The Theft Act 1968, s. 10 goes on to state:

  1. (1) … and for this purpose—

    1. (a) ‘firearm’ includes an airgun or pistol, and ‘imitation firearm’ means anything which has the appearance of being a firearm, whether capable of being discharged or not, and

    2. (b) ‘weapon of offence’ means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; and

    3. (c) ‘explosive’ means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

Weapon of Offence

This includes:

  • Items made for causing injury, e.g. a bayonet or a knuckle-duster (see para. 1.14.6).

  • Items adapted for causing injury, e.g. a screwdriver that has been sharpened at the tip.

  • Items intended for causing injury, e.g. an ordinary cutlery knife. The cutlery knife is certainly inoffensive in everyday use but if the defendant intends to use it to injure, it will fall into this category.

  • Items made, adapted or intended to incapacitate a person, e.g. handcuffs, rope, CS spray and chloroform.

The defendant must not only know of the presence of the weapon but also that it is a weapon of offence.

Note that the defences of lawful authority or reasonable excuse in relation to the possession of an offensive weapon appear not to apply to the offence of aggravated burglary.

Imitation Firearm

This includes anything which has the appearance of being a firearm, whether capable of being discharged or not (but note that this will not include the defendant’s fingers pointed at someone under a coat to resemble a firearm (R v Bentham [2005] UKHL 18)).

Firearm

This does not relate to the definition under the Firearms Act 1968. Indeed, the term is not defined other than to include airguns and air pistols.

Explosive

This would cover explosives such as TNT and items such as grenades as they are both manufactured to produce a practical effect by explosion. It also covers an item intended by the person having it with him/her for such a purpose, potentially bringing home-made devices or substances into the equation. The issue in relation to fireworks has yet to be firmly resolved by the courts, although they may well be excluded from the definition as fireworks are, by and large, manufactured to produce a pyrotechnic rather than practical effect by explosion and have been described as ‘things that are made for amusement’ (Bliss v Lilley (1862) 32 LJMC 3).

1.14.7 Taking a Conveyance without Consent

Offence Taking a Conveyance without the Owner’s Consent—Theft Act 1968, s. 12

  • Triable summarily

  • Six months’ imprisonment and/or a fine

The Theft Act 1968, s. 12 states:

Subject to subsections (5) and (6) below, a person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another’s use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.

Keynote

Taking a conveyance without consent (usually referred to as TWOC) is a summary only offence and as such there can be no ‘attempt’ (Criminal Attempts Act 1981, s. 1(1) and (4)).

As a summary offence, s. 12(1) proceedings are ordinarily subject to the time limit of six months from the day when the offence was committed (s. 127 of the Magistrates’ Courts Act 1980). However, this restriction has caused significant problems in cases where the analysis of forensic evidence has been needed. As a result, the Vehicles (Crime) Act 2001 extended the time limit for s. 12(1) offences. Where there is a certificate setting out the date on which sufficient evidence came to the knowledge of the person responsible for commencing the prosecution, proceedings should be commenced within six months of the date specified. This is subject to the proviso that such proceedings shall not be commenced after the end of the period of three years beginning with the day on which the offence was committed.

Once a conveyance has been ‘taken’ it cannot be ‘taken’ again by the same person before it has been recovered (DPP v Spriggs [1994] RTR 1). However, where the original taker abandons the conveyance, it may be ‘taken’ again by a further defendant and the original taker may be responsible for further offences arising out of its use before it is recovered.

The person taking the conveyance must do so intentionally, i.e. not simply by moving it accidentally (Blayney v Knight (1974) 60 Cr App R 269).

1.14.7.1 Consent of the Owner

Any ‘consent’ given must be true consent if the defendant is to avoid liability.

This area of the law has been subject to some rather unusual decision-making in the courts, one of which relates to consent. Consent, even if obtained by a deception, is still a valid consent. This will be the case unless the deception is one where identity is an issue.

Example

John Smith (who does not possess a driving licence) is walking along the street when he finds a driving licence in the name of Paul Grey. Smith takes the driving licence and visits a car hire company and asks to hire a car for a day. The assistant at the reception of the car hire company asks Smith for a driving licence and Smith produces the licence he found in the street (in the name of Paul Grey). The assistant photocopies the licence and asks for the fee of £100 which Smith pays. The assistant hands over a set of car keys and Smith drives away in the car (intending to return it later that day).

The above scenario would not represent an offence of TWOC; this is because the assistant has handed over a set of keys to Smith and consented to Smith taking the car. The relevant deception here relates to the possession of the driving licence, not to the name on the driving licence. The assistant would have handed over the keys to the car if the name on the driving licence was ‘Bugs Bunny’; identity is not an issue (Whittaker v Campbell [1984] QB 318).

Where consent is obtained by misrepresentation as to the purpose or destination of the journey, that misrepresentation has been held not to negate the consent given. So where D falsely represented to the owner of a car that he needed to drive it from Bedlington to Alnwick to sign a contract and was given the vehicle by the owner, he did not commit the offence when he drove it to Burnley instead. Once again, identity is not an issue when such consent is given (R v Peart [1970] 2 QB 672).

If, after a lawful purpose had been fulfilled, the defendant does not return the car but drove it off on his own business, the offence is committed as the defendant is going beyond the limits of the consent that had been given by the owner (R v Phipps (1970) 54 Cr App R 300).

Going beyond the express or implied permission of the owner may negate consent (Phipps). This is often encountered when employees deviate substantially from an agreed route in their employer’s vehicle or take the vehicle for a purpose entirely different from that permitted.

Example

X delivers bread on an established and precise route in his employer’s van. X decides to visit his friend who lives 50 miles away and diverts from the established route to do so.

This would constitute TWOC. X (the employee) has custody of the vehicle (that custody is known as control). When he substantially diverts from the delivery route he radically alters the purpose for which he was given the vehicle and can no longer be said to be in control of the vehicle for his employer’s purposes and he ‘takes’ the vehicle. A minor deviation, for example if X were to visit his favourite café (150 metres off the established route) and then return to his delivery round would not amount to an offence as the vehicle is still substantially being used for the employer’s purpose.

1.14.7.2 Lawful Authority

A police officer removing a vehicle which is obstructing traffic after an accident, council workers removing a vehicle parked in contravention of parking restrictions or an agent of a finance company repossessing a vehicle would be examples of such lawful authority.

