Section 1(1) of the Theft Act 1968 (TA 1968) creates the offence of theft. It states: “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.”
Sections 2-6 provide complete or partial definitions of the elements of theft. The actus reus of theft consists of (1) the appropriation of (2) property (3) belonging to another. The mens rea consists of the defendant acting (1) dishonestly, and (2) with the intention of permanently depriving the other of it.
The definition of “appropriation” is provided by s3(1) which 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 an owner.”
A case example is: R v Pitham & Hehl.
Some protection is offered to the bona fide (in good faith) purchaser by s3(2) which provides: “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.” Thus, if a person buys stolen property from the defendant, unaware that it is stolen, s/he will not be guilty of theft if s/he later discovers the truth and decides to keep the property. Nor will s/he be liable for handling stolen goods.
The House of Lords have also made it plain that an assumption of any right of an owner will be an appropriation. See: R v Morris; Anderton v Burnside (the label-switching cases).
A temporary appropriation can amount to theft: see Corcoran v Anderton (a case of Robbery).
Accepting a gift is an appropriation. See R v Hinks.
The House of Lords have held that a person can appropriate property even where the owner consents to the taking of property. See:
Lawrence v MPC; and
R v Gomez, where the defendant, an assistant manager of an electrical goods shop, lied to the manager of the store that two cheques presented by a friend were valid, with the result that £16,000 worth of goods were supplied to a rogue. The defendant and the rogue were convicted of theft. Lord Keith stated that a person could be guilty of theft by dishonestly appropriating goods belonging to another if the owner of the goods was induced by fraud, deception or a false representation to consent to or authorise the taking of the goods. Lawrence makes it clear that consent to or authorisation by the owner of the taking by the rogue is irrelevant. It was also held that it was irrelevant that the taking of the goods in such circumstances could also constitute the offence of obtaining property by deception under s15. (Note: However, this was the more appropriate charge.)
Section 4(1) provides a general definition of property for the purposes of theft, where it states: “Property” includes money and all other property, real or personal, including things in action and other intangible property.
Things in action are rights which can only be enforced by taking legal action, as they have no physical existence. For example, a debt (which can be enforced by taking legal action), copyrights, trademarks and patents. However, confidential information has been held to fall outside the definition of property: Oxford v Moss.
Section 4(2) provides that land cannot be stolen except in three particular circumstances:
(a) Where a person is dealing with land in a special capacity, for example as a trustee (and makes a dishonest appropriation).
(b) Where a person not in possession of the land severs something from it, for example crops or turf.
(c) Where a person in possession of the land as tenant appropriates a fixture or structure let with the land, for example by selling an outbuilding.
Section s4(3) states: “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.” Simply stated, it is not theft to take mushrooms or flowers, fruit or foliage from a wild plant. It would however, be theft to take the whole plant, or to take anything for a commercial purpose. Thus it would be theft if mushrooms were picked in order to sell them later.
Section 4(4) provides: “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 carcass 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 the course of reducing it into possession.” Thus, animals in zoos, safari parks and domestic pets can all be stolen, even if they are appropriated having escaped from captivity. A wild animal, whether live or dead, cannot be stolen unless it has already been taken into possession by somebody else. Note however, that there are other statutes which create specific criminal offences for poachers.
Belonging to Another
Section 5(1) provides an extended meaning for the phrase “belonging to another” where it states: “property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest …”
Therefore, it is not required that property should be owned by the person from whom it is appropriated; mere possession or control is enough. For a case example, see: R v Woodman.
Provided he has the necessary mens rea, a person can steal his own property from someone with a lesser interest: R v Turner (No 2), where the defendant removed his car from outside the garage at which it had been repaired, intending to avoid having to pay for the repair. The Court of Appeal held that the car could be regarded as ‘property belonging to another’ as against the owner, since it was in the possession and control of the repairer. (Note: were the same to happen today, a charge of making off without payment contrary to s3 TA 1978 would be more appropriate.)
Section 5(3) provides that it is theft if a person receives property under an obligation to deal with it in a certain way but instead uses it for his own purposes. It states: “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.”
The defendant must be under a legal obligation to retain property or its proceeds in a separate fund in order for s5(3) to apply. Compare:
- R v Hall – The defendant was a travel agent who had taken money for securing airline tickets for customers and not booked them. The Court of Appeal however, held that he was not under an obligation under s5(3); with
- Davidge v Bunnett – The defendant shared a flat with several other people who gave her cheques on the understanding that a communal gas bill would be paid with the proceeds. In fact, the defendant spent the proceeds on Christmas presents and left the flat without giving notice. The Divisional Court held that the defendant was under a legal obligation to use the proceeds of the cheques in a particular way (for the payment of the gas bill) and therefore they were property belonging to another by virtue of s5(3). This was therefore theft.
Where a person receives money or property for onward transmission to another there is clearly an obligation to retain and deal with it or its proceeds in a particular way: R v Wain, who had raised money for a company which distributed money among charities. He then dishonestly used the credit in his account.
If a person is given property by mistake it will still be treated as belonging to the person who gave it (subject to some complex civil law rules as to whether there is a civil obligation to return the property or not). Section 5(4) states: “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 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 as an intention to deprive that person of the property or proceeds.”
