-
The word “force” is an ordinary word and it is for the jury to decide what constitutes force. This issue was raised in Dawson. The force used does not have to be directed against the person – it could be against property Clouden – even the retching of a bag was enough.
- A threat of force must be a threat of then and there subjecting the victim (or someone else) to force. A threat of future violence is not sufficient. There is no need for the victim to be frightened or even be aware of the threat.
Immediately before or at the time of stealing
-
If property is taken and then force is used to escape, it can be classed as a continuing act Hale
And for the purposes of stealing (in order to steal – rather than for another purpose)
- The force (or threat of force) must relate to the theft
Mens Rea
- Robbery requires the mens rea for theft
- D is dishonest
- D intends to deprive V of the property
and in addition
- That the defendant intentionally or recklessly used or threatened to use force
- D must intend (or be reckless) to use (or threaten to use) force
Burglary
Section 9(1)(a) “A person is guilty of burglary if he enters a building or part of a building as a trespasser, with the intent to steal, to inflict grievous bodily harm or to do unlawful damage to the building or anything inside it”
Section 9(1)(b) states that burglary will also be committed when a person steals or inflicts grievous bodily harm on another, after he has entered as a trespasser, or attempts to do either of these things.
- Section (a) applies to Theft, Criminal Damage and GBH
- Section (b) only applies to Theft and GBH
The Actus Reus
The defendant must:
- Enter
- A building (or part of one)
- As a trespasser
There is no need to have actually carried out any of the 3 offences for the offence in section (a) – the intention is what is important, but for section (b) one of the 2 offences must be committed or there must be attempt.
The Mens Rea
-
The burglar must know that he is a trespasser or be reckless as regards this fact and
- Then must have the intention to commit one of the offences specified (theft, criminal damage or GBH)
Actus Reus
Meaning of Entry
“effective and substantial entry”
R v Collins; Brown; Ryan
Building or Part of a Building
The term building is not defined in the Act but has been interpreted to include a vessel or vehicle which is inhabited (such as a house-boat or caravan).
Any part of a building
Walkington; Norfolk Constabulary v Seeings and Gould; R v B and S Leathley
As a Trespasser
For the purpose of burglary trespass means entry without permission (or a legal right). The defendant must knowingly enter as a trespasser (or do so negligently or recklessly). The trespass must also be voluntary – so if someone is tripped or is dragged into the building it is not trespass.
Exceeding permission – Jones and smith
Criminal Damage
There are 4 offences of criminal damage contained in the Criminal Damage Act 1971
Section 1(1) often referred to as Simple Criminal Damage
Section 1(2) Aggravated Criminal Damage
Section 1(3) Arson
Aggravated Arson
Simple Criminal Damage
“a person who without lawful excuse destroys or damages property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence”.
Actus Reus
D must:
- Destroy or damage
- Property
- Belonging to another
- Without Lawful Excuse
Mens Rea
- Direct Intention or recklessly
Actus Reus
Can be committed by act or omission Miller
Meaning of damages/destroy
Damages:
-
Affects the usefulness or integrity of property Morphitis v Salmon; Samuels v Stubbs; R v Fiak
-
Cost/expense to repair A (a juvenile)
-
Time/effort to repair Hardman v CC of Avon & Somerset Constabulary
-
Matter of fact and degree Roe v Kingerlee
Destroys:
Destroys is a stronger word than damage
Destroys means that property has been rendered useless, even though it might not be completely destroyed
Property
Property is interpreted by section 10(1) of the Act.
- Real and Personal Property
- Tangible - Capable of touch
- Includes plants which are possessed
- BUT NOT plants or animals which are wild.
10. (1) In this Act “property” means property of a tangible nature, whether real or personal, including money and—
(a) including wild creatures which have been tamed or are ordinarily kept in captivity, and any other wild creatures or their carcasses if, but only if, they have been reduced into possession which has not been lost or abandoned or are in the course of being reduced into possession; but
(b) not including mushrooms growing wild on any land or flowers, fruit or foliage of a plant growing wild on any land.
