Property Offences


Gomez [1993]

  • Lord Keith: “The actual decision in Morris was correct, but it was erroneous, in addition to being unnecessary for the decision, to indicate that an act expressly or impliedly authorised by the owner could never amount to an appropriation. There is no material distinction between the facts in Dobson and those in the present case. In each case the owner of the goods was induced by fraud to part with them to the rogue. Lawrence makes it clear that consent to or authorisation by the owner of the taking by the rogue is irrelevant. The taking amounted to an appropriation within the meaning of section 1(1) of the Act of 1968. “In my opinion Lord Roskill was undoubtedly right when he said…that the assumption by the defendant of any of the rights of an owner could amount to an appropriation within the meaning of section 3(1)…” - Appropriation of property an entirely morally neutral act. Consent or authorisation of owner irrelevant.
  • Lord Browne-Wilkinson – “I regard the word appropriation in isolation as being an objective description of the act done irrespective of the mental state of either the owner or the accused”
  • Academic JC Smith said of the case went completely against the intention of parliament as shown by the CLRC. He followed with saying Gomez had led to the extraordinary conclusion if anyone does anything whatever to property belonging to another, with or without the consent, AP’s it, and if he does that dishonestly and with the intent to permanently deprive it is theft. Academic S Gardener (1993) disagreed citing the examples of the elderly who are often exploited for overcharging of work, underpayment of treasures with their consent. He argues consent should not be included as someone saying yes at the threat of a gun would therefore remove theft as an option. 
1 of 21

Criticisms of Gomez and Hinks

  • Actus reus of theft will be easy to prove in most cases
  • Emphasis now on proving mens rea, in particular, dishonesty.
  • Smith & Hogan: Effect of Gomez to reduce actus Reus of theft almost to ‘vanishing point’.
  • Offence becomes too dependent on mens rea & loses its ‘manifest criminality’.

Shute (2002): 1.      Hinks opens the door to inappropriate prosecutions 2.      Hinks is that it pares down excessively the actus reus of theft. 3.      It rides roughshod over the intentions of the framers of the Theft Act 1968 4.      It removes the predictability of the law 5.      It breaches the harm principle (that criminalisation is only to prevent societal harm) as expands the scope of the offence to criminalise activities which do not breach civil law.

Simester & Sullivan:1.  Theft not a crime in thin air- is designed to protect & reinforce property rights. Since theft has no other raison d’être, is inherently derivative upon civil law of property. 2.  Without civil law information of knowing who owns property, have no way of discovering whether anything wrong happened: unless violation of property rights, where is the harm? 3.  Hinks cuts property offences adrift from law of property rights: can be a crime without a harm/wrong.

2 of 21

Theft of Land

cannot generally be stolen S4 (1) and the exceptions are in S4 (2) and (3) and (4). 4 (2a) provides land can be stolen by trustees or personal representatives appointed by will. 4 (2b) applies to people not in possession who sever fixtures or growing things. 4 (2c) applies to tenants in possession who steal fittings or fixtures but cannot steal the land/dwelling of which he is in possession (so he can steal carpets but not top soil), and this does not include licenses. Intangible property rights are covered by 4 (2c). 

a.      S4 (3) states wild flowers and fruit cannot be stolen unless done for reward or for sale/any other commercial purpose.


3 of 21

S(1) Dishonesty Beliefs

S 2(1) Beliefs – this section contains a partial definition of dishonesty. Conduct will not be dishonest if the D has any of three specified beliefs:

                                                              i.      2(1a) – Belief in Right (the claim of right defence), it need be honest but not correct or reasonable. R v Small [1988] states reasonableness is a factor however when decided if an honest belief existed.

                                                            ii.      2(1b) – Belief in Consent – must be honest and genuine but not reasonable, will hold the appropriation as not being dishonest if D AP’s the property with the belief that C would have consented if they knew of the AP and the circumstances of it.

                                                          iii.      2(1c) – Belief that the Property is Lost – reasonable steps must be taken to discover if there is an owner.

4 of 21

Ghost Test

  • Lord Lane:“If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest.”


      Dishonesty may be easily recognised – but far more difficult in situations in which jury/ magistrates unfamiliar e.g. fraud.

