25.1 Theft, Robbery and Burglary

Property offending is a staple of SQE1 FLK2 Criminal Liability. The SRA specified list includes theft (Theft Act 1968 s.1), robbery (s.8), burglary (s.9) and aggravated burglary (s.10). This independent OpenExamPrep section teaches those offences as a newly qualified solicitor uses them on a file: identify the correct charge, then test whether every element is present. Most candidates can recite s.1. The marks sit in appropriation, belonging to another, dishonesty after Ivey and Barton, intention permanently to deprive, the timing of force in robbery, and the building, trespasser and ulterior structure of burglary.

Theft: five elements, not a slogan

Section 1(1) provides that a person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it. "Thief" and "steal" take their meaning from that definition, which is why robbery, which requires that D "steals", collapses if any theft element is missing. Section 1(2) adds that it is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit. Taking to destroy, taking to give to a friend, and taking cash "only until payday" are all capable of being theft.

Work the five elements in a fixed order. If one fails, stop: there is no theft and therefore no robbery.

Appropriation

Section 3(1) treats any assumption of the rights of an owner as appropriation, and includes a later assumption where D obtained the property innocently. Switching a price label assumes one of the owner's rights (R v Morris). Later authority goes further. Lawrence v Metropolitan Police Commissioner and R v Gomez establish that an appropriation can occur even where the owner consents, including consent obtained by deception. R v Hinks holds that receiving a gift that is valid in civil law can still be an appropriation; the control mechanism is then dishonesty, not a civil-law veto. Do not write "no appropriation because V consented." Ask whether D assumed any right of an owner, then test dishonesty separately.

The later-assumption limb matters on found-property and hire-car facts. Deciding overnight to keep a wallet found in a taxi, or keeping a hire car after the contract ends, can be the appropriation even if the original obtaining was honest.

Property

Section 4(1) defines property as money and all other property, real or personal, including things in action and other intangible property. A bank credit, a cheque, and shares can be stolen. Land is then cut back by s.4(2): a person cannot generally steal land, except a trustee or personal representative, a person not in possession who appropriates by severing something from the land, or a tenant who appropriates a fixture. Picking wild mushrooms, flowers, fruit or foliage growing wild is not theft of property unless taken for reward, sale or other commercial purpose (s.4(3)). Wild creatures are covered only as s.4(4) provides.

Two negatives appear constantly. Confidential information is not property for theft (Oxford v Moss: copying an examination paper). Electricity is not property; the correct charge is abstracting electricity contrary to s.13 (Low v Blease). A corpse is not ordinarily property, though body parts can become property once skill and labour have been applied (R v Kelly and Lindsay). Services are not stolen; dishonest obtaining of services is a different Fraud Act offence.

Belonging to another

Section 5(1) treats property as belonging to any person having possession or control of it, or having in it any proprietary right or interest. Ownership is therefore neither necessary nor sufficient. R v Turner (No 2) is the illustration: a car owner who took his own car from a garage that had possession, and a repairer's interest, still appropriated property belonging to another. Abandoned property belongs to no one, but "I thought it had been dumped" is usually a dishonesty issue, not an automatic s.5 collapse.

Section 5(3) applies where D receives property from or on account of another and is under an obligation to retain and deal with it in a particular way. The obligation must be legal. Client-account money, a deposit that must be used for a named bill, and cash collected for a defined purpose are the usual examples (Davidge v Bunnett). R v Hall shows the other side: a travel agent who mixed deposits with general trading money was not necessarily under a s.5(3) obligation unless the facts imposed a duty to keep a separate fund.

Section 5(4) covers property got by another's mistake where D is under an obligation to make restoration. An overpaid salary credited by payroll error remains property belonging to the employer (Attorney-General's Reference (No 1 of 1983)). Noticing the extra credit and deciding to spend it supplies appropriation and, usually, intention permanently to deprive. Dishonesty is still a live question.

Dishonesty

Section 2(1) states three situations in which D is not to be regarded as dishonest: a belief in a legal right to deprive the other of the property (a claim of right); a belief that the other would have consented if they knew of the appropriation and the circumstances of it; and a belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. The third belief does not protect a trustee or personal representative. These are genuine beliefs. They need not be reasonable, although a wild belief may be evidence that it was not actually held. Section 2(2) confirms that willingness to pay does not prevent dishonesty.

Outside s.2(1), apply Ivey v Genting Casinos Ltd [2017] UKSC 67, confirmed for criminal trials in R v Barton and Booth [2020] EWCA Crim 575. First, ascertain D's actual knowledge or belief as to the facts. Second, ask whether ordinary decent people would regard the conduct as dishonest in the light of that knowledge or belief. There is no extra requirement that D appreciated that ordinary people would so regard it. The old Ghosh second limb is not the law. A client who says "I did not think it was dishonest" is describing a legally irrelevant extra step once their actual beliefs have been identified.