1.14.7.3 Takes

You must show that the conveyance was moved. It does not matter by how little the conveyance is moved but simply starting the engine is not enough (R v Bogacki [1973] QB 832) nor is hiding in a car or doing anything else in it while it is stationary. A conveyance is taken even if it is put onto another vehicle to do so (R v Pearce [1973] Crim LR 321, where a rubber dinghy was put on the roof rack of a car and taken away).

1.14.7.4 Conveyance

The Theft Act 1968, s. 12(7) states:

  1. (a) ‘conveyance’ means any conveyance constructed or adapted for the carriage of a person or persons whether by land, water or air, except that it does not include a conveyance constructed or adapted for use only under the control of a person not carried in or on it, and ‘drive’ shall be construed accordingly …

Keynote

This definition includes cars, motor cycles, boats or aircraft.

The definition does not extend to hand carts or animals used as conveyances as neither are constructed or adapted for the carriage of persons.

Pedal cycles are expressly excluded by virtue of s. 12(5) of the Act. It is a separate summary offence (punishable with a fine) for a person, without having the consent of the owner or other lawful authority, to take a pedal cycle for his/her own or another’s use, or to ride a pedal cycle knowing it to have been taken without such authority (Theft Act 1968, s. 12(5)). The defence under s. 12(6) also applies to pedal cycles.

1.14.7.5 For His Own or Another’s Use

The conveyance must be taken for the taker’s or someone else’s ultimate use as a conveyance. So standing at the rear of a conveyance and pushing it around a corner to hide it as a practical joke satisfies the first part (‘taking’) but not the second ‘for his own or another’s use as a conveyance’ (R v Stokes [1983] RTR 59). This is because although the defendants may have ‘taken’ the conveyance it did not ‘convey’ them because they were in it or on it and further, they did not take it so someone could ultimately use it as such. If the practical joker pushed the car round a corner in order for a friend to then get into it and start it out of earshot and drive it to a further location, the offence would be committed at the time of pushing the car (it is being ‘taken’ to be used as a conveyance in the future).

When a person got into a Land Rover that was blocking his path and released the handbrake, allowing the vehicle to coast for several metres, it was held that his actions satisfied both elements (R v Bow (1977) 64 Cr App R 54). This is because getting into (or onto) a conveyance and moving it necessarily amounts to taking it for use as a conveyance, therefore the motives of the defendant in doing so are irrelevant. In the rubber dinghy example (see para. 1.14.7.3) the dinghy was ultimately going to be used as a conveyance by someone in the future.

1.14.7.6 Allow to be Carried

The person who commits this offence must know that the conveyance has been taken without the consent of the owner or other lawful authority; ‘suspecting’ the conveyance has been taken would not be enough. Further, the conveyance must actually move when the person drives it or allows him/herself to be carried in or on it (the same as the ‘take’ element of the offence).

1.14.7.7 Defences

The Theft Act 1968, s. 12(6) states:

  1. (6) A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have had the owner’s consent if the owner knew of his doing it and the circumstances of it.

It is essential that this belief exists at the time of the taking. It is not enough if the owner says, later, that he would have consented had he known (R v Ambler [1979] RTR 217).

1.14.8 Aggravated Vehicle-Taking

Offence Aggravated Vehicle-taking—Theft Act 1968, s. 12A

  • Triable either way

  • If the accident under s. 12A(2)(b) caused death 14 years’ imprisonment, otherwise two years’ imprisonment and/or a fine on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 12A states:

  1. (1) Subject to subsection (3) below, a person is guilty of aggravated taking of a vehicle if—

    1. (a) he commits an offence under section 12(1) above (in this section referred to as a ‘basic offence’) in relation to a mechanically propelled vehicle; and

    2. (b) it is proved that, at any time after the vehicle was unlawfully taken (whether by him or another) and before it was recovered, the vehicle was driven, or injury or damage was caused, in one or more of the circumstances set out in paragraphs (a) to (d) of subsection (2) below.

  2. (2) The circumstances referred to in subsection (1)(b) above are—

    1. (a) that the vehicle was driven dangerously on a road or other public place;

    2. (b) that, owing to the driving of the vehicle, an accident occurred by which injury was caused to any person;

    3. (c) that, owing to the driving of the vehicle, an accident occurred by which damage was caused to any property, other than the vehicle;

    4. (d) that damage was caused to the vehicle.

Keynote

In addition to the above sentences, where a person is convicted of aggravated vehicle-taking, disqualification from driving (for a minimum of 12 months) is obligatory, endorsement of licence is obligatory and the penalty points which may be imposed for the offence are 3 to 11. The fact that the person concerned did not drive the vehicle at any particular time or at all is not a special reason to avoid obligatory disqualification (Road Traffic Offenders Act 1988, s. 34).

Before this offence is made out there must first of all be an offence under s. 12(1) which includes an offence of ‘being carried’, and the conveyance involved must be a ‘mechanically propelled vehicle’ (see Road Policing, chapter 3.1).

You need only prove that one of the consequential factors occurred before the vehicle was recovered (Dawes v DPP [1995] 1 Cr App R 65) namely that, between the vehicle being taken and its being recovered:

  • it was driven dangerously on a road/public place;

  • owing to the driving of it, an accident occurred by which injury was caused to anyone or damage was caused to any other property; or

  • damage was caused to it.

‘Dangerous driving’ will require the same proof as the substantive offence (see Road Policing, chapter 3.3). There is no need to show any lack of care in the driving of the vehicle to prove s. 12A(2)(b), (c) or (d) (R v Marsh [1997] 1 Cr App R 67). A vehicle will be ‘recovered’ once it has been restored to its owner or other lawful possession or custody (s. 12A(8)). This would include occasions where a vehicle has come into the possession of the police.

The word ‘accident’ for the purposes of the offence of aggravated vehicle taking gets its meaning from the context of that legislation. As such, s. 12A is intended to have regard to the consequences of what occurred and is not particularly concerned about the way in which those consequences came about. Therefore where a vehicle had been in motion and thereby caused the victim’s death, the word ‘accident’ applied (R v Branchflower [2004] EWCA Crim 2042). Damage to the vehicle does not include damage caused by breaking into it in order to commit the ‘basic offence’. This is because damage caused at this point will be caused before the vehicle has been ‘taken’ and so at that stage, the ‘basic offence’ will not have been carried out.

