Theft and fraud
THEFT
The law relating to theft, fraud and similar offences has now been almost completely codified in the Theft Act 1968 and the Fraud Act 2006.
Theft Act 1968 s.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.
Dishonesty
Dishonesty is a matter of fact to be determined by the jury, who are expected to apply their own contemporary standards of morality. The Law Commission have criticised this: in their Consultation Paper No.155 (1999) they say we live in a heterodox and plural society which juries presumably replicate. To assume there is a single community norm or standard of honesty, discernable by twelve randomly selected people of widely varied class, cultural, educational, racial and religious backgrounds, is unrealistic. It seems inconceivable that different juries do not come to different decisions on essentially similar facts. The jury should not be asked to set a moral standard on which criminal liability depends; rather, the law (informed by moral insights) should say what is forbidden, and the jury should then be asked to apply this law to their finding of fact.
Theft Act 1968 s.2
A person's appropriation of
property belonging to another is not to be regarded as dishonest if he believes
he has the legal right to take it, or if he believes the other would have
consented had he known of the taking and the circumstances, or if he believes
the owner cannot be discovered by taking reasonable steps; but an appropriation
may be dishonest even though the person is willing to pay for what he takes.
R v Feely [1973] 1 All ER 341, CA
D was the manager (but not the
owner) of a betting shop. Needing some money for his own purposes, and strictly
against company rules, he borrowed £30 from the till, intending to replace it
within a few days. The judge said D's conduct was clearly dishonest and his
intention to repay an equivalent sum was irrelevant; the Court of Appeal
quashed D's conviction and said the question of dishonesty should have been
left to the jury.
R v Robinson [1977] Crim LR 173, CA
A man D was owed £7 by another man
X. He waylaid X late one night, and a struggle ensued in which a £5 note fell
from X's pocket, which D seized in part-payment.The Court of Appeal quashed D's
conviction for theft: his honest belief that he was entitled to the money was
sufficient that his actions were not dishonest. He did not also have to show a
belief that he was entitled to obtain the money in this particular way.
Boggeln v Williams [1978] 2 All ER 1061, DC
A man D failed to pay his
electricity bill, and the Electricity Board cut off his supply by removing the
main fuse. D told an employee of the board that he intended to reconnect the
supply, and subsequently did so in such a way that the meter continued to
record the actual amount of electricity used. He was charged with dishonestly
abstracting electricity (s.13 of the 1968 Act), but said he had not considered
his behaviour to be dishonest. The Crown Court (on appeal from the magistrates)
found D not guilty, and the Divisional
Court upheld this decision. The question of
dishonesty was a question of fact, said Lloyd J, and D's own belief that his
conduct was honest tended to support the Crown Court's decision.
R v McIvor [1982] 1 All ER 491, CA
A man D asked his employers to lend
him £300 to pay for a family holiday; when they refused, he took the money from
the safe (to which he had access). D paid back the money ten days later, but he
was detected and charged with theft. The judge told the jury the test of
dishonesty was objective, and that D's own belief was irrelevant; the Court of
Appeal disapproved this statement but applied the proviso to uphold D's
conviction.
R v Ghosh [1982] 2 All ER 689, CA
A locum surgeon D claimed fees not
actually due to him. He was charged with obtaining property by deception (an
earlier form of fraud), and the Court of Appeal said his conduct should be
regarded as dishonest if (i) it would be considered dishonest by ordinary
reasonable and honest people, and (ii) D was aware of that fact. Whether D
himself thought his conduct dishonest, they said, was irrelevant.
R v Small [1987] Crim LR 777, CA
A man D saw an old car apparently
abandoned by the roadside: it had been there for two weeks, with the keys in
the ignition but no petrol in the tank. He took the car away to use for spares,
and was charged with theft. The Court of Appeal quashed his conviction: the Ghosh
test requires not only that ordinary people would think D's conduct dishonest,
but also D's realisation that it was dishonest by the standards of ordinary
people (even if not necessarily by his own).
R v Holden [1991] Crim LR 478, CA
A man D was charged with theft
after taking some scrap tyres from a Kwikfit garage where he sometimes worked.
He said he had seen other workers doing the same, and that he had the
supervisor's permission; the manager said employees were strictly forbidden to
take tyres. Allowing D's appeal against conviction, the Court of Appeal said it
did not matter whether his belief (that he had a right to take the tyres) was
reasonable; if he honestly believed that, his taking would not be dishonest.
The definition of theft does not include the words "without the owner's
consent", though genuine consent will usually negative dishonesty.
An Italian visitor V arrived at
Victoria Station, and went up to a taxi driver and showed him an address. The
taxi driver D said it was a long and expensive journey, though the proper fare
was actually about 50p. V got into the taxi and gave D £1 but kept his wallet
open; D took a further £6 from the wallet without any objection from V. D was
charged with the theft of the £6, and his conviction was upheld by the House of
Lords. Viscount Dilhorne said he was not inclined to read s.1(1) as if the
words "without the owner's consent" were included; by omitting those
words, Parliament had relieved the prosecution of the burden of showing the
absence of consent. If D had genuinely believed V had knowingly agreed to pay
far more than the proper fare, his appropriation would not have been dishonest,
but there was ample evidence here to suggest the contrary.
Appropriation
Appropriation includes taking property, destroying it, using it in an unauthorised way, selling it, offering to sell it, or refusing to return it after having come by it legally.
Theft Act 1968 s.3
Any assumption of the rights of an
owner amounts to an appropriation .... [This includes (where the property has
been acquired without theft) any later assumption of those rights, except by a
bona fide purchaser for value.]
R v McPherson [1973] Crim LR 191, CA
A woman D took two bottles of
whisky from a shelf in a self-service shop and put them into her own shopping
bag intending to steal them. Dismissing her appeal against her conviction for
theft, the Court of Appeal said this was enough to be an appropriation of the
bottles: there had been an overt act inconsistent with the rights of the owner,
and that was enough.