      In multicultural society, someone who is poor or a member of a minority community may have conduct characterised by people who are wealthy and members of the majority community.

      “current standards of ordinary people” :

     Derogation of principle of maximum certainty in the criminal law

     Increased risk of different courts reaching different verdicts on similar facts

     Room for infiltration of irrelevant factors.

5 of 21

5 AR of Robbery

1.      Theft must be Proven (and thus any defence to theft also applies to robber) – R v Robinson [1977]. Unlawful possession is not a defence (Smith, Plummer, Haines [2011])

2.      Force must be used immediately before or at the time of stealing and in order to do so OR someone must be put in fear of force OR D must seek to put someone in fear: A. There must be a causal connection between the use or threat of force and the theft (in order to do so) B. There are situations in what can be called a continuing act of theft (R v Hale [1978])

3.      Force must be used against a person and not property – but not necessarily against the person in possession (Smith v Desmond [1965])

4.      Any amount of force will do – Dawson v James [1976] a push or a nudge causing the V to fall suffices, as does wrenching a bag from a hand (R v Clouden [1987]) as long as there is physical force (DPP v RP [2012]).

a.      Mere threat of force is sufficient (DPP v BR [2007]), so a threat against a sleeping person would sufficent 

5.      Robbery is complete at the time of appropriation – Corcoran v Anderson [1980] a handbag was snatched from a womans hand and then dropped and left behind. This was still held to be theft.

6 of 21

Actus Reus of Handling Stolen Goods S22(1) TA 1968

Actus Reus – 4 elements

1.      Goods must be stolen – restoration to the owner means that the goods are no longer stolen if they are then handled (e.g if under watch of the police, they are no longer stolen)

2.      Goods and their proceeds of sale (S24(2)) are equal.

3.      Handling means receiving, undertaking, assisting or arranging.

a.      Receiving need not be for someone else’s benefit and unloading a stolen lorry with a thief does not amount to taking possession (Hobson [1957])

b.      Undertaking/Assisting must be for the benefit of another AND the handler must assist another person in doing the act

4.      Otherwise than in the course of stealing (S22) 

7 of 21

Mens Rea of Handing Stolen Goods

1.      Knowledge or Belief that the goods are stolen. The test is subjective, and suspicion is insufficient. Knowledge that good are stolen can be inferred from catching D with them when he can provide no reasonable explanation for it.

2.      Dishonesty – Ghosh test and S2(1) Theft Beliefs

8 of 21

Fraud Key Cases

Ray [1974] – Deception by silence or conduct

Silverman [1988] – deception by silence in a situation of trust

Charles [1977] – implied representation by use of cheque card

Lambie [1982] – implied representation by use of credit card

Gilbert & Ors [2012] – the intent to gain/risk/cause loss must arise from the specific false representation alleged 

9 of 21

Section 1 Fraud Act 2006

(1) A person is guilty of fraud if he is in breach of any of the sections listed in subsection (2) (which provide for different ways of committing the offence).

(2) The sections are—

(a) Section 2 (fraud by false representation),

(b) Section 3 (fraud by failing to disclose information), and

(c) Section 4 (fraud by abuse of position).

(3) A person who is guilty of fraud is liable—

(a) On summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both);

(b) On conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine (or to both).

10 of 21

Section 2 Fraud Act 2006

Section 2: Fraud by False Representation

(1)A person is in breach of this section if he—

(a) Dishonestly makes a false representation, and

(b) Intends, by making the representation— (i) To make a gain for himself or another, or (ii) 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 (b) The person making it knows that it is, or might be, untrue or misleading.

(3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a) The person making the representation, or (b) Any other person.

(4)A representation may be express or implied.

(5)For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention).

11 of 21

Section 2 Fraud Act 2006 - AR

S(2) Falsity is defined as being misleading or untrue, and there needs to be a causal link between the statement and the D’s intention to gain or risk cause loss (S2 (1b)).

Neither the V nor the Recipient of the FR need suffer a Loss – the only requirement is for the D to intend this to occur and this has led to academic D Ormerod in 2007 to say that S2 creates an incomplete offence which criminalises lying. Also the V does not have to rely on the false representation.