This was discussed in: Attorney-General’s Reference (No 1 of 1983) – The defendant, a policewoman, was overpaid. The money was credited to her bank account as a result of an error by her employer. The evidence suggested that having discovered the overpayment, the defendant simply allowed the money to remain in the account. She was charged with theft of the sum overpaid but the trial judge directed the jury to acquit. The question of whether a charge of theft was possible in such a situation was referred to the Court of Appeal. It was decided that provided there was sufficient evidence of mens rea, a charge of theft could succeed in such a situation. The defendant had got property (the excess payment) by another’s mistake and was under an obligation to restore the debt (a chose in action) to her employer. Further, Lord Lane CJ suggested that s5(4) only started to operate from the moment the defendant became aware of the overpayment.
There must be a legal obligation to restore property in order for s5(4) to apply. See: Gilks, where the Court of Appeal held that as the case involved a gaming debt, there was no “legal” obligation to make restoration and so s5(4) did not apply.
Section 2(1) sets out the situations where as a matter of law a person is not dishonest:
A person’s appropriation of property belonging to another is not to be regarded as dishonest-
(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
(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
(c) … if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
If there is evidence of a belief which is covered by s2(1), the judge must tell the jury that as a matter of law they must acquit the accused unless the prosecution disproves his alleged belief beyond reasonable doubt. Case examples for ss2(1)(a) and (c) include:
- Holden – The defendant took some scrap tyres from a garage where he sometimes worked. He said he had seen other workers doing the same, and that he had the supervisor’s permission but the manager said employees were forbidden to take tyres. The Court of Appeal quashed his conviction stating that it did not matter whether his belief (that he had a right to take the tyres) was reasonable; if he honestly believed that, then his taking would not be dishonest.
- Small – The defendant was charged with theft of a car. He claimed that he thought that it had been abandoned by the owner because it had been left for over a week with the keys in it. The Court of Appeal ruled that he could not be guilty of theft if he had an honest belief to that effect, as if the car had been abandoned, the owner would not be ‘deprived’ of it.
Two further subsections touch on the question of dishonesty:
- A defendant can be dishonest where he does not act with a view to making a gain for himself or another. It is sufficient that he acts with a view to causing loss to the owner, this being the effect of s1(2): "It is immaterial whether the appropriation is made with a view to gain or is made for the thief’s own benefit."
- Section 2(2) states: "A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property." This subsection meets a possible argument that an appropriation cannot amount to theft because the defendant is willing to pay for the property.
In cases where the defendant cannot use s2(1), but there is nevertheless some debate as to whether or not his actions were dishonest, the matter should be left to the jury (or magistrates) who should apply the test created by the Court of Appeal in R v Ghosh (a case involving s15 TA 1968):
(1) A jury (or magistrates) must decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter.
(2) If it was dishonest by those standards, then the jury (or magistrates) must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. It is dishonest for the defendant to act in a way which he knows ordinary people would consider to be dishonest.
In R v Roberts, the Court of Appeal ruled that this second point need only be put to the jury in those cases where the defendant raised the special plea that he did not think he was being dishonest by his own standards.
Intention to Permanently Deprive
The defendant must have taken the property “with the intention of permanently depriving the other of it”, although the owner does not actually have to be permanently deprived of his property. In most situations this should be evident from the facts (the history of what the defendant did with the goods).
Long-term or indefinite borrowing will not amount to theft: R v Warner – The defendant took a tool-box to annoy the owner but panicked and hid it when the police were called. He claimed that he intended to replace it as soon as he could do so undetected, but the judge directed the jury that an intention to keep property indefinitely could amount to theft. The Court of Appeal quashed the conviction.
A conditional intent to deprive will not amount to theft: Easom – The defendant picked up a handbag in a cinema, rummaged through its contents and then put it back without having taken anything. The Court of Appeal held that he was not guilty of theft of the handbag and its contents as a conditional intent to deprive was not enough. Note that he would be guilty of attempted theft.
It is not a defence to claim that money that has been taken would have been repaid: R v Velumyl.
Section 6 provides that in certain circumstances, where a person disposes of or borrows property, that person is to be regarded as having had the intention of permanently depriving the other of it. Section 6 states:
(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.
(2) … 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 the 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.
Section 6(1) deals with two separate situations where a defendant is deemed to intend to deprive the other permanently of the property:
- If his intention is to treat the thing as his own to dispose of regardless of the other’s rights. See: Lavender.
- Borrowing or lending for a period and in circumstances making it equivalent to an outright taking or disposal. For example, the use of a season ticket followed by its return to the owner at the end of the season. See: R v Lloyd.
Under s6(2) a person is to be treated as having an intention to permanently deprive the owner of his property if he parts with the property under a condition which he may not be able to perform. This is meant to provide for the case where a person takes another’s property and pledges it with a pawnbroker without the owner’s permission. Such a defendant will be deemed to have an intention to permanently deprive as it may be uncertain whether the defendant will be able to redeem the goods – the very fact that he has pawned them tends to show that he lacks money.
Section 8 of the Theft Act 1968 provides:
(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.
(2) A person guilty of robbery, or of an assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.
As robbery is theft aggravated by the threat or use of force, the elements of theft must be established before the defendant can be convicted of robbery. Thus for example, a person who forces another to hand over money, believing that he has a legal right to it, he is not guilty of theft. Compare:
- In R v Robinson, it was alleged that the defendant, who was owed £7 by the victim’s wife, approached the victim, brandishing a knife. A fight followed, during which the victim dropped a £5 note. The defendant picked it up and demanded the remaining £2 owed to him. Allowing the defendant’s appeal against conviction for robbery, the Court of Appeal held that the prosecution had to prove that the defendant was guilty of theft, and that he would not be (under s2(1)(a) of the 1968 Act) if he honestly believed that he had a right in law to deprive the victim of the money, even though he knew he was not entitled to use the knife to get it.