1.14.8.1 Defence to Aggravated Vehicle-Taking

The Theft Act 1968, s. 12A states:

  1. (3) A person is not guilty of an offence under this section if he proves that, as regards any such proven driving, injury or damage as is referred to in subsection (1)(b) above, either—

    1. (a) the driving, accident or damage referred to in subsection (2) above occurred before he committed the basic offence; or

    2. (b) he was neither in nor on nor in the immediate vicinity of the vehicle when that driving, accident or damage occurred.

Keynote

‘Immediate vicinity’ is not defined but will be a question of fact for the jury/magistrate(s) to determine in each case.

1.14.9 Interfering with Vehicles

Offence Interfering with Vehicles—Criminal Attempts Act 1981, s. 9

  • Triable summarily

  • Three months’ imprisonment and/or a fine

The Criminal Attempts Act 1981, s. 9 states:

  1. (1) A person is guilty of the offence of vehicle interference if he interferes with a motor vehicle or trailer or with anything carried in or on a motor vehicle or trailer with the intention that an offence specified in subsection (2) below shall be committed by himself or some other person.

  2. (2) The offences mentioned in subsection (1) above are—

    1. (a) theft of the motor vehicle or trailer or part of it;

    2. (b) theft of anything carried in or on the motor vehicle or trailer; and

    3. (c) an offence under section 12(1) of the Theft Act 1968 (taking and driving away without consent);

      and, if it is shown that a person accused of an offence under this section intended that one of those offences should be committed, it is immaterial that it cannot be shown which it was.

  3. (3)–(4)

  4. (5) In this section ‘motor vehicle’ and ‘trailer’ have the meanings assigned to them by section 185(1) of the Road Traffic Act 1988.

Keynote

The term ‘interference’ is not defined.

This offence is one of specific intent and you must prove that the defendant interfered with the vehicle, etc. with one of the intentions listed (note, however, that it is not necessary to show which particular intention).

For the definitions of motor vehicle and trailer, see Road Policing, chapter 3.1.

1.14.10 Going Equipped

Offence Going Equipped for Stealing etc.—Theft Act 1968, s. 25

  • Triable either way

  • Three years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 25 states:

  1. (1) A person shall be guilty of an offence if, when not at his place of abode, he has with him any article for use in the course of or in connection with any burglary or theft.

Keynote

A person’s place of abode means where he/she resides; it does not include his/her place of business (unless, presumably, they are one and the same place) (R v Bundy [1977] 1 WLR 914). If a person lives in a vehicle then that vehicle will be regarded only as his/her ‘place of abode’ if it is parked at the place where the person ‘abides’ or intends to ‘abide’ (Bundy). Therefore, if a person is found in his/her vehicle away from such a site and at the time has with him/her articles as described under s. 25, this offence is committed.

‘Has with him’ is a narrower requirement than ‘possession’ and, as with aggravated burglary generally means that defendants must have the article within their immediate control. It would suffice if defendants had the article within their immediate control in their car or bag, at their workplace, or on their person.

If you can prove that the article was made, adapted or intended for burglary or theft, that fact will be evidence that the person had it with him/her for that purpose (s. 25(3)).

‘Article’ can mean almost any physical object, such as a bunch of skeleton keys (R v Metcalfe [1971] Crim LR 112) or a torch and screwdriver (R v Harrison [1970] Crim LR 415). The indictment in Ellames referred to a ‘sawn-off shotgun, a wig, three woollen hats, two masks, a pair of goggles, a boiler suit, a motor vehicle, two containers and a quantity of ammonia, gloves and shot-gun cartridges’. ‘Article’ would appear not to include animate objects, e.g. a trained monkey (Daly v Cannon [1954] 1 WLR 261).

The offence is directed against acts preparatory to the offences of burglary (contrary to s. 9 of the Theft Act 1968), theft (contrary to s. 1 of the Theft Act 1968) and taking a conveyance (contrary to s. 12 of the Theft Act 1968). ‘Theft’ includes theft with force which would amount to robbery.

You do not need to prove that persons having the article with them intended to use it themselves and it will be enough to show that they intended it to be used by someone for one of the purposes in s. 25(1) (R v Ellames [1974] 1 WLR 1391). Simply being a passenger in a car where such an article is found is not enough to prove the offence (R v Lester (1955) 39 Cr App R 157). The articles must be for some future use; it is not enough to show that the defendant had articles that had been used in the course of, or in connection with, one of the proscribed offences.

The power of search under s. 1 of the Police and Criminal Evidence Act 1984 applies to this offence (see General Police Duties, chapter 4.5).

1.14.11 Handling Stolen Goods

Offence Handling Stolen Goods—Theft Act 1968, s. 22

  • Triable either way

  • 14 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 22 states:

  1. (1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

Keynote

If the goods have yet to be stolen, s. 22 would not apply and the offence of conspiracy should be considered (R v Park (1988) 87 Cr App R 164).

Handling can only be committed otherwise than in the course of stealing. The ‘stealing’ referred to is the crime whereby the goods became ‘stolen’ in the first place.

The defendant must know or believe the goods to be stolen. Turning a blind eye to the facts, ‘can be capable, depending on the circumstances, of providing evidence going to prove knowledge or belief’ (Martin Edward Pace & Simon Peter Rogers v R [2014] EWCA Crim 186). Suspicion will not be enough (R v Griffiths (1974) 60 Cr App R 14).

Knowledge or belief that the goods were stolen is not enough; the goods must be handled dishonestly. Here, dishonesty will be determined as per the decision in R v Ghosh [1982] QB 1053 (see para. 1.14.2.3).

There is no need to prove that the thief, blackmailer, etc. has been convicted of the primary offence before prosecuting the alleged handler, neither is it always necessary to identify who that person was.

Care needs to be taken if a defendant is to be accused of handling goods stolen from a specific person or place. The ownership of the goods will become an integral part of the prosecution case and it will be necessary to provide evidence proving that aspect of the offence (Iqbal v DPP [2004] EWHC 2567 (Admin)).