Belonging to another
10. (2) Property shall be treated for the purposes of this Act as belonging to any person -
(a) having the custody or control of it;
(b) having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest); or
(c) having a charge on it.
The term ‘belonging to another’ has a similar definition to section 4 Theft Act 1968 which says:
“Property shall be regarded as belonging to any person having possession or control of it, or having a proprietary right or interest.”
This brings concepts of civil law into the determination of rights in property
R v Smith
Mens Rea
The mens rea for criminal damage is:
Or
Intention - The defendant must intend (aim or purpose) to destroy or damage property belonging to another
“It is not enough that D intended to do the act which caused the damage unless he intended to cause that damage; proof that D intended to throw a stone is not proof that he intended to break a window. Nor is it enough that D intends to damage property if he does not intended to damage [the] property of another.”
R .v. Pembliton
Smith & Hogan’s Criminal Law, 11th Edition, page 879
Since R .v. R & G, abolished the Caldwell objective test there has only been one type of Recklessness in Criminal Damage - Subjective Recklessness
The Defendant is reckless if:
He is aware of a risk
and
in the circumstances known to him it is unreasonable to take the risk.
Elliott v C; R v G; R v Stephenson; R v Cooper; R v Castle;
Special Defences
S5(2)(a) states that a person will be regarded as having a lawful excuse if at the time of the act or acts alleged to constitute the offence he believed that the person or persons whom he believed to be entitled to consent to the destruction or damage to the property in question had so consented or would have so consented to it if he or they had known of the destruction or damage and its circumstances.
R v Denton; Blake v DPP
S5(3) its immaterial whether a belief is justified or not as long as its honestly held
Jaggard v Dickinson
S5(2)(b) states that a person will be regarded as having a lawful excuse if he destroyed or damaged (or threatened to) the property in order to protect property belonging to himself or another and he believed that the property was in immediate protection and that the means used were reasonable in all the circumstances
Hill and Hall; R v Melchett; R v Baker; R v Hunt; R v Kelleher; R v Jones and others
Aggravated Criminal Damage
1. (2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another -
(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and
(b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered;
shall be guilty of an offence.
A person who without lawful excuse destroys or damages any property whether belonging to himself or another:
- Intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged
and
- Intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would thereby be endangered
Actus Reus
D must:
- Destroy or Damage
- Property
- Belonging to Himself or Another
Mens Rea
- Intention or Subjective Recklessness as to causing damage
And
- Intention or Subjective Recklessness as to endangering life from the damage.
R v Merrick; R v Steer; Webster, Asquith and Seamans; Warwick
Arson
Arson may be committed by:
A positive Act
Or
An omission R v Miller
Meaning of Damage by fire:
Damage as previously defined:
- Affects the value
- Affects the usefulness/integrity
- Requires trouble/expense to remove repair
- Matter of fact or degree
Damage by Fire includes:
- Burns
- Singes
- Smoke damage
Actus Reus
D must (by act or omission)
- Destroy or damage
- Property
- Belonging to another
- By fire
- Without lawful excuse
Mens Rea
- Intention or Recklessness
R v Miller; R v Hunt; Goodfellow
Aggrivated Arson
Actus Reus
D must (by act or omission)
- Destroy or damage
- Property
- Belonging to another
- By fire
- Without lawful excuse
Mens Rea
- Intentionally or Recklessly damaging or destroying property by fire
And
- Intentionally or Recklessly endangering the life of another
Making off Without Payment
Contained in Section 3 (1) Theft Act 1978
“A person, 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.”
R v Greenburg
Actus Reus
- Making off (leaving by any means including stealth)
- Without payment (not paying for goods or services)
- When payment is required on the spot (at an appropriate time)
Mens Rea
-
Dishonestly (the Ghosh test)
- Intending to avoid payment (permanently – to never pay)
- Knowledge that payment is required or expected
Actus Reus
Making off
Making off simply means leaving by whatever means. It could be openly or by stealth R .v. McDavitt
Without Payment
Not paying for the goods or services provided
Aziz; Troughton
Payment Required on the Spot
Payment for goods and services made an the appropriate time.