R v Skipp [1975] Crim LR 114, CA
A bogus haulage contractor D
legitimately collected several boxes of produce for delivery, and then diverted
them for his own purpose. He was convicted of theft and appealed on a
technicality on the indictment. Dismissing his appeal, the Court of Appeal said
the appropriation took place when D left his proper route and assumed the
rights of an owner.
R v Monaghan [1979] Crim LR 673, CA
A supermarket cashier D took £3.99
from a customer for a purchase. She put the money in the till but did not ring
it in, and later admitted she had intended to remove it and take it for herself
at a later time. The Court of Appeal upheld her conviction for theft. [This
decision has been criticised as contrary to principle: D did nothing with the
money that she was not authorised to do, and a guilty intention alone should
not be enough.]
Eddy v Niman (1981) 73 Cr App R 237, DC
An intending shoplifter D took
various items from the shelf in a supermarket and put them in a wire basket,
but then changed his mind and left the shop without the goods. He was charged
with theft but the justices dismissed the case and the Divisional Court upheld their decision.
There had been no appropriation: D had done no more than he was authorised to
do, and McPherson was distinguishable.
R v Morris [1983] 3 All ER 288, HL
A man D took goods from the shelves
of a supermarket and replaced the price labels attached to them with other
labels showing a lower price. At the checkout he was asked for and paid the
lower price; he was then arrested and subsequently convicted of theft.
Dismissing D's appeal, the House of Lords said it was enough to prove that a
defendant had assumed any of the rights of an owner. Taking goods from the
shelf was not in itself an appropriation, said Lord Roskill, and Eddy v
Niman was correctly decided on its facts. Nor would switching price labels
be an appropriation if it were done merely as a prank, but a combination of
acts such as occurred in McPherson or in the instant case was an
adverse interference with the owner's rights and that was enough.
Dobson v General Accident Assurance [1989] 3 All ER 927, CA
A householder P who had advertised
some jewellery for sale handed it over in exchange for a stolen (and therefore
worthless) building society cheque; he subsequently claimed under his household
insurance policy for a loss caused by theft. Upholding his claim, the Civil
Division of the Court of Appeal said that although P had handed over the
jewellery voluntarily, he had not intended property to pass except in exchange
for a valid cheque; the jewellery had therefore been appropriated and a theft
had occurred.
R v Gomez [1993] 1 All ER 1, HL
D1 was the assistant manager at a
shop and asked the manager to supply goods in exchange for a stolen cheque
presented by an accomplice D2. The manager (who was not party to the fraud)
agreed, and D1 was subsequently charged with the theft of the goods. Dismissing
his appeal, the House of Lords considered the conflict between the decision in Lawrence Lawrence
R v Adams [1993] Crim LR
72, CA
A motor-cyclist D bought some spare
parts which he was told had come from a crash write-off. Two or three days
later he noticed that some part numbers had been erased, and only then
suspected that the parts might have been stolen. He was acquitted of handling
but convicted of theft on the basis of his later appropriation. The conviction
was quashed on appeal: as a bona fide purchaser for value, he was entitled to
the protection of s.3(2).
R v Stalham [1993] Crim LR 310, CA
A man D was awarded a salary increase
of £4000 per year, but due to a clerical error the whole of this sum was
transferred to his bank account instead of just the first monthly instalment. D
was told of the error and that the excess would be taken back, but allowed his
brother to withdraw and spend most of the money. D was convicted of theft on
the basis of his wrongful retention of property received in error, and his
appeal was dismissed.
R v Hinks [2000] 4 All ER 833, HL
A woman D was the carer of an older
man of low intelligence, and persuaded him to make gifts to her totalling some
£60 000. The jury found as a fact that D had acted dishonestly and convicted
her of theft. The House of Lords affirmed the conviction, and said there can be
an appropriation even where the victim gives the money voluntarily to the
thief.
R v Briggs [2004] 1 Cr App R 451, CA
A woman D appealed successfully
against her conviction for theft. Her aunt and uncle VV wished to buy a smaller
house, and instructed the conveyancers handling the sale of their former house
to transfer nearly £50 000 to D's account so that D could buy the new house for
them. D bought the new house, but registered it in her own name and her
father's rather than in VV's. Allowing D's appeal, Silber J said there is no
appropriation where the defendant induces the owner by fraud to part with the
property.
Property belonging to another
"Property" capable of being stolen includes money and all other property, real or personal, including things in action and other intangible property, but excludes land (except in special cases), flowers, fruit and leaves from growing plants (unless taken for commercial purposes), wild animals not reduced into possession, electricity (though abstracting electricity is a separate offence under s.13), and information.
R v Edwards & Stacey (1877) 13 Cox CC 384, CCA
Three pigs bitten by a mad dog were
shot and buried by their owner. That night, DD dug up the three pigs and sold
them to a butcher. They were convicted of larceny and their appeals were
dismissed: the pigs had not been abandoned and were still the owner's property
even if they were no longer of any value to him.
A student D at Liverpool University
R v Absolom (1983) unreported
A geologist D, using a false name,
tried to sell to a rival oil company the results of his own company's survey,
which had cost some £13m, but was acquitted of forgery at the judge's
direction. Obiter, Judge MacDonald said D had acted in "utmost bad
faith", but information simpliciter (in the form of a copy of the survey
report) was not property capable of being stolen.
Chan Man-sin v Attorney-General [1988] 1 All ER 1, PC (Hong Kong )
An accountant D forged cheques
purporting to be drawn by the companies for which he worked, and deposited them
in his own account. Upholding his conviction for the theft of things in action
(namely, the debts owed by the banks to the companies concerned), the Privy
Council said it was common ground that a debt was property capable of being
stolen, and this was a clear appropriation within the terms of the Act.
R v Kelly (1998) Times 21/5/98, CA
A sculptor D who had stolen some 40
heads, arms, legs, torsos and other body parts from the Royal College of
Surgeons was convicted of theft and imprisoned for nine months. Dismissing his
appeal, Rose LJ acknowledged a long-standing common law rule that there is no
property in a corpse or part thereof (though obiter, an organ removed for the
purpose of transplantation might in future be regarded as property), but said
there is an exception where the body or body part has been altered in some way
for the purpose of medical or scientific examination.