S2(3) covers representations as to fact, law and states of mind, but it can be difficult to distinguish facts from opinion. State of Mind representations are generally used to convey intentions.

S2(4) covers express or implied representations. Silence will generally fall into the implied category such as sitting down in a restaurant and ordering food (R v Ray [1974])

12 of 21

Section 2 Fraud Act 2006 - MR

Dishonesty – The S2(1) beliefs under the Theft Act 1968 do not apply. However the Ghosh test does.

Knowing that the representation is or might be false – more demanding than belief or recklessness and “closing ones mind to the truth” will count as knowledge

With intent to gain or cause loss to another or expose another to risk of loss – the casual link in the offence 

13 of 21

Section 3 Fraud Act 2006

Section 3: Fraud by Failing to Disclose Information

A person is in breach of this section 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—

(i)to make a gain for himself or another, or

(ii)to cause loss to another or to expose another to a risk of loss

The section does not cover moral duties to disclose or moral/financial exposure, for example:

1.       Where it would be reasonable to expect disclosure in any type of commercial transaction (caveat emptor)

2.       Where an expert takes advantage of someone less skilled (for example buying Art).

14 of 21

Section 4 Fraud Act 2006

Section 4: Fraud by Abuse of Positon

(1) A person is in breach of this section 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—

(i) To make a gain for himself or another, or

(ii) To cause loss to another or to expose another to a risk of loss.

(2) A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

15 of 21

Section 11 Fraud Act 2006

Section 11: Obtaining Services Dishonestly

(1)A person is guilty of an offence under this section 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— (i) That they are being made available on the basis described in paragraph (a), or (ii) That they might be, but intends that payment will not be made, or will not be made in full.

(3)A person guilty of an offence under this section is liable—

(a) On summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum (or to both); (b) On conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine (or to both).

16 of 21

Section 3 Theft Act 1978

Section 3 Theft Act 1978

(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.

(4)Any person may arrest without warrant anyone who is, or whom he, with reasonable cause, suspects to be, committing or attempting to commit an offence under this section.

17 of 21

Section 3 Theft Act 1978

Actus Reus

Makes off -  The spot at which immediate payment is expected depends on the circumstance. For example at train station it is at the train barrier, at a restaurant it is at the cash point (Brooks and Brooks [1982]). The spot can be in motion, for example with a taxi (R v Aziz [1993]).

Goods Supplied Or Service Done: Any service or supply of goods where immediate payment is expected will be covered.AND The goods must actually be supplied and the service must be lawful.

Without having paid as required or expected: The payment must be lawfully due 

-          A taxi driver took a D to a police station when he was being disorderly and demanded payment, in court he was not found to have made off without payment, when the D ran away – Troughton [1987]

Mens Rea

Dishonesty when he makes off AND Knowing that payment on the spot is expected of him

With intent to avoid payment – an intent to delay or defer payment is insufficient (R v Allen [1985])

18 of 21

Section 9 Theft Act 1968

Section 9 Theft Act 1968

(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 F1... therein, and of doing unlawful damage to the building or anything therein.

(3)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.

(4)References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

19 of 21

Burglary Actus Reus

1. .      Entry

The entry did have be effective and substantial (R v Collins [1972]) however this was reduced to only having to be EFFECTIVE (R v Brown [1985]).

If a tool is used, then it will depend on the intention of the D. If he intends to simply gain entry it is considered attempted burglary, however if he intends stealing articles then it’ll be entry. This is seen in the case of Horncastle [2006].

2.      As a Trespasser

If you have permission to enter, you cannot trespass (E.g a tenant has right to enter and the right to restrict, a hotel guest must abide by the rules of a hotel manage etc). It is (controversially) suggested in the case of Jones & Smith [1976] that if you are allowed to enter for one purpose but then do another you have trespassed, but this is not clear in the face of the law.

3.      Any building or part thereof

Behind a shop counter is burglary (Walkington [1979], a lorry trailer being used as a supermarket is not a building (Seekings & Gould [1986]) and generally anything used to live in for long periods of time is a dwelling.

20 of 21

Section 10 Theft Act 1968

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.

21 of 21


No comments have yet been made

Similar All resources:

See all All resources »See all Criminal Law resources »