For example:
- At the end of the meal at a restaurant
- At the end of the stay at a Hotel
- At the conclusion of a Haircut
- Taxi arriving at destination
Mens Rea
Dishonestly
Dishonesty is Judged by THE GHOSH TEST, the same test used in the Mens Rea of Theft.
- Was what was done by D dishonest according to the ordinary standards of reasonable and honestly people?
- Did realise that what he was doing was dishonest by those standards?
Intent to avoid payment
An intention to avoid making the payment for goods or services received.
This means an intention to evade payment altogether (per Allen) but does not include delaying or deferring payment.
Knowledge that payment is required
The Defendant must know that payment is required or expected.
The offence cannot be charge if the defendant simply forgot to pay.
Allen; Vincent
Fraud by a false representation
“the defendant must make a false representation dishonestly, knowing that the representation was or might be untrue or misleading, with intent to make a gain for himself or another or to cause a loss to another or to expose another to risk of loss”
Actus Reus
- Making a false representation
Mens Rea
- Knowledge that the representation is false
- Intention to gain or cause a loss
- Dishonestly
Actus Reus
- A representation is the communication or presentation of information to others
- This may be by words or conduct or both
- The representation can be expressed or implied
- A representation is false if it is untrue or misleading
R v Barnard; MPC v Charles; DPP v Ray; DPP v Stonehouse; R v King and stockwell
Mens Rea
The person making the representation:
- Must know that he has made a false representation and it is or might be untrue or misleading
- Must be dishonest (Ghosh test only)
- Must intend to make a gain for himself/another or cause a loss to another
Intention to make a gain or cause a loss
Make a gain
Means not only getting something you did not have before but also retaining something that you already had
Causing a loss
Includes where the victim does not get what they should have been given or they part with something they should not have
Obtaining services dishonestly
It must be shown that the defendant obtains for himself or another services
The defendant must be dishonest and know that the services are made available on the basis that payment has been (or will be made available)
The defendant must avoid or intend to avoid payment in full or part
Actus Reus
- Obtains services for himself or another
Mens Rea
- Avoid or intends to avoid payment in full or part
- Knowing that services are made available on the basis that payment has been (or will be made)
- Dishonestly
R v Widdowson
Defences
Self Defence – General Defence, Complete Acquittal.
Largely codified in S.76 Criminal Justice and Immigration Act 2008.
Necessary Force: - Need not show unwillingness to fight (Bird)
- Danger must be sufficiently imminent and of a nature to justify the use of force
-
Need not be attacked first (Beckford – Pre-emptive)
-
If threat has passed the force is not necessary (Clegg)
-
Not necessary if they are retreating (Martin)
-
D may act in contrary to law to defend himself (AG Ref. No 2 of 1983)
Reasonable Force:- Reasonable in the circumstances as the D believed them to be (objective)
-
If they make a mistake, it is whether the force was objectively reasonable in circumstances as they honestly believed them to be (Gladstone)
-
If it is objectively obsessive, even if the D thought was reasonable the defence fails (Owino)
-
Response must be proportionate to the threat (Palmer) “Cannot weigh nicety to exact measure of his defensive action”
-
Clegg and Martin can be used as measure of reasonableness of the force used
Intoxication – General defence → complete acquittal.
Voluntary Intoxication:- Majewski – Defence to only specific intent crimes. If basic intent then they are reckless in drinking. (Confirmed in Lipman)
Dutch Courage – Fails (Gallagher)
Drunken Mistake – Cannot rely on defence of mistake (O’Grady/Hatton)
Richardson + Irwin – If they would not have realized the risk will sober; it is a defence to basic intent. (Jury Q – Limited Application)
Involuntary Intoxication: Defence to basic and specific intent, has to be shown D had no MR.
Hardie: Drugs not liable to cause unpredictably and aggressiveness have a defence
Kingston: Intoxicated intent is still intent
Allen – Intoxication must be completely invol. Not knowing the strength is not enough.
Bailey: If you know there will be adverse reaction to a drug, cannot rely on defence
Ross v Lord Advocate: Complete involuntary intoxication
Eatch: If one intoxicant is added to another it is up to jury whether their intoxicated state was due solely to voluntary intoxication