1.14.11.1 ‘Goods’ and ‘Stolen Goods’

Goods

The Theft Act 1968, s. 34(2)(b) states:

‘Goods’, except insofar as the context otherwise requires, includes money and every other description of property except land, and includes things severed from the land by stealing.

Keynote

A ‘thing in action’ is ‘goods’ because it falls within ‘every other description of property’.

Stolen Goods

The Theft Act 1968, s. 24 states:

  1. (1) The provisions of this Act relating to goods which have been stolen shall apply whether the stealing occurred in England or Wales or elsewhere, and whether it occurred before or after the commencement of this Act, provided that the stealing (if not an offence under this Act) amounted to an offence where and at the time when the goods were stolen; and references to stolen goods shall be construed accordingly.

  2. (2) For purposes of those provisions references to stolen goods shall include, in addition to the goods originally stolen and parts of them (whether in their original state or not),—

    1. (a) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of the thief as being the proceeds of any disposal or realisation of the whole or part of the goods stolen or of goods representing the stolen goods; and

    2. (b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any part of them as being the proceeds of any disposal or realisation of the whole or part of the stolen goods handled by him or of goods so representing them.

  3. (3) But no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody, or after that person and any other person claiming through him have otherwise ceased as regards those goods to have any right to restitution in respect of the theft.

  4. (4) For purposes of the provisions of this Act relating to goods which have been stolen (including subsections (1) to (3) above) goods obtained in England or Wales or elsewhere either by blackmail or subject to subsection (5) below, by fraud (within the meaning of the Fraud Act 2006) shall be regarded as stolen; and ‘steal’, ‘theft’ and ‘thief’ shall be construed accordingly.

  5. (5) Subsection (1) above applies in relation to goods obtained by fraud as if—

    1. (a) the reference to the commencement of this Act were a reference to the commencement of the Fraud Act 2006, and

    2. (b) the reference to an offence under this Act were a reference to an offence under section 1 of that Act.

The Theft Act 1968, s. 24A states:

  1. (7) Subsection (8) below applies for purposes of provisions of this Act relating to stolen goods (including subsection (4) above).

  2. (8) References to stolen goods include money which is dishonestly withdrawn from an account to which a wrongful credit has been made, but only to the extent that the money derives from the credit.

Keynote

If goods are not stolen there is no handling. Whether they are so stolen is a question of fact for a jury or magistrate(s).

If the property in question appears to represent the proceeds of an offence that falls outside the scope of s. 24 or s. 24A(8), it may be possible to consider charges under the ‘money laundering’ provisions (see para. 1.14.18).

Goods obtained by fraud and blackmail are included in the definition of ‘stolen goods’ under s. 24(4) and (5). The references to fraud are to the general offence of fraud under s. 1 of the Fraud Act 2006. Goods gained through robbery or burglary will be ‘stolen’ as theft is an intrinsic element of both offences.

‘Wrongful credits’ are included within the meaning of stolen goods under certain circumstances and are dealt with later in this chapter (see para. 1.14.13).

1.14.11.2 Section 24 Explained

Under s. 24(1) a person can still be convicted of handling if the goods were stolen outside England and Wales but only if the goods were taken under circumstances which amounted to an offence in the other country.

Under s. 24(2), goods will be classed as stolen only if they are the property which was originally stolen or if they have at some time represented the proceeds of that property in the hands of the thief or a ‘handler’.

Therefore if an iPhone is stolen, and sold to an unsuspecting party who then part-exchanges it for a new one at a high street retailer, the first iPhone will be ‘stolen’ goods, the new one will not. If the first person buying the original iPhone knew or believed that it was stolen, the new iPhone will be treated as stolen goods.

Under s. 24(3), once goods have been restored to lawful possession they cease to be stolen. This situation does not cause problems when police officers recover stolen property and then wait for it to be collected by a handler (Houghton v Smith [1975] AC 476) as the Criminal Attempts Act 1981 and the common-law rulings on ‘impossibility’ (see chapter 1.3) mean that a defendant could be dealt with in a variety of ways:

  • Theft—collecting the property will be an ‘appropriation’.

  • Handling—an arrangement to come and collect stolen goods will probably have been made while they were still ‘stolen’.

  • Criminal attempt—the person collecting the goods has gone beyond merely preparing to handle them.

1.14.11.3 Proof that Goods were Stolen

The Theft Act 1968, s. 27 states:

  1. (4) In any proceedings for the theft of anything in the course of transmission (whether by post or otherwise), or for handling stolen goods from such a theft, a statutory declaration made by any person that he dispatched or received or failed to receive any goods or postal packet, or that any goods or postal packet when dispatched or received by him were in a particular state or condition, shall be admissible as evidence of the facts stated in the declaration, subject to the following conditions:—

    1. (a) a statutory declaration shall only be admissible where and to the extent to which oral evidence to the like effect would have been admissible in the proceedings; and

    2. (b) a statutory declaration shall only be admissible if at least seven days before the hearing or trial a copy of it has been given to the person charged, and he has not, at least three days before the hearing or trial or within such further time as the court may in special circumstances allow, given the prosecutor written notice requiring the attendance at the hearing or trial of the person making the declaration.

Keynote

Section 27(4) allows for evidence to be admitted proving that goods ‘in the course of transmission’ have been stolen. They allow for a statutory declaration by the person dispatching or receiving goods or postal packets as to when and where they were dispatched and when or if they arrived and, in each case, their state or condition (e.g. if they had been opened or interfered with). The declaration will only be admissible in circumstances where an oral statement would have been admissible and if a copy has been served on the defendant at least seven days before the hearing and he/she has not, within three days of the hearing, served written notice on the prosecutor requiring the attendance of the person making the declaration.

This section is to be construed in accordance with s. 24 generally (s. 27(5)).

1.14.11.4 Handling

The offence of handling stolen goods is made up of many facets. Therefore to charge a defendant without specifying a particular form of handling is not bad for duplicity (R v Nicklin [1977] 1 WLR 403). However, the offence can be divided for practical purposes into two parts:

  • receiving/arranging to receive stolen goods, in which case the defendant acts for his/her own benefit, and

  • assisting/acting for the benefit of another person, in which case that assistance to another or benefit of another must be proved.

1.14.11.5 Receiving

Receiving does not require the physical reception of goods and can extend to exercising control over them. Things in action, such as bank credits from a stolen cheque, can be ‘received’.

