June 2014: Scenario 2, Q04 - Theft and Robbery Bullet Point Essay Plan

• The first offence Ewan may be guilty of is Theft under the Theft Act 1968, this would be regarding the gift of £50 000 from Glenda.
• S1 of the act defined this offence as the "dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it."

• The first element of theft is that there must be an appropriation.
• This was defined by S3(1) of the Act as "any assumption of the rights of an owner amounts to an appropriation, and this includes where D has come by the property (innocently or not) without stealing, any later assumption made by keeping or dealing with it as the owner."
• D does not need to assume all the rights of the owner, the case of Morris decided that one is enough.
• Here, there it is clear that by having the money in his bank account, Ewan has assumed the rights of the owner.

• The main problem here however is that Glenda appears to have consented to Ewan appropriating the money.
• However, Ewan has taken advantage of Glenda's loneliness and has deceived her by starting a relationship with her and promising to marry her for the pure purpose of gaining money from her.
• The case of Lawrence decided that where deception is used to gain consent an appropriation can still be made out.
• Furthermore, it doesn't matter that the money was an unconditional gift from Glenda.
• This was shown in the case of Hinks, where D had received an unconditional gift from V, who was of low intelligence, and was still guilty of theft.

• The second element of the Actus Reus is that D must steal property.
• This was defined by S4(1) of the act as including "money and property, real or personal, things in action and other intangible property."
• Here the money that has been transferred into Ewan's bank account is a clear example of an intangible thing in action.
• The final element is that the property must belong to another.
• This was defined in S5(1) as a "person who has possession and control of it, or having in it any proprietary right or interest."
• The property clearly belongs to Glenda as before transferring the money into Ewan's bank account she had both possession and control of the money.
• S5(3) and S5(4) are not relevant here as the money did not come to Ewan under an obligation or by mistake.

• The first element of the mens rea is dishonesty.
• This is not defined by the act, however the case Ghosh outlines a two part test to determine dishonesty.
• The first part of the test is objective and asks if Ds actions were dishonest by the ordinary standards or a reasonable and honest man?
• The second part is subjective and asks if D realised his actions were dishonest by those standards mentioned above?
• Here, a reasonable and honest person would defiantly find Ds actions dishonest as he deceived Glenda and used her vulnerability of being lonely to his advantage.
• It seems very likely that Ewan would realise his actions were dishonest as he clearly knows what he is doing and knows that he is manipulating Glenda and her situation.
  However, this last part of the test is subjective so Ewan may try to argue that he didn't realise he was being dishonest.
• This is very unlikely though as the extent of his dishonesty is obvious.

-The last element of theft is an intention to permanently deprive.

• Clearly the case as by having the money in his bank account to use and spend at his disposal, he makes a decision to bring about the prohibited concequences of permanently depriving Glenda of her money
• Although S6 outlines conditions of this final element, they are not applicable here as the propert has not been lent or borrowed.

• As all of the elements of theft can be proven, it is likely that Ewan will be found guilty of theft under the Theft Act 1968.
• Ewan may also be guilty of burglary under S9 of the Theft Act 1968 regarding the incidents that occurred with trying to steal the gold watch.

• The first element of the Actus Reus is entry.
• This is not defined by the act, although the case of Brown decided that the entry only needs to be effective and the case of Ryan said that provided the jury can find evidence of this then entry can be found.
• Here, Ewan clearly enters the house as "he entered using the key which Glenda always left under a plant pot outside."
• The entry was effective as Ewan was able to find the watch.
• The second element is that the entry must be into a building or part of a building.
• It was decided in Stevens v Gourley that a building could be determined by being of a considerable size and permanence.
• Glenda's house clearly comes within these boundaries.

• The final Actus Reus element is that D must enter as a trespasser.
• This is not defined by the Act but the case of Collins stated that if D has permission to enter then he cannot trespass.
• However, Smiths and Jones decided that if D goes past this permission then he becomes a trespasser.
• Although Ewan may have had permission to enter at one time, he no longer has this permission as Glenda told Ewan "Don't come here ever again!"
• He certainly wouldn't have Glenda's permission if she knew he was entering intending to steal from her.

• The act outlines two different forms of the Actus Reus in S9(1)(a) and S9(1)(b).
• Here only S9(1)(a) is relate to. This says "a person is guilty of burglary if he enters any building or part of a building as a trespasser with the intent to steal, inflict GBH or do criminal damage."
• Ewan clearly enters the building with intent to steal as he "wanted Glenda's gold watch which he knew was in her bedroom."
• It does not matter that he did not actually steal the watch and that he "instantly put it back when he heard Glenda return" as intent on entry is enough for S9(1)(a).
• As all of the elements are satisfied, Ewan may be guilty of burglary under S9(1)(a) of the Theft Act 1968 for his attempt to steal Glenda's gold watch.