Intention permanently to deprive

The intention must exist at the moment of appropriation. Section 6(1) treats D as having that intention if he intends to treat the thing as his own to dispose of regardless of the other's rights. Borrowing or lending may amount to so treating it where the period and circumstances make it equivalent to an outright taking. R v Lloyd required that the goodness, virtue or practical value be exhausted (cinema films copied and returned were not). Taking a specific bundle of notes, intending to replace different notes later, is still intention permanently to deprive of those notes (R v Velumyl). Conditional intention to keep only if the goods are worth stealing does not, on R v Easom, amount to intention permanently to deprive in respect of items rummaged through and replaced. Offering to sell V's own property back to V can be treating it as one's own to dispose of (R v Raphael). Section 6(2) treats parting with property under a condition D may not be able to perform, such as pledging it, as intention permanently to deprive.

Robbery

Section 8(1) is theft plus force. D 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. No theft means no robbery. R v Robinson is the set-piece: a genuine s.2(1)(a) belief in a legal right to the money destroyed dishonesty, destroyed theft, and therefore destroyed robbery, even though force was used. There may still be an assault.

Force can be slight. A nudge that unbalances the victim is capable of being force (R v Dawson and James). Wrenching a bag from a shoulder is force on a person, not merely force on property (R v Clouden). The person put in fear need not be the owner. The fear must be of force then and there; a threat to come back next week is not robbery, though it may be blackmail, which is not a specified FLK2 theft offence.

Timing is the usual trap. Force used only after the theft is complete, and not in order to steal, is a separate assault. The Court of Appeal treats appropriation as capable of continuing, so tying up the householder while the defendants are still on the premises can be force at the time of stealing and in order to steal (R v Hale). Ask whether the stealing was still in progress, not whether the item had already been touched.

Burglary

Section 9 creates two offences. Under s.9(1)(a), D enters any building or part of a building as a trespasser with intent to steal anything in it, to inflict grievous bodily harm on any person therein, or to do unlawful damage to the building or anything therein (s.9(2)). Rape was removed as an ulterior offence by the Sexual Offences Act 2003. Under s.9(1)(b), D, having entered as a trespasser, steals or attempts to steal, or inflicts or attempts to inflict GBH. There is no completed-damage limb in s.9(1)(b). A trespasser who forms the intent to damage only after entry, and then damages, is not a s.9(1)(b) burglar, though simple criminal damage may lie.

"Building" includes an inhabited vehicle or vessel, even when the occupier is not there (s.9(4)). A large freezer container resting on sleepers was a building in B and S v Leathley; a wheeled lorry trailer used as a temporary store was not in Norfolk Constabulary v Seekings and Gould. "Part of a building" catches the shopper who leaves the public floor and goes behind a moveable counter or into a clearly private stockroom (R v Walkington).

Entry must be effective. Any part of the body can suffice; so can an instrument used to commit the ulterior offence. R v Collins requires that D enter as a trespasser and know that, or be reckless as to whether, he is a trespasser. Recklessness is subjective awareness of a risk of lacking permission. A person who has permission to enter, but not permission to steal, becomes a trespasser if they enter in excess of that permission (R v Jones and Smith). On indictment, burglary of a dwelling carries a maximum of 14 years; other burglary carries 10 years (s.9(3)).

Aggravated burglary

Section 10(1) is committed where D commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive. Firearm includes an airgun or air pistol. An imitation firearm is anything with the appearance of a firearm, whether capable of being discharged or not. A weapon of offence is any article made or adapted for causing injury to or incapacitating a person, or intended by D for such use. A screwdriver or kitchen knife can qualify if D intends to use it to injure or incapacitate.

"Has with him" means the article is in D's personal possession at the legally relevant time, not left in a car outside. For s.9(1)(a) the relevant time is entry. For s.9(1)(b) it is the time of the stealing or GBH (R v O'Leary). Picking up a knife from a kitchen drawer after entry, then having it while stealing, can convert the s.9(1)(b) burglary into aggravated burglary. Discarding a weapon before entry prevents s.10 on a s.9(1)(a) charge. The maximum sentence is life imprisonment.

Charging checklist for FLK2 files

On a problem question, name the base offence first. If the facts show a completed theft plus force used to get the property, consider robbery before you consider a free-standing assault. If the facts show a building, ask whether D was a trespasser at entry and whether the ulterior intent existed then (s.9(1)(a)) or whether steal/GBH happened after a trespassory entry (s.9(1)(b)). Only then ask whether a s.10 article was with D at that same moment. Do not let a knife on the kitchen table upgrade a s.9(1)(a) burglary if D did not have it at entry and no s.9(1)(b) stealing has yet occurred.

Remember the negative charges. Confidential information, electricity, and a mere use of services are not theft. A claim of right that is genuinely held is not dishonesty, so it is not theft and not robbery. A threat of future force is not robbery. Damage after a trespassory entry, with no intent to damage at the moment of entry, is not s.9(1)(b) burglary.