- In R v Forrester, the victim had retained the defendant’s £200 deposit when the defendant’s tenancy terminated. The defendant believed he had been asked to leave without justification and that the deposit was being unfairly withheld. The defendant, accompanied by a friend, went to the victim’s house, burst in when the door was opened and seized some items whilst his friend restrained the victim. His intention was to use the items to bargain for the return of his money. If this failed, he would sell the items and the use money for a deposit on another flat, returning the excess to the victim. The defendant’s conviction for robbery was upheld by the Court of Appeal. It was held that he knew he had no right to the items themselves and so could not claim that he was not dishonest under s2(1)(a).
A temporary appropriation will amount to theft. See: Corcoran v Anderton.
Where the accused has used force on another (or put another person in fear of force) in order to steal but has not achieved the appropriation of any property, and is therefore not guilty of robbery, he can be convicted of assault with intent to rob (s9(2) Theft Act 1968).
Use of Force
The question of whether or not force has been used is a question of fact to be determined by a jury, according to the Court of Appeal in R v Dawson. In practice it appears that very little force is actually required:
- In R v Dawson, the defendant had nudged the victim causing him to lose his balance so that his wallet could be more easily taken. His appeal against a conviction for robbery was refused.
- In R v Clouden, the defendant had pulled on the victim’s handbag to wrench it from her hands. The Court of Appeal held that whilst a snatching of property without resistance from the owner, such as by a pickpocket, should not amount to robbery, the question of whether force has been used ‘on any person’ should be left to the jury. The defendant was held to have been rightly convicted of robbery.
In Order to Steal
The force, or threat of force, must be used in order to steal according to s8(1). Therefore, if D attacks V in order to settle an argument, and having hit V to the ground finds his wallet to have fallen out, D will not be guilty of robbery should he run off with the wallet, because the force was not used by him with the intention of stealing. Similarly, the use of gratuitous violence after a theft would not constitute robbery because the force is not used in order to enable the theft to be carried out.
Immediately Before or at the Time of Stealing
Section 8(1) clearly provides that the force must be used immediately before, or at the time of, stealing, raising the question of for how long theft continues (an issue to be decided by the jury). It has been held that theft is a continuing act. See R v Hale, where D and E entered the victim’s house and while D was upstairs stealing a jewellery box, E was downstairs tying up the victim.
In R v Lockley, the defendant appealed against his conviction of robbery. The defendant, with two others, took cans of beer from an off-licence and when approached by the shopkeeper used violence. The defendant appealed on the basis that the theft was complete when he used the force, but the Court of Appeal followed Hale and dismissed his appeal.
Although the mens rea of robbery is not specifically mentioned out in s8, it is clear that there must be the mens rea of theft, and the force or threatened force must be in order to steal.
Section 9 of the Theft Act 1968 provides:
"(1) A person is guilty of burglary if- (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 (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.
(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 or of doing unlawful damage to the building or anything therein."
There are thus two types of offence: s9(1)(a) burglary and s9(1)(b) burglary.
The defendant must enter, or have entered, a building in order to be guilty of burglary. Whether there has been an entry is a question of fact for the jury. In giving them guidance, the Court of Appeal has held that there has to be an "effective" entry: R v Brown  Crim LR 212.
2. AS A TRESPASSER
A person enters a building owned by V as a trespasser if D has no express or implied permission from V, or the law, to do so. For the offence of burglary to be made out there must be a finding of civil trespass, but the Court of Appeal has held that a defendant charged with burglary must have mens rea as to whether or not he is trespassing. That is, the defendant must enter "knowing that he is a trespasser … or, at the very least, is reckless whether or not he is entering the premises of another without the other party's consent." See: R v Collins  QB 100.
Even if there is consent, if the defendant acts in a way which goes beyond what the possessor would have consented to, he may be deemed to enter as a trespasser: R v Jones and Smith  3 All ER 54.
3. ANY BUILDING OR PART OF A BUILDING
Whether or not a structure constitutes a building is a mixed question of law and fact to be determined by the jury after guidance from the trial judge. According to Smith and Hogan, Criminal Law, 1996, p632: "To be a building the structure must have some degree of permanence, permanence relating to the nature of the structure rather than the residence of the occupier. But movable structures, which are intended for permanent use as offices, workshops and stores (portakabins) may fairly be regarded as buildings though their intended use on a given site is only temporary." Section 9(4) gives an extended meaning to the term building by including within it "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".
"Part of a building" does not necessarily mean a separate room. It includes areas, eg those behind counters in shops, from which the defendant is either expressly or impliedly excluded. See: R v Walkington (1979) 68 Cr App R 427.
Section 9(3) of the TA 1968, as amended by s26(2) of the Criminal Justice Act 1991, provides that burglary committed in respect of a building which is a dwelling is punishable by imprisonment for up to fourteen years (see below). Dwelling is not defined but presumably means a building (or vehicle or vessel) in which someone lives as their home.