Property is regarded as belonging to any person having possession or control
of it, or having in it any proprietary right or interest; it can therefore
belong to more than one person at a time, and a person can even be guilty of
stealing property belonging (in part) to himself.
Hibbert v McKiernan [1948] 2 KB 142, DC
A man A collected eight lost golf
balls abandoned on a golf course, and was arrested and charged with theft from
the club. His conviction by the justices was affirmed by the Divisional Court : the fact that (as A
knew) the club employed a security guard to stop people taking balls showed
clearly their assertion of ownership.
Williams v Phillips (1957) 41 Cr App R 5, DC
AA were dustmen employed by Bristol
City Council, who took various items from bins (with the intention of selling
them) before taking the rest of the rubbish to the tip. The High Court affirmed
their convictions for larceny (now theft): AA knew quite well that saleable
property was to be handed in and the proceeds divided. The rubbish was still
the householder's property, until it became the property of the Council as soon
as the dustmen arrived.
R v Bonner (1970) 54 Cr App R 257, CA
D and W were partners in a
demolition business, and D took a quantity of metal (belonging to the
partnership) from W's house. The Court of Appeal allowed D's appeal against his
conviction for theft because the verdict was unsafe and unsatisfactory on the
evidence presented, but affirmed the trial judge's direction that a partner has
no right to appropriate partnership property with the intention of permanently
depriving the other partner of his share.
R v Turner (No.2) [1971] 2 All ER 441, CA
D took his car to a garage for
repairs, and when the garage had finished the work the car was parked in the
road outside. D told the garage he would return next day to pay for the repairs
and collect the car, but in fact he took it that evening using his spare set of
keys. He was charged with the theft of the car, and his conviction was upheld
by the Court of Appeal; the car was in the "possession or control" of
the garage, and that made the car their property (as well as D's property) for
the time being. The jury were clearly satisfied as to D's dishonesty, and the
conviction should stand.
R v Woodman [1974] 2 All ER 955, CA
DD took a van to a disused factory
at Wick and loaded it with over a ton of scrap metal, which they took away. On
the evidence, it was clear that the owners of the site were not aware that any
usable scrap remained there, but the Court of Appeal said the scrap was
nonetheless their property and upheld DD's conviction.
R v Philippou (1989) 89 Cr App R 290, CA
DD were the sole directors of a
company, and drew on the company's funds to buy property for their own use. The
Court of Appeal upheld their conviction for theft; their act was clearly
adverse to the rights of the company and so was an appropriation
notwithstanding the "authority" they had given themselves. The fact
that they constituted "the mind of the company" was irrelevant -
unless they really believed they had a right to do as they did, there was a
dishonest appropriation.
Where a person receives property from or on behalf of another, and is under
an obligation to deal with it (or its proceeds) in a particular way, then as
against him that property is regarded as belonging to the other. Similarly,
where a person acquires property by another's mistake and is under an
obligation to restore the property or its value (e.g. by being given too much
change), then it is regarded (as against him) as belonging to the person
entitled to restoration.
R v Hall [1972] 2 All ER 1009, CA
Travel agents DD received money
from customers and then failed to arrange the promised holidays, using the
money for their own purposes. The Court of Appeal quashed DD's conviction for
theft: the jury had not been asked to decide whether DD were under an
obligation to account to the customers for the use of their money, or whether
they had merely failed to deliver the services for which the customers had paid
outright.
R v Gilks [1972] 3 All ER 280, CA
A man D placed several bets with a
bookmaker. At the end of the day D was due to receive about £20 in winnings,
but the bookmaker (mistakenly thinking that in a particular race D had bet on
the winner, when in fact he had bet on a loser) paid him about £120. D realised
the mistake at once, but said nothing and kept the money. He was convicted of
theft, the jury clearly disbelieving his claim that he did not think he was
acting dishonestly in dealing thus with a bookmaker, and his appeal was
dismissed.
DPP v Huskinson [1988] Crim LR 620, DC
D received a housing benefit cheque
from the DHSS, intended to help with his rent payments, but spent the money on
himself instead and was charged with theft. Affirming his acquittal, the Divisional Court
said D was under no legal obligation to use that money in any particular way.
R v Wain [1995] 2 Cr App R 660, CA
D raised nearly £3000 from various
events for the ITV Telethon. He paid the money into his personal bank account
and drew on that a cheque in favour of the Telethon, but this and subsequent
cheques bounced. D was convicted of theft, and the Court of Appeal affirmed his
conviction. McGowan LJ said D had received money on behalf of the charity and
had an obligation to hand over the equivalent sum, if not actually the same
notes and coins. Instead, he had appropriated the money by using it for his own
purposes.
R v Webster [2006] All ER (D) 150 (Nov)
An army officer eligible for a
service medal was mistakenly sent two identical medals instead of one. He gave
the second medal to the defendant, who sold it via the Internet. The defendant
was convicted of theft, and his convictionn was upheld on appeal: the medal had
been sent by mistake and was therefore still the property of the Secretary of
State.
Intention to deprive
The mens rea of theft is an ulterior intention permanently to deprive the rightful owner of the property taken; this is a specific intent, and mere recklessness is not enough.
Theft Act 1968 s.6(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
regardless of the owner'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.
R v Warner (1970) 55 Cr App R 93, CA
A shop assistant D saw V's box of
tools standing outside V's workshop, and took it and hid it in his own shop; he
was charged with theft. D claimed his act was retaliation for V's lack of
cooperation over access to a shared lane, and that he would have returned the
tools after an hour or so. Quashing D's conviction, the Court of Appeal said
the Chairman of Quarter Sessions had misdirected the jury, and had not
sufficiently stressed the need for the prosecution to show an intention
permanently to deprive.
R v Easom [1971] 2 All ER 945, CA
D went into a cinema and sat down
next to C; he picked up C's handbag and rummaged through it looking for money,
but not finding any he replaced the bag. C was actually a plain clothes
policewoman, and D was arrested and charged with the theft of the bag and its
contents. His conviction was quashed by the Court of Appeal, who said he had no
intention of permanently depriving C of any of the property he actually took; a
charge of attempted theft would have been more appropriate.