‘Arranging to receive’ would cover circumstances which do not go far enough to constitute an attempt, that is, actions which are merely preparatory to the receiving of stolen goods may satisfy the elements under s. 22 even though they would not meet the criteria under the Criminal Attempts Act 1981.

1.14.11.6 Assisting/Acting for Another’s Benefit

Assisting or acting for the benefit of another can be committed by misleading police officers during a search (R v Kanwar [1982] 1 WLR 845).

Disposing of the stolen goods or assisting in their disposal or realisation usually involves physically moving them or converting them into a different form (R v Forsyth [1997] 2 Cr App R 299).

If the only person ‘benefiting’ from the defendant’s actions is the defendant, this element of the offence will not be made out (R v Bloxham [1983] 1 AC 109). Similarly, if the only ‘other’ person to benefit is a co-accused on the same charge, the offence will not be made out (R v Gingell [2000] 1 Cr App R 88).

1.14.11.7 Power to Search for Stolen Goods

The Theft Act 1968, s. 26 states:

  1. (1) If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any stolen goods, the justice may grant a warrant to search for and seize the same; but no warrant to search for stolen goods shall be addressed to a person other than a constable except under the authority of an enactment expressly so providing.

  2. (2)

  3. (3) Where under this section a person is authorised to search premises for stolen goods, he may enter and search the premises accordingly, and may seize any goods he believes to be stolen goods.

  4. (4)

  5. (5) This section is to be construed in accordance with section 24 of this Act; and in subsection (2) above the references to handling stolen goods shall include any corresponding offence committed before the commencement of this Act.

Keynote

Section 26 provides a general power to search for and seize stolen goods, whether identified in the search warrant or not and magistrates are entitled to act on material provided by the police that gives rise to a reasonable belief that stolen goods will be found (R Cruickshank Ltd v Chief Constable of Kent Constabulary [2002] EWCA Civ 1840).

1.14.11.8 Guilty Knowledge in Cases of Handling and Theft

Section 27 of the Theft Act 1968 allows for the admissibility of previous misconduct and states:

  1. (3) Where a person is being proceeded against for handling stolen goods (but not for any offence other than handling stolen goods), then at any stage of the proceedings, if evidence has been given of his having or arranging to have in his possession the goods the subject of the charge, or of his undertaking or assisting in, or arranging to undertake or assist in, their retention, removal, disposal or realisation, the following evidence shall be admissible for the purpose of proving that he knew or believed the goods to be stolen goods—

    1. (a) evidence that he has had in his possession, or has undertaken or assisted in the retention, removal, disposal or realisation of, stolen goods from any theft taking place not earlier than 12 months before the offence charged; and

    2. (b) (provided that seven days’ notice in writing has been given to him of the intention to prove the conviction) evidence that he has within the five years preceding the date of the offence charged been convicted of theft or of handling stolen goods.

Keynote

This provision applies to all forms of handling (R v Ball [1983] 1 WLR 801) but it can only be used where handling is the only offence involved in the proceedings.

What constitutes recent possession is a matter of fact and degree dependent on the circumstances of each case. This presumption can be rebutted by the person offering a true explanation for the possession (R v Schama (1914) 84 LJ KB 396, R v Garth [1949] 1 All ER 773, R v Aves [1950] 2 All ER 330 and R v Williams [1962] Crim LR 54).

‘Recent possession’ is not defined and so is a question of fact in each case. In R v Smythe (1981) 72 Cr App R 8, the Court of Appeal held that property found in the possession of an accused, stolen two or three months earlier during some robberies and burglaries, did not amount to recent possession for the offence of handling stolen goods generally.

1.14.12 Advertising Rewards

Offence Advertising a Reward—Theft Act 1968, s. 23

  • Triable summarily

  • Fine

The Theft Act 1968, s. 23 states:

Where any public advertisement of a reward for the return of any goods which have been stolen or lost uses any words to the effect that no questions will be asked, or that the person producing the goods will be safe from apprehension or inquiry, or that any money paid for the purchase of the goods or advanced by way of loan on them will be repaid, the person advertising the reward and any person who prints or publishes the advertisement shall [commit an offence].

Keynote

This offence applies to the person advertising such a reward and the person/company who prints/publishes that advertisement. This second aspect attracts ‘strict liability’, in that there is no need to demonstrate any particular mens rea on the part of the printer/publisher (Denham v Scott (1983) 77 Cr App R 210). The important features are the fact that no questions will be asked or that the person will be given some form of ‘immunity’ from arrest or investigation. There is no mention of any promise of immunity from prosecution or civil claim.

So advertising a reward in a newspaper for a lost cat taking the form ‘£50 reward for finding “Mr Tibbs” lost in Smith Street’ is not an offence. The same advert including a phrase ‘No questions asked on return’ would be an offence. It is not an offence to advertise a reward but it is in combination with the addition to the advert that any person returning the goods will be safe from apprehension etc.

1.14.13 Retaining a Wrongful Credit

Offence Dishonestly Retaining a Wrongful Credit—Theft Act 1968, s. 24A

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 24A states:

  1. (1) A person is guilty of an offence if—

    1. (a) a wrongful credit has been made to an account kept by him or in respect of which he has any right or interest;

    2. (b) he knows or believes that the credit is wrongful; and

    3. (c) he dishonestly fails to take such steps as are reasonable in the circumstances to secure that the credit is cancelled.

  2. (2) References to a credit are to a credit of an amount of money.

  3. (2A) A credit to an account is wrongful to the extent that it derives from—

    1. (a) theft;

    2. (b) blackmail;

    3. (c) fraud (contrary to section 1 of the Fraud Act 2006); or

    4. (d) stolen goods.

      (subsections (3) and (4) repealed by the Fraud Act 2006)

  4. (5) In determining whether a credit to an account is wrongful, it is immaterial (in particular) whether the account is overdrawn before or after the credit is made.

  5. (6)

  6. (7) Subsection (8) below applies for purposes of provisions of this Act relating to stolen goods (including subsection (2A) above).

  7. (8) References to stolen goods include money which is dishonestly withdrawn from an account to which a wrongful credit has been made, but only to the extent that the money derives from the credit.