5. MENS REA
The mens rea requirement for burglary under s9 is:
(1) Intention or recklessness as to trespass, and
(2) It must be proved that the defendant, either (a) entered with intent to commit one of the following offences: stealing, inflicting g.b.h., and unlawful damage to the building or anything therein (for the s9(1)(a) offence); or (b) entered and committed or attempted to commit one of the following offences: stealing, inflicting g.b.h. (for the s9(1)(b) offence).
For these purposes, the defendant has one of the relevant intents though his intent is conditional - that he will steal anything worth stealing in the building, or that he will cause g.b.h. to V if V is there. That there is nothing in the building worth stealing or that V is out of town is no bar to the defendant's conviction (A-G's References (Nos. 1 and 2 of 1979)  3 All ER 143, and R v Walkington).
Section 9(3) provides: "A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding- (a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years; (b) in any other case, ten years."
7. AGGRAVATED BURGLARY
The offence of aggravated burglary is created by s10 of the TA 1968 which provides:
"(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; and for this purpose-
(a) 'firearm' includes an airgun or air pistol, and imitation firearm means anything which has the appearance of being a firearm, whether capable of being discharged or not; and (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 (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.
(2) A person guilty of aggravated burglary shall on conviction on indictment be liable to imprisonment for life."
The defendant must be proved to have had the weapon with him at the time the burglary is committed. In the case of s9(1)(a) burglary this is the moment of entry as a trespasser with intent. In the case of s9(1)(b), it is the moment when the offence of theft or g.b.h. is attempted or committed.
The Law Commission produced a report on fraud in 2002, highlighting problems with the law of fraud. It proposed new offences of fraud and of obtaining services dishonestly. The Fraud Act 2006 (which came into force in January 2007) abolished the offences of, amongst others:
- Obtaining property by deception (s15 Theft Act 1968);
- Obtaining services by deception (s1 Theft Act 1978); and
- Evading liability by deception (s2(1) Theft Act 1978).
The Fraud Act 2006 substituted a new offence of fraud (s1), which can be committed in three ways, plus one other offence:
- Fraud by false representation (s2);
- Fraud by failing to disclose information (s3);
- Fraud by abuse of position (s4); and
- Obtaining Services Dishonestly (s11).
MAKING OFF WITHOUT PAYMENT
Making Off Without Payment
Section 3 of the Theft Act 1978 provides:
(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) 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) 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.
1. MAKING OFF WITHOUT PAYMENT
The defendant must make off from the spot where payment is required but there are conflicting authorities on what this means:
- In McDavitt, the defendant refused to pay a restaurant bill after an argument with the manager. The defendant walked towards the door but was told the police were being called. The defendant went to the toilet and remained there. The trial judge directed the jury to acquit the defendant, as he had not made off from the restaurant itself.
- In Brooks & Brooks, D1 ran out of a rear door and D2 was caught having walked out of a restaurant. ‘The spot’ was treated as being ‘the spot where payment is required’, which would normally be the cash register.
2. GOODS SUPPLIED OR SERVICE DONE
Section 3 is confined to circumstances where goods are supplied or a service is done on the basis that payment will be made there and then. The obvious example is the restaurant where everyone knows that the meal is supplied on the understanding that the bill will be paid before the diner leaves the restaurant (CLRC, Thirteenth Report, para. 19). Further examples of the application of s3 are the passenger who at the end of his journey in a taxi runs off without paying his fare; and the motorist who has had his car’s petrol tank filled at a garage and when the attendant is called to the telephone drives off without paying for the petrol (CLRC, Thirteenth Report, para. 20).
Section 3 applies also to the collection of goods on which work has been done or in respect of which service has been provided. Examples are the collection from a shop of shoes which have been repaired or clothes which have been cleaned (CLRC, Thirteenth Report, para. 19).
3. WHEN PAYMENT IS REQUIRED OR EXPECTED
Section 3 is intended to protect legitimate business concerns only (CLRC, Thirteenth Report, para. 19). It does not apply when the supply of the goods or the doing of the service is contrary to law: s3(3). An offence is not committed under s3 if the payment required or expected is not legally due. Compare:
- Troughton v Metropolitan Police – A taxi driver took a drunken customer to Highbury but was then unable to get an exact address. He took a detour to a police station to try to clarify matters. The customer then tried to leave and was charged under s3. The Court of Appeal quashed the conviction on the basis that as the driver had not completed his part of the contract by taking the man home, payment was not yet required at the point when the defendant tried to make off.
- Aziz – The defendant and another man got into a taxi and asked to be taken 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. The defendant 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.
If the defendant obtains permission to pay at a later date, the offence is not committed:
- In Vincent, the defendant stayed at two hotels and left without fully paying his bills, having persuaded both hotel owners, by deception, to postpone payment. When payment was not later made, the defendant was charged under s3. The Court of Appeal quashed his conviction because the hoteliers had agreed to postpone payment, which meant that the actus reus had not been committed.
See Ghosh where the Court of Appeal laid down a two-stage test for dishonesty:
(1) A jury (or magistrates) must decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter.
(2) If it was dishonest by those standards, then the jury (or magistrates) must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. It is dishonest for the defendant to act in a way which he knows ordinary people would consider to be dishonest.
5. KNOWING THAT PAYMENT IS REQUIRED OR EXPECTED
It must be established that the defendant knew payment was required or expected of him. The obvious example is the restaurant where everyone knows that the meal is supplied on the understanding that the bill will be paid before the diner leaves the restaurant (CLRC, Thirteenth Report, para. 19). However, in Brooks & Brooks, the defendant left a restaurant in haste. When she was later interviewed, she said a friend had met her and her father and had offered to treat them to a meal. No one in fact paid. Her conviction was quashed because the trial judge had not alerted the jury to this defence.