R v Lloyd [1985] 2 All ER 661, CA
A cinema projectionist D borrowed
films without authority from his place of work so that friends could make
pirate copies. D and the others were charged with conspiracy to steal, but
their appeals against conviction were allowed by the Court of Appeal. They did
not intend to deprive the owners of the films for more than a few hours, and
when the films were returned they would still be just as usable as they were
before.
R v Velumyl [1989] Crim LR 299, CA
A man D borrowed £1000 from the
office safe without authority, intending to return the same amount when a
friend repaid a debt. He was convicted of theft and his appeal failed: he would
not have returned the same notes that he had taken, so he had permanently
deprived the owners of that property even though he might have replaced it with
other property of equal value.
DPP v Lavender [1994] Crim LR 297, DC
A man D took two doors from a
council house and used them to replace damaged doors in his girlfriend's house,
owned by the same council. The justices dismissed a charge of theft since he
had not shown any intention permanently to deprive the council of their
property. On appeal by the Crown, the Divisional
Court remitted the case with a direction to
convict: under the first limb of s.6(1) D had treated the doors as his own to
dispose of regardless of the owner's rights, and that was enough.
R v Fernandez [1996] 1 Cr App R 175, CA
A man D involved in a mortgage
fraud appealed unsuccessfully against his conviction for theft. The Court of
Appeal said the critical notion in s.6 is the defendant's intention to treat
the thing as his own regardless of the owner's rights: the second half of
s.6(1), and s.6(2), are merely specific illustrations of this principle.
R v Marshall
[1998] 2 Cr App R 282, CA
DD were convicted of theft by
obtaining Underground tickets from travellers who had passed through the ticket
barriers and reselling them to other travellers. Their appeal failed: they had
treated the tickets as their own to dispose of regardless of the company's
rights, and although the used tickets might eventually find their way back into
the company's possession there was "an intention permanently to
deprive" under s.6(1). Obiter, this decision might have implications for
ordinary motorists who pass on unexpired car park tickets.
Removal from public places
The 1968 Act makes it an offence unlawfully to remove from a building open for viewing the whole or part of any article displayed or kept for public display. The collection may be permanent or temporary, but does not include sales displays. This provision is designed to cope with a person who takes a portrait from an art gallery, or the coronation stone from Westminster Abbey, and no intention permanently to deprive is required.Taking a conveyance
A person who, without the consent of the owner or other lawful authority, takes any conveyance for his own or another's use, or knowing that it has been so taken drives it or allows himself to be carried in or on it, is guilty of an separate offence without proof of an intention permanently to deprive.A conveyance includes anything constructed or adapted for the carriage of a person or persons by land, water or air, but not if it is under the control of a person not in or on it. The definition therefore includes motor cars (the commonest case), boats of all kinds, aeroplanes, and pedal cycles; it does not include horses (which are not "made or adapted", unless the saddle can be regarded as an adaptation) nor prams (which are controlled by a person outside).
R v Stokes [1982] Crim LR 695, CA
As a practical joke, D pushed P's
car around the corner so that P would think it had been stolen. Quashing his
conviction for taking a conveyance, the Court of Appeal said "use"
meant "use as a conveyance", and D had not used the car in that
sense.
R v Bow (1976) 64 Cr App R 54, CA
D and his brother, in the brother's
car, were stopped in a narrow road by gamekeepers who suspected them of
poaching. To stop them driving away before the police arrived, the gamekeepers
parked their Land Rover so that it blocked the road. D got into the Land Rover,
let off the brake, and coasted down the road for about 200 yards so that his
brother could get past. The Court of Appeal upheld his conviction for taking a
conveyance; by allowing himself to be carried along in the vehicle he had used
it as a conveyance.
The Act provides a defence for an honest belief that D has lawful authority
or that the owner would have consented had he known of the taking and the
circumstances.
R v Peart [1970] 2 All ER 823, CA
D borrowed a van by telling its
owner he wanted it to go to Alnwick and would return it by 7.30 pm. He used it
for a journey to Burnley and was found there
at 9.00 pm. The Court of Appeal quashed his conviction for taking a conveyance,
saying the owner had given his consent and the deception as to the purpose of
the request was immaterial. [This decision has been doubted by some writers.]
Whittaker v Campbell
[1983] 3 All ER 582, DC
Two brothers AA hired a van by
producing a driving licence belonging to another; in fact neither of them held
a full licence. They were convicted of taking a conveyance without the consent
of the owner, and appealed by way of case stated. Applying a dictum of Sachs LJ
in Peart and allowing the appeal, Robert Goff LJ said it should not be assumed
that "consent" necessarily has the same meaning throughout the
criminal law. Section 12 was clearly directed against joyriding, not against
fraud, and although a prosecution might possibly lie for obtaining services by
deception, AA were not guilty of the offence with which they were charged.
Where a vehicle is taken without the owner's consent, and is then driven
dangerously or is involved in an accident causing injury to any person or
damage to any property, the driver and any passenger is guilty of the more
serious offence of aggravated vehicle-taking.BURGLARY
A person is guilty of burglary if he enters a building (or part of a building) as a trespasser with intent to steal, or to inflict grievous bodily harm, or to do unlawful damage to the building or anything in it; or alternatively, if having entered the building (or part of a building) as a trespasser he does steal or inflicts grievous bodily harm, no matter what his intentions at the time of entry. There are thus two quite distinct forms of burglary, one requiring intention at the time of entry but not necessarily completion, and the other requiring completion but not necessarily the original intention."Building" expressly includes any inhabited vehicle or vessel, whether or not the inhabitant is present at the time, but does not appear to include temporary structures such as tents. ( This is a matter of speculation, however: the old common law certainly excluded tents, but "building" is an ordinary English word whose meaning would be a matter for the jury or magistrates, subject to the express inclusions above.)