  8. (9) ‘Account’ means an account kept with—

    1. (a) a bank;

    2. (b) a person carrying on a business which falls within subsection (10) below; or

    3. (c) a person falling within any of paragraphs (a) to (j) of the definition of ‘electronic money issuer’ in regulation 2(1) of the Electric Money Regulations 2011.

  9. (10) A business falls within this subsection if—

    1. (a) in the course of the business money received by way of deposit is lent to others; or

    2. (b) any other activity of the business is financed, wholly or to any material extent, out of the capital of or the interest on any money received by way of deposit.

  10. (11) References in subsection (10) above to a deposit must be read with—

    1. (a) section 22 of the Financial Services and Markets Act 2000;

    2. (b) any relevant order under that section; and

    3. (c) Schedule 2 of that Act;

      but any restriction on the meaning of deposit which arises from the identity of the person making it, is to be disregarded.

  11. (12) For the purposes of subsection (10) above—

    1. (a) all the activities which a person carries on by way of business shall be regarded as a single business carried on by him; and

    2. (b) ‘money’ includes money expressed in a currency other than sterling.

Keynote

The wrongful credit to an account can occur in two ways: it may come from the circumstances outlined under s. 1 of the Fraud Act 2006 or it may come from one of the dishonest sources set out in s. 24A(2A).

These offences will generally be restricted to transactions involving the crediting of accounts held with financial institutions.

There is a requirement for dishonesty (in the Ghosh sense, see para. 1.14.2.3). However, there is no requirement for any deception.

The effects of s. 24A(8) are that money derived from credit received under s. 24A of the Theft Act 1968 may amount to stolen goods.

Example


  • If the proceeds of a theft by A are paid into his/her bank account they are stolen goods because they represent the stolen goods in the hands of the thief (s. 24(4)).

  • If they are then transferred into B’s bank account, they cease to be stolen goods. This is because the ‘thing in action’ (the credit balance) created by the transfer in B’s name is a different ‘thing in action’ from the one originally created by A (R v Preddy [1996] AC 815).

  • As such, the credit balance in B’s name has never represented the proceeds of the theft in the hands of the thief.

  • But if B retains the wrongful credit made to his/her account then he/she commits the s. 24A offence if he/she dishonestly retains it, knowing or believing it to be derived from one or other of those offences.

  • If B withdraws money from the credited account, that money then, by virtue of s. 24A(8), becomes stolen goods once more.

This offence is also unusual in that the actus reus not only can be satisfied by an ‘omission’, but necessarily involves an omission or a failure to act (i.e. retaining something does not involve a positive act).

1.14.14 Abstracting Electricity

Offence Abstracting Electricity—Theft Act 1968, s. 13

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1968, s. 13 states:

A person who dishonestly uses without due authority, or dishonestly causes to be wasted or diverted, any electricity shall be guilty of an offence.

Keynote

As electricity is not ‘property’ (for the purpose of theft), this offence was created to deal with its dishonest use, waste or diversion. As electricity cannot be ‘stolen’, its dishonest use or wastage cannot form an element of burglary. Diverting a domestic electrical supply so as to bypass the meter, using another’s telephone without authority (Low v Blease [1975] Crim LR 513) or unauthorised surfing on the Internet by an employee at work are examples of the offence (provided in each case that dishonesty was present).

1.14.15 Making Off without Payment

Offence Making Off without Payment—Theft Act 1978, s. 3

  • Triable either way

  • Two years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Theft Act 1978, s. 3 states:

  1. (1) Subject to subsection (3) below, a person who, knowing that payment on the spot for any goods supplied or service done is required or expected from him, dishonestly makes off without having paid as required or expected and with intent to avoid payment of the amount due shall be guilty of an offence.

  2. (2) For purposes of this section ‘payment on the spot’ includes payment at the time of collecting goods on which work has been done or in respect of which service has been provided.

  3. (3) Subsection (1) above shall not apply where the supply of the goods or the doing of the service is contrary to law, or where the service done is such that payment is not legally enforceable.

Keynote

This offence is often committed by motorists who drive off without paying for petrol, diners who run off after a meal and ‘punters’ who jump out of taxi cabs (DPP v Ray [1974] AC 370; Edwards v Ddin [1976] 1 WLR 942; R v Brooks (1983) 76 Cr App R 66). Some problems can arise in cases of alleged theft where the ownership in the property has passed to the defendant before the act of appropriation; this offence offers a solution to some such cases.

Occasions where the supply of goods or services is contrary to law or is not legally enforceable, e.g. prostitution, are excluded (s. 3(3)). Making off without payment after the provision of an unlawful service, or one for which payment is not legally enforceable would not then be caught by s. 3. If there is doubt as to whether the defendant has actually ‘made off’ from the spot then he/she can be charged with attempting the offence.

There must be an intention to avoid payment; delaying payment due or making someone wait for payment is not enough. In R v Vincent [2001] 1172 EWCA Crim 295, the Court of Appeal acknowledged a ‘loophole’ in s. 3. This loophole might be illustrated as follows:

  • A person checks into an hotel and runs up a bill.

  • The person deceives the proprietor into agreeing that the bill will be settled at some later date (as opposed to on departure).

  • Having gained that agreement, the person checks out of the hotel and never makes any payment.

In such a situation, there was no longer an expectation of payment at the time when the person checked out of the hotel. This expectation had been removed by the agreement; the fact that the agreement had been obtained dishonestly did not reinstate the expectation of payment on departure. The offence under s. 3 is a simple and straightforward one which applies to a limited set of circumstances only (which were not covered by the above facts). The limited scope of this offence would suggest that alternative charges of theft and/or fraud should be considered.

If the person driving or running away from the garage, restaurant, taxi cab, etc. does so because he/she feels aggrieved at the service received or is in dispute with the supplier, then the question of fraud should be considered against the standards of ordinary, honest people (per R v Ghosh [1982] QB 1053), see para. 1.14.2.3.

1.14.16 Re-programming Mobile Phones

Offence Re-programming Mobile Phones—Mobile Telephones (Re-programming) Act 2002, s. 1

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Mobile Telephones (Re-programming) Act 2002, s. 1 states:

  1. (1) A person commits an offence if—

    1. (a) he changes a unique device identifier,

    2. (b) he interferes with the operation of a unique device identifier,

    3. (c) he offers or agrees to change, or interfere with the operation of, a unique device identifier, or

    4. (d) he offers or agrees to arrange for another person to change, or interfere with the operation of, a unique device identifier.