6. INTENT TO AVOID PAYMENT PERMANENTLY
In Allen, the defendant left a hotel without paying his bill, leaving behind his belongings. He phoned later to say he was in financial difficulties. He offered to pay as soon as he received the proceeds from a certain business venture and arranged to collect his belongings and leave his passport as security. He was arrested upon his return. The House of Lords quashed his conviction and held that the prosecution had to prove an intention to avoid payment “permanently”.
The Criminal Damage Act 1971 contains three offences:
- S1(1) “basic” criminal damage;
- S1(2) “aggravated” criminal damage; and
- S1(3) arson, ie, criminal damage by fire.
Case examples of damage include:
- Tampering with a machine so that it did not work until repaired – Fisher;
- Trampling down grass – Gayford v Chouler;
- Smearing excrement on the walls of a police cell – Roe v Kingerlee;
- Denting a policeman’s hat, causing a “temporary functional derangement” – Samuel v Stubbs;
- Tipping loads of rubbish on land – Henderson & Battley;
- Painting on pavements (with water soluble paint) – Hardman; and
- Writing a biblical quotation on a concrete pillar – Blake.
Section 10(1) provides that “property” means property of a tangible nature, including: land; wild creatures (or their carcasses); but not including wild mushrooms, fruit or foliage.
Property must belong to another for the s1(1) offence only. Section 10(2) provides that property belongs to any person having: custody or control of it; any proprietary right or interest; or a charge on it.
The s1(2) offence requires an intention that the destruction or damage endanger life, or recklessness as to endangering life. Thus the defendant was not guilty in: Steer, when he fired three shots at the window of a house because his act of shooting endangered life and not the damage caused. However, the following defendants were guilty: R v Webster; R v Warwick.
There are two defences in s5(2), which only apply to the s1(1) offence, under which the defendant will have acted with a lawful excuse:
s5(2)(a) – Where the defendant believed that the owner had consented or would have consented had they known of the destruction or damage. See, for example, Jaggard v Dickinson; and
S5(2)(b) – Where the defendant did it to protect some other property which he believed was in immediate need of protection and that the means of protection were reasonable having regard to all the circumstances. See R v Hunt and R v Hill and Hall.
Insanity, also known as insane automatism, is covered by the M’Naghten Rules. Although they deal with what they describe as insanity, it is insanity in the legal sense and not in the medical or psychological sense. The Rules are contained in replies given by the judges of 1843 to certain abstract questions which were placed before them in M’Naghten’s Case.
The basic propositions of the law are to be found in the answers to Questions 2 and 3. The Rules lead to a special verdict of “not guilty by reason of insanity” and leave the defendant under the control of the court.
Disease of the Mind
Whether a particular condition amounts to a disease of the mind within the Rules is not a medical but a legal question to be decided in accordance with the ordinary rules of interpretation. It seems that any disease, which produces a malfunctioning of the mind, is a disease of the mind, and need not be a disease of the brain. It covers any internal disorder, which results in violence and is likely to recur. The following conditions have been held to amount to a disease of the mind:
- Arterial-sclerosis, a condition which restricts the flow of blood to the brain and can cause a temporary lapse of consciousness (R v Kemp);
- Psychomotor epilepsy, a disease of the nervous system, which may cause a mental blackout (Bratty v A-G for N. Ireland);
- Epilepsy (R v Sullivan);
- Hyper-glycaemia, high blood sugar level caused by diabetes (R v Hennessy); and
- Sleep-walking which had previously been thought to be an example of automatism rather than insanity, but it is now clear that the courts will treat sleep-walking as an example of disease of the mind with internal causes unless there is clear evidence of an external causal factor (R v Burgess).
Defect of Reason
The disease of the mind must have given rise to a defect of reason which had one of two consequences: either (a) the defendant did not know the nature and quality of his act, or (b) he did not know his act was wrong. The phrase “defect of reason” seems to mean that the powers of reasoning must be impaired, not merely confusion or absentmindedness. See: R v Clarke.
Nature and Quality of the Act
This phrase refers to the physical nature and quality of the act. It covers the situation where the defendant does not know what he is physically doing. For example, in Kemp the defendant was unaware of his actions because of a “blackout”.
The judges were asked in M’Naghten’s Case if a person could be excused if he committed an offence in consequence of an insane delusion. They replied that if he labours under such partial delusion only, and is not in other respects insane, “he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real”. Therefore, delusions which do not prevent the defendant from having mens rea will not lead to a defence.
Effect of Insanity
The Rules lead to a special verdict of “not guilty by reason of insanity” and leave the defendant under the control of the court. The sentencing powers of the court are in s3 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991:
- Where the sentence for the offence to which the finding relates is fixed by law - in effect, murder - the court must make a hospital order restricting discharge without limitation of time.
- In any other case the court may make a hospital order and an order restricting discharge either for a limited or unlimited period of time; or
- In appropriate circumstances: a guardianship order; a supervision and treatment order; or an order for absolute discharge.
Note: A hospital order is an order that the defendant be admitted to and detained in a hospital in order to receive treatment for a mental disorder. Such an order may be made upon proper medical evidence and only after a conviction for an imprisonable offence. (See ss37-43 Mental Health Act 1983.)