R v Walkington [1979] 2 All ER 716, CA
A man D was seen in a department
store shortly before closing time; he went behind one of the counters and
opened the till, looking for money. He was convicted of burglary and his appeal
failed: it was a matter of fact for the jury whether the area behind the
counter was "part of a building" where D (like other members of the
public) was not permitted to go.
The defendant must know at the time of the offence that he is trespassing,
and must intend to do so: falling accidentally through a glass roof is not
"entry as a trespasser" whatever D's other intentions. The entry must
be as a trespasser: if D enters by consent and becomes a trespasser only
because that consent is withdrawn, he has not committed burglary whatever he
may do.
R v Brown [1985] Crim LR 212, CA
D was arrested while standing on
the pavement outside a shop, with his upper body and arms through a broken
window as he rummaged through the goods inside. His conviction for burglary was
upheld by the Court of Appeal, who said this was sufficient entry as long as
the ulterior intent was present.
R v Ryan [1996] Crim LR 320, CA
D was found trapped in a window
frame, with his head and one arm inside the house and the rest of him outside.
His appeal against his conviction for burglary was dismissed; even though he
could not in fact steal anything because of being stuck, his entry was
sufficient.
R v Jones & Smith [1976] 3 All ER 54, CA
D2 and his friend D1 went into D2's
father's house one night and stole two television sets. D2's father said his
son was welcome in the house any time, but both D2 and D1 were charged with
burglary. The Court of Appeal affirmed their conviction; the jury were entitled
to infer that the father would not have consented to D2's entry for the purpose
of stealing. [On this basis it would appear that every shoplifter is ipso facto
a burglar, and the precedent should perhaps be treated with caution. However,
it means that a person who gains access to a house by pretending to be the gas
inspector is a trespasser if he then uses the opportunity to steal.]
A conditional intention - to steal if anything is found worth stealing - is
enough to serve as the ulterior intention for burglary.
R v Collins [1972] 2 All ER 1105, CA
In the early hours of the morning,
a young man D decided he was going to have sex with a certain young woman V
whom he knew slightly. He went to her home, where he stripped naked in the
garden and then climbed a ladder to V's bedroom window. As he was about to
climb through the window, V woke and saw his silhouette; thinking it was her
regular boyfriend, she invited him into her bed and they began to have sex.
After some time she realised her mistake and told D to leave, which he did, but
he was charged with burglary with intent to rape (which was then a fourth
possible ulterior intent). Quashing his conviction on the grounds that he had
been invited in and had thus not entered "as a trespasser", the Court
of Appeal nevertheless had no doubt that his conditional intention was an
intention.
R v Walkington [1979] 2 All ER 716, CA
A man D was seen in a department
store shortly before closing time; he went behind one of the counters and
opened the till, looking for money. He was convicted of burglary and his appeal
failed: when a person enters as a trespasser looking for something to steal,
said Geoffrey Lane LJ, it is immaterial that there may be nothing there worth
stealing.
Attorney-General's Reference (Nos.1 & 2 of 1979) [1979]
3 All ER 143, CA
The Court of Appeal declared that a
person who enters a house intending to steal only if he finds money (or other
valuable items) in the house can be convicted of burglary contrary to s.9(1) of
the Theft Act 1968 notwithstanding that his intention to steal is
conditional.
A person is guilty of aggravated burglary if he commits
burglary and has with him at the time any firearm or imitation firearm, or any
explosive, or any weapon of offence, that is, any article made or adapted or
intended for causing injury to or incapacitating any person.ROBBERY
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 or threatens force on any person.
R v Mason (1820) 168 ER 876, KB
A man D seized a gold watch from
V's pocket, and pulled hard enough to break a security chain going around V's
neck. Park J said this force was sufficient to amount to robbery rather than
larceny at common law, and the judges of the King's Bench unanimously agreed.
R v Dawson
& James (1976) 64 Cr App R 170, CA
DD approached V, and two of them
nudged him from side to side while the third took V's wallet from his pocket.
The Court of Appeal affirmed their conviction for robbery; the amount of force
used or threatened may have been small, and it is up to the jury to decide
whether it was enough to constitute robbery.
R v Hale (1978) 68 Cr App R 415, CA
DD entered V's house wearing masks.
D1 put his hand over V's mouth while D2 went upstairs for V's jewellery. Before
they left, they tied up V and threatened to harm her child if she phoned the
police. Dismissing their appeal against conviction, the Court of Appeal said
the theft was a continuing act, and did not come to an end once the jewellery
had been seized; the jury were entitled to find that DD had used force at the
time of the theft in order to enable them to complete the theft.
BLACKMAIL
A person is guilty of blackmail under s.21 of the 1968 Act if, with a view to gain for himself or anyone, or loss for another, he makes any unwarranted demand with menaces. The words "gain" and "loss" refer only to money or other tangible property.
R v Bevans (1987) 87 Cr App R 64, CA
A man D was in severe pain from an
old war injury, and called a doctor at 4.00 am. When the doctor arrived at D's
home, D pulled a gun from his pocket and threatened to shoot the doctor unless
he gave D an injection of morphine to reduce the pain. The doctor had no
morphine but gave D an injection of pethidine; D then calmed down and
apologised for his behaviour. Upholding D's conviction for blackmail, Watkins
LJ said his demand for morphine was a demand for property with a view to gain
for himself, the gain being relief from pain.
R v Christie (1990) 12 Cr App R (S) 540, CA
A man D wrote to another man V
(whom he did not know but whose photograph he had seen in the newspaper),
threatening that unless V paid him £5000 he would expose V as a homosexual
(which in fact V was not). D was convicted of blackmail and sentenced to two
years' imprisonment.
There must be a demand, however, and accepting an unsolicited bribe is not
blackmail. A demand may be made even though the intended recipient does not
receive it, and may be made by implication rather than directly.
R v Robinson (1796) 168 ER 475, KB
A man D wrote an unsigned letter to
V, indicating that he had evidence of V's responsibility for the death of a
third man, but inviting him to contribute to the support of a poor family by
leaving £10 in an envelope to be collected from a certain place. Upholding D's
conviction for blackmail, the court said the words "Remember, sir, that I
am only making an appeal to your benevolence" and similar were capable of
being a demand in the circumstances, and the jury were entitled to treat them
as such.