  2. (2) A unique device identifier is an electronic equipment identifier which is unique to a mobile wireless communications device.

  3. (3) But a person does not commit an offence under this section if—

    1. (a) he is the manufacturer of the device, or

    2. (b) he does the act mentioned in subsection (1) with the written consent of the manufacturer of the device.

Keynote

The unique device identifier is currently the International Mobile Equipment Identity (IMEI) number which identifies the handset of a mobile phone. It can be found on most mobile phones either behind the battery or by keying in the number *#06#. The wording of the section allows for future development of mobile phones which may use different equipment identifiers. Changing the unique identifier, adding a chip or otherwise interfering with that identifier is an offence.

It is the view of the Home Office that the international Global System for Mobiles (GSM) standards make it unnecessary for anyone other than a manufacturer or its agent to alter an IMEI number. For that reason, s. 1(3) creates a statutory defence for manufacturers or people with the written consent of the manufacturer.

1.14.16.1 Having or Supplying Anything to Facilitate Re-programming

Offence Having or Supplying Anything for Re-programming Mobile Phones—Mobile Telephones (Re-programming) Act 2002, s. 2

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Mobile Telephones (Re-programming) Act 2002, s. 2 states:

  1. (1) A person commits an offence if—

    1. (a) he has in his custody or under his control anything which may be used for the purpose of changing or interfering with the operation of a unique device identifier, and

    2. (b) he intends to use the thing unlawfully for that purpose or to allow it to be used unlawfully for that purpose.

  2. (2) A person commits an offence if—

    1. (a) he supplies anything which may be used for the purpose of changing or interfering with the operation of a unique device identifier, and

    2. (b) he knows or believes that the person to whom the thing is supplied intends to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose.

  3. (3) A person commits an offence if—

    1. (a) he offers to supply anything which may be used for the purpose of changing or interfering with the operation of a unique device identifier, and

    2. (b) he knows or believes that the person to whom the thing is offered intends if it is supplied to him to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose.

Keynote

Having something in your custody or under your control is wider than having it in your ‘possession’.

The above offences apply to anything that may be used for the restricted purposes. It must be shown that, in each case, the defendant had the article, object, etc. or supplied/offered to supply it and that he/she had the requisite intent or knowledge at the time.

The definition of ‘unique device identifier’ is the same as for the s. 1 offence and a thing is used by a person unlawfully for a purpose if, in using it for that purpose, he/she commits an offence under s. 1.

1.14.17 Buying Scrap Metal for Cash

1.14.17.1 Offence of Buying Scrap Metal for Cash

Metal theft has a significant and sometimes disproportionate impact on industry and the wider community. The impact for the railway network can be particularly severe and is a major concern for Network Rail and the British Transport Police (BTP).

Dealing in stolen metal can of course be dealt with as handling stolen goods or via the Proceeds of Crime Act although the framework that regulates scrap metal dealers’ operations contains an offence of buying scrap metal for cash.

Offence Buying Scrap Metal for Cash—Scrap Metal Dealers Act 2013

  • Summary only

  • Fine

The Scrap Metal Dealers Act 2013, s. 12 states:

  1. (1) A scrap metal dealer must not pay for scrap metal except—

    1. (a) by a cheque which under section 81A of the Bills of Exchange Act 1882 is not transferable, or

    2. (b) by an electronic transfer of funds (authorised by credit or debit card or otherwise).

Keynote

The Secretary of State may by order amend s.12(1) to permit other methods of payment (s. 12(2)).

‘Paying’ includes paying in kind (with goods or services) (s. 12(3)).

Section 12(4) states that if a scrap metal dealer pays for scrap metal in breach of subs. (1), each of the following is guilty of an offence:

  1. (a) the scrap metal dealer;

  2. (b) if the payment is made at a site, the site manager;

  3. (c) any person who makes the payment acting for the dealer.

Under s.12(5) it is a defence for a person within subs. (4)(a) or (b) who is charged with an offence under this section to prove that the person:

  1. (a) made arrangements to ensure that the payment was not made in breach of subsection (1), and

  2. (b) took all reasonable steps to ensure that those arrangements were complied with.

1.14.18 Proceeds of Crime

1.14.18.1 Proceeds of Crime Act 2002

The offences and powers under the Proceeds of Crime Act 2002 are connected with day to day criminality and are relevant to all police officers. This section provides an overview of the three principal offences relating to ‘Money Laundering’ created by s. 327 (concealing criminal property), s. 328 (arrangements in relation to criminal property) and s. 329 (acquisition, use and possession of criminal property) of the Act. To begin with we examine the concepts of ‘criminal conduct’ and ‘criminal property’.

1.14.18.2 Criminal Conduct

The Proceeds of Crime Act 2002, s. 340 states:

  1. (2) Criminal conduct is conduct which—

    1. (a) constitutes an offence in any part of the United Kingdom, or

    2. (b) would constitute an offence in any part of the United Kingdom if it occurred there.

Section 340(4) states that it is immaterial:

  • who carried out the criminal conduct

  • who benefited from it

  • whether the conduct occurred before or after the passing of the Act.

So criminal conduct not only includes the behaviour of the defendant but also of any other person. Effectively this states that any offence, committed by any person, anywhere at all and at any time is ‘criminal conduct’. As a consequence of s. 340, a conviction can be obtained under the Proceeds of Crime Act even if the prosecution cannot specify the offence or offences that gave rise to the proceeds or identify the person(s) responsible for the offence(s).

1.14.18.3 Criminal Property

The Proceeds of Crime Act 2002, s. 340 states:

  1. (3) Property is criminal property if—

    1. (a) it constitutes a person’s benefit from criminal conduct or it represents such a benefit (in whole or in part and whether directly or indirectly) and,

    2. (b) the alleged offender knows or suspects that it constitutes or represents such a benefit.

Keynote

The offences under ss. 327, 328 and 329 are often referred to as ‘money laundering’. Note that the definition of ‘property’ does not just relate to money. Section 340(9) of the Act defines property as all property wherever situated and includes:

  • money

  • all forms of property, real or personal, heritable or movable, and

  • things in action and other intangible or incorporeal property.