Automatism applies to the situation where the defendant is not legally insane but because of some external factor he is unable to control what he is doing, or as Lord Denning stated in Bratty v Attorney-General for N. Ireland  AC 386, where something was done by the defendant's muscles without the control of his mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking (although sleepwalking is now regarded as legal insanity).
It can then be argued that there is a lack of actus reus, as the act is not voluntary, or that there is a lack of mens rea because the defendant is not conscious of what he is doing. The defendant must fulfil two conditions:
A) TOTAL LOSS OF VOLUNTARY CONTROL
The defence is not available where the defendant's mind is functioning, albeit imperfectly. See: Attorney-General's Reference (No 2 of 1992)  3 WLR 982.
B) EXTERNAL FACTORS
This inability to control one's acts must result from the operation of some external factor upon the working of the brain, rather than an inherent mental defect. See: R v Quick  QB 910. The external factor could be a traumatic event including severe shock, although it must be something which results in more than general stress and anxiety. A good example is **** which lead to Post Traumatic Stress Disorder in: R v T  Crim LR 256)
C) SELF-INDUCED AUTOMATISM
A defendant may be prevented from raising the defence of automatism, where there is evidence to show that he was in some way at fault in bringing about the state of automatism. The principal authority on this point is the Court of Appeal decision in: R v Bailey  1 WLR 760. If the defendant is charged with a specific intent crime, he will have a defence if mens rea was not formed. If it is a basic intent crime, the defendant will have no defence if he was reckless.
Automatism operates as a complete defence in that if the defendant succeeds in establishing it, he will be acquitted, and the court ceases to have any jurisdiction over him. Where a defence of automatism is raised, the courts will have to consider whether the defendant should in fact be classed as criminally insane.
The General Rule
It was stated in R v Sheehan and Moore that “a drunken intent is nevertheless an intent”. Therefore, an intoxicated defendant must have been incapable of forming the mens rea for the crime. The House of Lords ruled in DPP v Majewski, that self-induced intoxication can only be raised as a defence to crimes of specific intent, but not to crimes of basic intent.
Basic and Specific Intent Crimes
A basic intent crime is one where the mens rea is intention or recklessness and does not exceed the actus reus. In simple terms this means that the defendant does not have to have foreseen any consequence, or harm, beyond that laid down in the definition of the actus reus. For example:
- The actus reus of malicious wounding or inflicting GBH (s20 OAPA 1861), is wounding or causing GBH and the mens rea is an intention to cause, or recklessness as to causing, some harm to the victim.
With the offence of “basic” criminal damage (contrary to s1(1) of the Criminal Damage Act 1971), the actus reus comprises the damage or destruction of another’s property and the mens rea is an intention to damage or destroy, or recklessness as to damaging or destroying, property belonging to another.
Basic intent offences also include: common law assault and battery, s47 of the Offences Against the Person Act 1861 and manslaughter.
A specific intent crime is one where in theory the mens rea goes beyond the actus reus, in the sense that the defendant has some ulterior purpose in mind. For example:
- The actus reus of wounding or causing GBH with intent to do some GBH (s18 OAPA 1861) is wounding or causing GBH. However, the defendant must be shown not only to have had the mens rea for wounding or GBH but also a further or “specific” mens rea, in the form of an intention to do some GBH or to prevent/resist a lawful arrest/detention.
In the “aggravated” offence of criminal damage (contrary to s1(2) of the Criminal Damage Act 1971), the offence is committed where a defendant causes damage or destruction to property with the intention of endangering life. The actus reus is almost identical to that of the simple offence, the differentiating factor is the further or “specific” intent that the defendant must possess, to endanger life.
Specific intent offences also include, murder which requires the prosecution to prove that the defendant had malice aforethought, s9(1)(a) burglary and making off without payment (s3 Theft Act 1978).
With a specific intent crime, the defendant is so intoxicated that the further intent cannot be formed.
With a basic intent crime, the defendant is reckless in becoming intoxicated and this recklessness is substituted for the recklessness needed as mens rea for the offence.
Intoxication by Hallucinogenic Drugs
A person can become intoxicated by drugs as well as by alcohol (and by both together!). The same rule in Majewski applies: R v Lipman – the defendant took LSD and, under the illusion that he was being attacked by snakes, killed the victim. The Court of Appeal saw no reason to distinguish between the effects of drugs and drunkenness.
The defendant’s liability will be reduced to a lesser basic intent crime. For example, murder will be reduced to manslaughter and s18 Wounding or Causing GBH with Intent will be reduced to s20 Wounding or Inflicting GBH.
Where there is no “lesser included” offence, the defendant will be completely acquitted, e.g., theft.
Where a drug, which normally has a soporific (drowsy or sleepy) effect, leads to a defendant committing a crime, the usual rules will not apply. See R v Hardie, where the Court of Appeal held that the trial judge should have distinguished valium, a sedative, from other types of drugs, such as alcohol, which were widely known to have socially unacceptable side effects. The jury should decide if the defendant was reckless in taking the valium, in the sense that he had been aware of the risks associated with its consumption, although not necessarily aware of the risk that he would actually commit aggravated criminal damage.
“Dutch Courage” Intoxication
Where a defendant gets intoxicated in order to give him/herself the courage to commit a crime, intoxication will not be a defence at all: See the speech of Lord Denning in A-G for N. Ireland v Gallagher, where the defendant decided to kill his wife and bought a knife and drank a bottle of whisky. The House of Lords held that intoxication could not be a defence as the mens rea was formed before the killing took place.