R v Clear [1968] 1 All ER 74, CA
A lorry driver D had his lorry and
its contents stolen, and the owners XX of the contents brought legal
proceedings against D's employers EE for the value of the contents. D then went
to EE and demanded money not to give evidence (contradicting his original
report) tending to make EE vicariously liable for the loss. EE reported this to
the police, and D was charged with demanding money with menaces, contrary to
the Larceny Act 1916. Upholding his conviction, the Court of Appeal said the menaces
must be such as to make it likely that a person of ordinary firmness would
accede to the demand; it is not necessary that the actual victim (who may be
particularly strong-minded) was himself alarmed.
Treacy v DPP [1971] 1 All ER 110, HL
A man A wrote and posted a letter
addressed to X, demanding money and threatening to tell X's husband of her
adultery if she did not pay. A was convicted of blackmail, and the House of
Lords affirmed his conviction even though X had received the letter in Germany (i.e.
outside the court's jurisdiction). In the ordinary meaning of the language a
person "makes a demand" as soon as he speaks or writes the relevant
words; there is no need to wait for any particular consequence.
R v Garwood [1987] 1 All ER 1032, CA
D was charged with blackmail,
having demanded and obtained money from a youth S. The jury found as a fact
that S was unusually timid and could have felt threatened by words or conduct
that would not have seemed threatening to others; following further direction
by the Recorder they returned a verdict of guilty. The Court of Appeal upheld
this verdict: Lord Lane CJ said that where the threats in fact affected the
mind of the victim, although they would not have affected the mind of a person
of normal stability, the existence of menaces is proved providing D was aware
of the likely effect of his actions on the victim.
R v Harry [1974] Crim LR 32, Petre J
A student D sent letters to 115
local shopkeepers asking them to buy rag week immunity posters (costing up to
£5) in aid of charity; the object of the poster, he said, was "to protect
you from any rag activities that might cause you inconvenience". Six
shopkeepers complained, and D was charged with blackmail, but was acquitted on
the judge's direction because the threat was insufficient to constitute a
menace.
Any demand with menaces is deemed to be unwarranted unless D believes that
he has reasonable grounds for making the demand and that the use of menaces is
a proper means of enforcement. Some threats or menaces are perfectly proper, as
when the Electricity Board threaten to cut off the supply unless a bill is
paid.
Black v Carmichael [1992] SC 709, HCJ (Scotland )
In an action brought by a motorist
whose car (parked without permission on private land) had been clamped and a
fee charged for its release, the High Court of Justiciary decided that wheel
clamping carried out on behalf of a private landowner amounted to extortion
(the equivalent of blackmail) and theft. The court accepted that the owner of
the land had a civil right to seek compensation from those who parked on his
land, but said that he could not lawfully do so by seizing the property of the
trespasser.
Arthur v Anker [1996] 3 All ER 783, CA
PP parked their car on private
land, having seen a notice that unauthorised vehicles would be clamped and
released only on payment of £40. DD clamped PP's car, and PP (having paid under
protest) sed for compensation and aggravated damages. Judge Thompson QC
dismissed PP's claim, and his decision was upheld by the Court of Appeal.
Bingham MR said the defence of volenti applied to the civil claim: PP could be
taken to have consented to the effect of the notice, so long as the release fee
was reasonable, the vehicle was released without delay when the fee was paid,
and there were means by which the motorist could communicate his offer of
payment. As to the allegation of blackmail, it followed that DD had reasonable
grounds for demanding payment and were entitled to reinforce that demand by
keeping the car clamped until the fee was paid. Black v Carmichael was
distinguishable as a Scottish case based on a different law of theft.
FRAUD
This is a new offence, and replaces several earlier offences under the Theft Act 1968 and the Theft Act 1978. The cases which follow (most of them based on the old law) must therefore be treated with great caution.
Fraud Act 2006 s.2
(1) A person is [guilty of fraud by
false representation] if he (a) dishonestly makes a false representation, and
(b) intends, by making the representation to make a gain for himself or
another, or to cause loss to another or to expose another to a risk of loss.
(2) A representation is false if (a) it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.
(2) A representation is false if (a) it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.
Fraud Act 2006 s.3
A person is [guilty of fraud by
failing to disclose information] if he (a) dishonestly fails to disclose to
another person information which he is under a legal duty to disclose, and (b)
intends, by failing to disclose the information, to make a gain for himself or
another, or to cause loss to another or to expose another to a risk of loss.
Fraud Act 2006 s.4
(1) A person is [guilty of fraud by
abuse of position] if he (a) occupies a position in which he is expected to
safeguard, or not to act against, the financial interests of another person,
(b) dishonestly abuses that position, and (c) intends, by means of the abuse of
that position to make a gain for himself or another, or to cause loss to
another or to expose another to a risk of loss.
Fraud Act 2006 s.5
(2) "Gain" and
"loss" (a) extend only to gain or loss in money or other property;
[but] (b) include any such gain or loss whether temporary or permanent ...
(3) "Gain" includes a gain by keeping what one has, as well as a gain by getting what one does not have.
(4) "Loss" includes a loss by not getting what one might get, as well as a loss by parting with what one has.
(3) "Gain" includes a gain by keeping what one has, as well as a gain by getting what one does not have.
(4) "Loss" includes a loss by not getting what one might get, as well as a loss by parting with what one has.
Davies v Flackett [1972] Crim LR 708, DC
D drove out of a pay-as-you-leave
car park while another person held up the barrier, and was charged with
obtaining a pecuniary advantage by deception. The justices acquitted, and the
High Court dismissed the prosecutor's appeal: it was doubtful whether a
deception was even possible, they said, unless there was a human mind there to
be deceived.