(Incorporeal property relates to property or an asset that does not have value in material form, such as a right or a patent.)

The mens rea relating to criminal property and therefore to all three offences is knowing or suspecting. Dishonesty is not required. In R v Da Silva [2006] EWCA Crim 1654 the Court of Appeal upheld the conviction, concluding that the word ‘suspect’ meant that the defendant had to think that there was a possibility, which was more than fanciful, that the relevant facts existed. A vague feeling of unease would not suffice. The fact the suspicion alone will suffice means that proving such offences is remarkably less burdensome for the prosecution than the potential alternative to such offences, a charge of handling stolen goods where the defendant must be proved to know or believe that goods are stolen goods.

1.14.18.4 Concealing Criminal Property

Offence Concealing Criminal Property—Proceeds of Crime Act 2002, s. 327

  • Triable either way

  • 14 years’ imprisonment on indictment and/or a fine

  • Six months’ imprisonment and/or a fine summarily

The Proceeds of Crime Act 2002, s. 327 states:

  1. (1) A person commits an offence if he—

    1. (a) conceals criminal property;

    2. (b) disguises criminal property;

    3. (c) converts criminal property;

    4. (d) transfers criminal property;

    5. (e) removes criminal property from England and Wales and Scotland or from Northern Ireland.

  2. (2) But a person does not commit such an offence if—

    1. (a) he makes an authorised disclosure under section 338 and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent;

    2. (b) he intended to make such a disclosure but had a reasonable excuse for not doing so;

    3. (c) the act he does is done in carrying out a function he has relating to the enforcement of any provision of this Act or of any other enactment relating to criminal conduct or benefit from criminal conduct.

  3. (3) Concealing or disguising criminal property includes concealing or disguising its nature, source, location, disposition, movement or ownership or any rights with respect to it.

Keynote

There is an overlap between offences of concealing criminal property and handling stolen goods. However, whereas handling only occurs ‘otherwise than in the course of stealing’ and ‘by or for the benefit of another’, the offence under s. 327 can potentially be committed during the commission of an offence and for the benefit of the thief. On a literal reading of s. 327, a thief who conceals, disguises or sells property that he has just stolen may thereby commit offences under that section because the definition of criminal property applies to the laundering of an offender’s own proceeds of crime as well as those of someone else.

The offence can be committed in a variety of ways. In R v Fazal [2010] 1 WLR 694, D allowed his bank account to be used by a friend to launder money, and it was held that he was guilty of converting criminal property (contrary to s. 327(1)(c)) whenever such monies were deposited in, retained in, or withdrawn from the account.

In R v Pace [2014] EWCA Crim 186 the Court of Appeal rejected the argument that, on a charge of attempting to commit the offence under s. 327(1)(c), it would be sufficient for the prosecution to prove that D merely suspected the property in question to be criminal property. Suspicion of this kind suffices for the substantive offence (as it does for all such offences under ss. 327 to 329) but it cannot, said the Court, suffice for an attempt.

Section 327(2) creates several defences to charges under s. 327.

1.14.18.5 Arrangements in relation to Criminal Property

Offence Arrangements in relation to Criminal Property—Proceeds of Crime Act 2002, s. 328

  • Triable either way

  • 14 years’ imprisonment on indictment and/or a fine

  • Six months’ imprisonment and/or a fine summarily

The Proceeds of Crime Act 2002, s. 328 states:

  1. (1) A person commits an offence if he enters into or becomes concerned in an arrangement which he knows or suspects facilitates (by whatever means) the acquisition, retention, use or control of criminal property by or on behalf of another person.

Keynote

This offence will often be apt for the prosecution of those who launder on behalf of others. This could catch persons who work in financial or credit institutions, accountants etc., who in the course of their work facilitate money laundering by or on behalf of other persons and also family members (husband/wife, partner etc.). The natural and ordinary meaning of s. 328(1) was that the arrangement to which it referred must be one which related to property which was criminal property at the time when the arrangement began to operate on it. To say that it extended to property which was originally legitimate but became criminal only as a result of carrying out the arrangement was to stretch the language of the section beyond its proper limits (R v Geary (Michael) [2010] EWCA Crim 1925).

Section 328 includes the same defences against committing the offence, as are included in s. 327(2).

1.14.18.6 Acquisition, Use and Possession of Criminal Property

Offence Acquisition, Use and Possession of Criminal Property—Proceeds of Crime Act 2002, s. 329

  • Triable either way

  • 14 years’ imprisonment on indictment and/or a fine

  • Six months’ imprisonment and/or a fine summarily

The Proceeds of Crime Act 2002, s. 329 states:

  1. (1) A person commits an offence if he—

    1. (a) acquires criminal property;

    2. (b) uses criminal property;

    3. (c) has possession of criminal property.

Keynote

A thief who uses or retains possession of property that he has just stolen (this being criminal property as defined in s. 340) must therefore be guilty of an offence under s. 329(1)(b) or (c), the maximum penalty for which is twice that for basic theft. It does not follow that such a charge would be appropriate.

This offence is committed where a person knows or suspects that the property which is acquired etc., constitutes or represents his own or another’s benefit from criminal conduct; the same defences against committing the offence apply as in s. 327.

An additional defence exists under s. 329(2)(c) which states that a person will not commit the offence if he acquired or used or had possession of the property for adequate consideration (e.g. being paid a proper market price of £3,000 to fix a roof). The effect of the defence in s. 329(2)(c) is that persons, such as tradesmen, who are paid for ordinary consumable goods and services in money that comes from crime are not under any obligation to question the source of the money. However, the defence is not available to a defendant who provides goods or services knowing or suspecting that those goods or services will help a person to actually carry out criminal conduct.

The coincidence between an offence of handling stolen goods and those described from the Proceeds of Crime Act 2002 might provide a dilemma as to which offence to charge. In such a situation, CPS guidance states that if it is possible to charge money laundering or handling stolen goods then money laundering may be more appropriate if ‘either a defendant has possessed criminal proceeds in large amounts or in lesser amounts, but repeatedly and where assets are laundered for profit’. However, a money laundering charge should only be considered where proceeds are more than de minimis (about minimal things) in any circumstances where the defendant who is charged with the underlying offence has done more than simply consume the proceeds of crime.