Under-estimating the strength or amount of alcohol consumed or its effect is not involuntary intoxication. See R v Allen where the defendant drank home-made wine unaware that it was extremely strong and committed sexual offences. The Court of Appeal held that this did not amount to involuntary intoxication. He was thus treated as if he were voluntarily intoxicated.
Involuntary intoxication is where a person does not know s/he was taking alcohol or an intoxicating drug. In such cases, there will only be a defence if the mens rea for a crime was not formed. See R v Kingston – The defendant, a paedophiliac homosexual, was photographed and audio-taped in a compromising situation with a boy. He claimed that his drink had been laced as part of a blackmail plot. The House of Lords held that involuntary intoxication was not a defence to a charge if it was proved that the defendant had the necessary intent when the offence was committed, even though he was not to blame for the intoxication. Lord Mustill regarded this present case as one of disinhibition, ie the drug did not create the desire to which the defendant gave way but enabled it to be released.
In A-G’s Reference (No 6 of 1980), where two men decided to settle an argument by a fight, the Court of Appeal held that it was not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. It is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This was endorsed by the House of Lords in R v Brown (the case of the sado-masochistic homosexuals).
Nothing said in the A-G’s Reference was intended to cast doubt on the accepted legality of: properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, and dangerous exhibitions etc. In R v Brown, Lord Templeman said a person is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity such as: surgery, ritual circumcision, tattooing, ear-piercing and violent sports including boxing.
Other case examples of exceptions to the general include:
- Activity between husband and wife, as in R v Wilson (but see the limits in R v Emmett);
- Sport, as in R v Barnes; and
- Horseplay as in R v Jones and R v Aitken.
It has been held that consent must be “real” or genuine in order for it to be valid. See: Tabassum.
Where a person has a sexually transmittable disease, a sexual partner’s consent must be an informed consent in order for it to be valid: Konzani.
Self-Defence and Prevention of Crime
Under the common law, a person can use reasonable force to defend him/herself, another person or property. Section 3 of the Criminal Law Act 1967 allows a person to use reasonable force in the prevention of crime or making an arrest. Self-defence is a complete defence, leading to an acquittal.
In assessing whether a defendant had used only reasonable force, Lord Morris in Palmer felt that a jury should be directed to look at the particular facts and circumstances of the case.
If a person is not acting in self-defence or uses excessive force, the defence will fail as in:
- Clegg, where a soldier's fourth bullet went through the rear screen of a car that did not stop at an army checkpoint. Note that a retrial was ordered in the Clegg case, based on new forensic evidence. Read a BBC News article about the case.
- Martin, who shot two burglars in the back. See the BBC News article: Tony Martin: Crime and Controversy.
If the defendant makes a mistake about the amount of force that should have been used then, according to cases such as Scarlett and Owino, the jury must decide whether the force used was reasonable in the circumstances as he believed them to be.
It is not absolutely necessary that the defendant be attacked first. As Lord Griffith said in Beckford: “A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”
If a person believes that he may be attacked, he may arm himself for his own protection. See: Attorney-General’s Reference (No 2 of 1983). However, such a defendant may commit other offences, eg, the unlawful possession of a fire-arm.
Mistake as to Self-defence
If a defendant mistakenly believes himself to be threatened or mistakenly believes that an offence is being committed by another person, s/he will be judged on the facts as they honestly believed them to be, and allowed to use a reasonable degree of force. The following defendants had their convictions quashed in such circumstances: Williams (Gladstone), Beckford and Faraj.
Intoxication and Self-defence
It has been held that a drunken mistake as to self-defence, however genuinely believed, is no defence to a criminal charge: O’Grady.
Duress by Threats
Duress is where a person was forced by someone else to break the law under an immediate threat of serious bodily harm befalling himself or someone else. If duress is established it is a complete defence resulting in an acquittal.
The threat will usually be made to the defendant but cases have also included the defendant’s:
- Wife and children (Ortiz);
- Mother (R v K); and
- Girlfriend (Hurley).
In Shayler, the Court of Appeal stated that the threats must be directed towards the defendant or a person for whom he has responsibility or for whom the situation makes him responsible, eg, where the threat is made to set off a bomb unless the defendant performs the unlawful act.
The threats must be directed at the commission of a particular offence. In R v Cole, the defendant was charged with committing a number of robberies at building societies and stated that he had acted under duress. He had owed money to money-lenders who had threatened him, his girlfriend, and their child with violence if the money was not repaid. The trial judge ruled that the facts did not give rise to the defence as the threats had not been directed at the commission of a particular offence, but to the repayment of the debt. The defendant’s appeal against conviction was dismissed. It was held that the defence of duress by threats was only made out where the threatener nominated the crime to be committed by the defendant. In the present case the threatener had indicated that he wanted the defendant to repay the debt, an action that, if carried out, would not necessarily involve the commission of an offence.
The Test for Duress
- Whether or not the defendant was compelled to act as he did because, on the basis of the circumstances as he honestly believed them to be, he thought his life was in immediate danger.
- Would a sober person of reasonable firmness sharing the defendant’s characteristics have responded in the same way to the threats?
The jury should be directed to disregard any evidence of the defendant’s intoxicated state when assessing whether he acted under duress, although he may be permitted to raise it as a separate defence in its own right.