R v Rashid [1977] 2 All ER 237, CA
A British Rail steward D was caught
taking bread and tomatoes onto a train, allegedly to make sandwiches and sell
them for his own profit instead of selling the sandwiches provided by British
Rail. He was convicted of going equipped to cheat, intending to obtain money by
deception, but his conviction was quashed on appeal. The judge had not directed
the jury on the need to show prospective customers would have been influenced
by the deception, and bought D's sandwiches because they thought they were
official BR sandwiches.
R v Doukas [1978] 1 All ER 1061, CA
A waiter D took his own wine to the
restaurant where he worked, and was charged with going equipped to cheat. The
jury found as a fact that customers would not have bought the wine had they not
been deceived into thinking it came from the restaurant's cellar, and D's
conviction was upheld.
R v Holt & Lee [1981] 2 All ER 854, CA
D ate a meal in a restaurant and
falsely claimed to have paid "the other waitress"; his conviction for
evading liability by deception was upheld on appeal.
R v Gilmartin [1983] 1 All ER 829, CA
A shopkeeper D, whose bank account
was heavily overdrawn, paid several suppliers with postdated cheques, which
were refused when in due course they were presented. His conviction for
obtaining property and evading payment by deception was affirmed: a person who
presents a cheque thereby (without more) represents that it will be honoured
when properly presented.
R v King & Stockwell [1987] 1 All ER 547, CA
DD claimed (falsely) to be tree
surgeons, and told V the trees in her garden needed certain treatment. With her
agreement, they did the work they claimed was necessary, and she paid them
about £500 for the work done. DD were convicted of obtaining money by
deception, and their conviction was upheld; the money was obtained for services
actually performed, but the deception was an operative cause of the payment and
that was sufficient.
R v Firth (1990) 91 Cr App R 217, CA
A consultant gynaecologist admitted
several private patients to a NHS hospital. He did not inform the hospital that
these were private patients, so neither he nor they were charged for their
treatment. His conviction for evading liability by deception was upheld on
appeal: the offence (of dishonestly obtaining an exemption from or abatement of
liability to make payment) under s.2(1)(c) does not require a pre-existing
liability, and can be committed by deliberate omission as well as by a positive
act.
Obtaining services dishonestly
Fraud Act 2006 s.11
(1) A person is guilty of
[obtaining services dishonestly] if he obtains services for himself or another
(a) by a dishonest act, and (b) in breach of subsection (2).
(2) A person obtains services in breach of this subsection if (a) they are made available on the basis that payment has been, is being or will be made for or in respect of them, (b) he obtains them without any payment having been made for or in respect of them or without payment having been made in full, and (c) when he obtains them, he knows that they are being made available on the basis described in paragraph (a), or that they might be, but intends that payment will not be made, or will not be made in full.
(2) A person obtains services in breach of this subsection if (a) they are made available on the basis that payment has been, is being or will be made for or in respect of them, (b) he obtains them without any payment having been made for or in respect of them or without payment having been made in full, and (c) when he obtains them, he knows that they are being made available on the basis described in paragraph (a), or that they might be, but intends that payment will not be made, or will not be made in full.
R v Widdowson [1986] Crim LR 233, CA
A man D gave a false name on a hire
purchase application form, and was convicted of attempting to obtain services
by deception. The Court of Appeal allowed his appeal on the grounds that his
completion of the form was "merely preparatory", but agreed obiter
that had the car actually been supplied on hire-purchase terms, that would have
been a supply of services.
R v Bushell (2006) unreported
A man invited a prostitute to his
home, promising to pay her £120 per hour; after six hours he told her
(truthfully) that he was unable to pay. He had known this all along, and he
pled guilty to obtaining sexual services by deception.
Making off without payment
Section 3 of the Theft Act 1978 (which is not affected by the Fraud Act 2006) creates the offence of making off without payment, committed by a person who, knowing that payment on the spot is required or expected for goods supplied or services done, dishonestly makes off without having paid and with intent to avoid payment. Making-off may be stealthy or open, but if the defendant openly refuses to pay for services he believes were unsatisfactory, there is arguably no dishonesty and so no offence.The goods or services must have been supplied lawfully, and must be such that payment is legally enforceable. No offence under this section would be committed by a 14-year-old who left a pub without paying for his beer (because it would have been supplied contrary to law), nor by a man who ran off from a brothel, because the wages of sin are not legally enforceable (the contract being void as contrary to public policy). In Bushell above, the CPS said the defendant's promise was to pay for the woman's time - whatever else was agreed was private between the parties.
R v Brooks & Brooks (1983) 76 Cr App R 66, CA
A father and daughter DD and
another man S had a meal in a restaurant. At the end of the meal S and the
daughter left hurriedly (but separately); the father then left but was stopped
and was unable to pay. The father and daughter were charged with dishonestly
making off without paying; the daughter claimed S had offered to treat them,
but both were convicted. Affirming the father's conviction but quashing the
daughter's, the Court of Appeal said the jury should have been invited to
consider her explanation (which they might have believed) in determining
whether she had a dishonest intent.
R v Allen [1985] 2 All ER 641, HL
D left a hotel without settling his
bill. The trial judge said s.3 required only an intent to avoid payment at the
proper time, but D's subsequent conviction was quashed by the Court of Appeal.
P's appeal to the House of Lords was dismissed: the words "with intent to
avoid payment" must imply an intent to default permanently, otherwise they
would be redundant.
Troughton v Metropolitan Police Commissioner [1987] Crim LR
138, DC
In a drunken state, A took a taxi
and asked the driver to take him home. During the journey an argument arose,
and the driver drove to a police station to get help. From there, D made off
without paying. His conviction under s.3 was quashed by the Divisional Court : the driver had not
completed the agreed journey, and so no fare had become legally due.
R v Aziz [1993] Crim LR 708, CA
D and another man got into a taxi
and asked the driver to take them to a certain club. When they arrived, they
refused to pay the fare demanded, and the driver started to drive back to their
starting point. On the way back, the other man started to damage the taxi and
the driver stopped, whereupon both men ran away. D was caught, and appealed
against his conviction for "making off" on the grounds that payment
was not expected at the place from which he had run. The Court of Appeal
dismissed his appeal, saying "on the spot" did not refer to any
specific place.
R v Vincent [2001] 2 Cr App R 150, CA
A customer told the proprietors of
two hotels (falsely) that he was waiting for some money due to him, and the
proprietors agreed to wait for payment. The customer then left each hotel
without paying (and apparently intending never to pay). His conviction for making
off without payment was quashed: Pill LJ said the proprietors' agreement, even
though it had been obtained by fraud, defeated the usual expectation of payment
on the spot. Obiter, the customer could have been charged with
obtaining services by deception had he continued to stay at the hotel [and
presumably with evading liability by deception in any event].
HANDLING STOLEN GOODS
A person handles stolen goods under s.22 of the 1968 Act if, otherwise than in the course of the stealing, and knowing or believing the goods to be stolen, he dishonestly receives them, 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. "Stolen goods" includes the proceeds of blackmail or deception as well as of theft, and it is enough that the goods "represent" the goods stolen, being (for example) the proceeds of their sale.The thief himself does not commit this offence unless he is involved in the retention or disposal of the goods by or for the benefit of another person, and this can lead to difficulties when D is found in possession of stolen goods. Given the necessary intention, he is almost certainly guilty of either theft or handling, but the prosecution may not be able to prove either beyond reasonable doubt. In recent cases, however, the courts seem to have found a way around this problem even if its logic is open to question.
Attorney-General v Yip Kai-foon [1988] 1 All ER 153, PC (Hong Kong )
Following a raid on a jeweller's
shop, D was charged with robbery and handling: the judge told the jury that if
they were sure D had committed one offence or the other, they should convict of
whichever seemed the more probable. D's conviction for handling was quashed on
appeal, but the Privy Council applied the proviso and restored the conviction.
The proper approach, said Lord Ackner, was for the jury to consider first
whether they were satisfied beyond reasonable doubt that the accused was guilty
of the first offence. If so they should convict of that; otherwise they should
then proceed to consider whether he was guilty of the alternative offence. It
was not necessary for the prosecution to satisfy them beyond reasonable doubt
that D was not the thief: that was the initial presumption of innocence, upheld
by their decision on the first count.
R v Foreman [1991] Crim LR 702, CA
D was charged with both robbery and
handling, and at his trial was acquitted of the first and convicted of the
second. Applying the decision in Yip Kai-foon and dismissing his
appeal, the Court of Appeal said that D's acquittal on the robbery charge was
enough to show "otherwise than in the course of theft" and entitled
the jury to convict on the handling charge if they were satisfied as to the remaining
elements. The logic is open to some doubt: it may be that the jury were almost
(but not quite) sure that D was himself the robber, and so are convicting on
the charge they think less likely.
Haughton v Smith [1973] 3 All ER 1109, HL
D was caught in possession of
stolen goods which (unknown to him) had been recovered by the police but then
left as a trap. The House of Lords said he could not be guilty of handling:
goods cease to be stolen when they are lawfully recovered.
R v Hall (1985) 81 Cr App R 260, CA
The Court of Appeal upheld D's
conviction for handling stolen antiques. Boreham J said that only knowledge or
belief that the goods are stolen will do; mere suspicion is not enough. This
might mean that D had been told by the thief that the goods were stolen, or
that without being absolutely certain he had come to that inescapable
conclusion, or even that he refused to accept what logic told him was obvious.
But what was not enough was mere suspicion that the goods might or might not be
stolen.
R v McDonald (1980) 70 Cr App R 288, CA
D was charged with handling a
stolen television; he had bought it from a man in a betting shop for about a
third of its value, and he admitted he thought it was probably stolen, though
in fact there was no other evidence of that. Affirming his conviction, Lawton
LJ said the jury were entitled to infer both the fact of its being stolen and
D's awareness of that from the circumstances in which it was obtained, just as
in the hypothetical case of a publican who buys a case of whisky from a lorry
driver.
GOING EQUIPPED
Section 25 of the 1968 Act makes it an offence for any person not at his place of abode to have with him any article for use in the course of or in connection with any burglary, theft, taking of a conveyance, or cheat. The intention that the article should be used for a criminal purpose is essential, as is illustrated by the otherwise innocent objects that feature in the cases below.
Minor v DPP (1987) 86 Cr App R 378, DC
D and others were found in
possession of a rubber tube and two empty petrol cans, having forced off the
petrol tank of a car apparently with the intention of stealing petrol. The High
Court upheld their conviction by the magistrates: although D1 had had these
items in his possession for only a short time, the performance of the crime had
commenced and that was enough.
R v Ellames [1974] 3 All ER 130, CA
D and others were charged under
s.28 with being in possession of a sawn off shotgun, a wig, three woollen hats,
two masks, a pair of goggles, a boiler suit, a motor vehicle, two Jif lemons
and a quantity of ammonia, gloves and shotgun cartridges. Allowing D's appeal
against conviction, Browne J said it was not enough that D had been in
possession of these articles after the robbery: the prosecution must show he
had them with the intention that they should be used for theft &c, and that
they had not done. Obiter, there was no need to prove that D intended to use
them himself, nor that he intended them to be used in any particular theft, as long
as there was a general intention that they should be used in some theft by
someone.
R v Rashid [1977] 2 All ER 237, CA
A railway steward D about to go on
duty was found in possession of bread and tomatoes, and was charged with going
equipped to cheat. It was alleged (probably rightly) that he had intended to
make his own sandwiches and pocket the proceeds, rather than sell the
"official" railway sandwiches, and he was convicted. His conviction
was quashed on appeal because it had not been shown that customers would have
been deceived (and bought D's sandwiches because of the deception), but there
was no doubt in anyone's mind that bread and tomatoes could be the subject of a
s.25 charge.
R v Goodwin [1996] Crim LR 262, CA
D was convicted of going equipped
to steal, on evidence that he had played slot machines using low-value foreign
coins of the same dimensions as 50p pieces. The Court of Appeal upheld his
conviction: had the machines paid out, he would presumably have appropriated
the prize money, and that would have been theft.
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