Immediacy of the Threat
The threat must be “immediate” or “imminent” in the sense that it is operating upon the accused at the time that the crime was committed. If a person under duress is able to obtain the protection of the law, s/he must do so. When the threat has been withdrawn or becomes ineffective, the person must stop committing the crime as soon as s/he reasonably can. In R v Hudson & Taylor, it was held that if the defendant has an opportunity to seek help but fears that police protection will be ineffective, the matter may still be left to the jury. However, in Hasan  UKHL 22 (see below for facts), Lord Bingham felt that this was too favourable to the defendants and stated that it should be made clear to juries that:
“... if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.”
Violent Gangs and Persons
The defence of duress is not available to persons who commit crimes as a consequence of threats from members of violent gangs which they have voluntarily joined. A defendant who joins a criminal association which could force him to commit crimes can be blamed for his actions: R v Sharp.
However, the defence is not automatically unavailable because the duress comes from a criminal organisation which the defendant has joined. It depends on the nature of the organisation and the defendant’s knowledge of it. If s/he was unaware of any propensity to violence, the defence may be available. The court so held in:
R v Shepherd.
The principle in R v Sharp was extended by the Court of Appeal in R v Ali to associations with a violent person. This was endorsed by the House of Lords in Hasan.
Duress is considered to be a general defence in criminal law, but there are a number of offences in relation to which duress cannot be raised as a defence:
- Murder (R v Howe); and
- Attempted Murder (R v Gotts).
Necessity and Duress of Circumstances
Necessity arises where a defendant is forced by circumstances to break the criminal law. The generally accepted position is that necessity cannot be a defence to a criminal charge. The leading case is R v Dudley & Stephens (1884), where two shipwrecked sailors killed and ate the cabin boy. They were convicted of murder. This case was affirmed by the House of Lords in R v Howe (a case on duress by threats) and until recently it was commonly thought that a general defence of necessity did not exist in English law.
Duress of Circumstances
More recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury. The three principles of the defence and the two-stage test were explained by the Court of Appeal in R v Martin (1988).
The defendant must stop committing the offence as soon as s/he reasonably can as duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased: R v Pommell.
There is also a requirement of directness and immediacy which was explained by the Court of Appeal in: R v Cole. At the defendant’s trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him, his girlfriend and child. The Court of Appeal held that the defence of duress of circumstances was not available. For the defendant to rely on the defence of duress of circumstances, there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury.
In R v Pommell, the Court of Appeal held that the limited defence of duress of circumstances, developed in English law in relation to road traffic offences, was closely related to the defence of duress by threats and applied to all crimes except murder, attempted murder and some forms of treason. (Out of interest: What are the laws on treason?)
If successfully established, duress of circumstances is a complete defence, resulting in an acquittal.
Mistake of Law and of Fact
Mistake of Law
There is a general rule that ignorance of the criminal law is no defence, even if the ignorance is reasonable in the circumstances. For example, see: R v Reid (Philip), where a constable saw the defendant driving a car without a tax disc. He stopped the defendant and then noticed that the defendant’s breath smelt of drink. The defendant refused to provide a specimen stating that the constable had no power to administer a breath test except after an accident, where there had been a moving traffic offence or where the constable had reasonable cause to believe from the manner of his driving that the driver had been drinking. The defendant was convicted of failing, without reasonable excuse, to provide a specimen for a laboratory test, contrary to s3(3) of the Road Safety Act 1967. The Court of Appeal held that the fact that the defendant mistakenly believed that he was not legally obliged to provide a specimen did not constitute a ‘reasonable excuse’ for refusing to do so.
By way of contrast to a mistake of criminal law, a mistake of civil law can quite easily provide a defence to a criminal charge, provided the actus reus of the offence involves proof of a legal concept. See: R v Smith (1974).
Mistake of Fact
A mistake of fact will be a complete defence, resulting in an acquittal, where it prevents the defendant from forming the mens rea of a crime. See: DPP v Morgan, where the defendants were members of the RAF. Morgan invited the three other defendants to his house and suggested to them that they should all have intercourse with his wife. He told them to expect some show of resistance on his wife’s part but that it was mere pretence whereby she stimulated her own sexual excitement. The three younger men were convicted of **** and aiding and abetting **** despite their contentions that they had believed the victim to have been consenting to sexual intercourse and Morgan was convicted of aiding and abetting ****. They appealed against the trial judge’s direction that a belief that Mrs Morgan consented must have been honestly and reasonably held. The House of Lords, by a majority of three to two, held that a defendant was to be judged on the facts as he honestly believed them to be, and thus a mistake of fact would afford a defence no matter how unreasonable it might be provided that it was honestly made. However, the House of Lords dismissed the appeals as the jury obviously considered that the defendants’ evidence as to the part played by Mrs Morgan was a pack of lies (per Lord Cross).
Where a defendant’s mistake of fact arises from self-induced intoxication, it will only provide a defence to crimes of specific intent. See: Fotheringham, where the defendant had been out drinking, got into bed and forced the baby-sitter (who had fallen asleep in the bed) to have sexual intercourse. He claimed that he was so drunk that he thought the girl was his wife. The Court of Appeal held that (1) self-induced intoxication cannot be used as a defence to a crime of basic intent and stated that (2) neither could the defence of mistake be raised, if this mistake were caused by self-induced intoxication: O’Grady.