Criminal Litigation

Robbery | Burglary & Blackmail | Criminal Law – SQE1 & SQE2 Examinations – solicitorsqualifyingexamination.net

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Robbery, Burglary & Blackmail
Robbery
Robbery is an offence under s 8(1) Theft Act 1968 (TA 1968).
• Theft
• Immediately before or at the time of theft + in order to steal, he:
o Uses force on any person; or
o Puts or seeks to put any person in fear of being then and there subjected to force
AR
#1 Theft
• The AR first requires that all the elements of theft under s 1(1) TA 1968
be satisfied.
• R v Robinson – defences to dishonesty under s 2(1) TA 1968 apply
#2 Force, threats of force or intention to put in fear
• There must additionally, immediately before or at the time of the theft, be
force against a person, fear of immediate force by a person or an intention
to put a person in fear of immediate force.
1. Uses force on a person; or
2. Puts a person in fear of being then and there subjected to force; or
3. Seeks to put a person in fear of being then and there subjected to force
#2.1 Use of force
• Force is a matter of fact for the jury; however, force does not require
violence (R v Dawson and James)
o A mere nudge here amounted to force in the eyes of the jury
• Force can be applied through property, but force against property must
cause force against the person (R v Clouden)
o Pulling on shopping bag = force to the person
• Very minimal force against the person, especially where indirect, is
unlikely to be sufficient (P & Others v DPP)
o D removing cigarette from V’s hand ~ no direct contact and
indirect contact very minimal, without resistance by V
o Court suggested that this is the same as for pickpockets
#2.2 Puts a person in fear
• No need for ‘fear’, V must merely apprehend that force will be then and
there used against them (R v DPP)
© Liam Porritt 2020 2
#2.3 Seeks to put in fear
• D may still be liable where a person is not aware that he is being
threatened with force, provided D intends to make that person apprehend
being then and there subjected to force (R v Taylor)
#3 On any person
• The threat or use of force need not be directed towards the person from
whom property is stolen
#4 Use or threat of force immediately before or at the time of stealing
• If the threat or use of force occurs after the theft has technically been
committed, we consider that the appropriation might be treated as a
‘continuous act’, in which case it is for the jury to decide when the
appropriation finishes (R v Hale)
o D puts hands over V’s mouth to stop her screaming
o Goes upstairs + takes jewellery box
o Tied her up, gagged her + told not to phone police or they would
do something to her little boy
o Hands over mouth sufficient force, but also allowed to take into
account tying up etc if deemed to be part of appropriation
MR
1. MR of theft
2. Intend to use force or put a person in fear of force in order to steal
a. Continuing act theory helpful where D starts stealing before force
used (R v Hale)
b. However, there must be coincidence between the use or threat of
force and the intention to permanently deprive (or s 6(1)
equivalent) (R v Vinall)
Ø Here, punching boy off bike; taking bike and disposing of
it later ~ absence of evidence (due to judicial
misdirection) that boys had ITPD at time of initially taking
bike, rather than merely at time of later abandonment
© Liam Porritt 2020 3
Burglary
Burglary is an offence under Theft Act 1968, s 9. We consider…
• S 9(1)(a) burglary, which is committed at the time of entry as a trespasser
with intention to steal, inflict GBH or criminal damage; there is no need
for the actual commission of an ulterior offence.
• S 9(1)(b) burglary, which is committed, following entry as a trespasser, at
the time of the (attempted) commission of theft or inflicting of GBH.
TA 1968, s 9(1)(a)
Actus Reus (AR)
1. D enters
2. A building or part of a building
3. As a trespasser
Mens Rea (MR)
4. Knowing / reckless as to entry as a trespasser
5. At time of entry, D intends to commit an ulterior offence in the building or part of the
building (s 9(2)):
a. Theft
b. GBH
c. Criminal damage
© Liam Porritt 2020 4
AR
• The AR of s 9(1)(a) burglary is entering a building or part of a building as
a trespasser.
Enters
• Partial presence is sufficient, i.e. a part of D’s body entering (R v Ryan)
o R v Ryan – head and arm through window sufficient, even though
he was stuck and thus unable to steal
o R v Brown – arm through broken shop window = sufficient
Building or part of building
• Building
o S 9(4) includes inhabited vehicle or vessel, whether the person
living there is present or not at time of offence
o Building must be a ‘structure of considerable size intended to be
permanent or at least endure for a considerable time’ (Stevens v
Gourley)
o B and S v Leathley – Freezer container detached from chassis,
resting on railway sleepers for two years w/ electricity, 25ftx7ft =
building
o Norfolk Constabulary v Seekings & Gould – Similar containers, still
on wheeled chassis behind supermarket for temporary storage
with electricity ≠ buildings ~ would have had to have been
inhabited
• Part of a building – question of fact (R v Walkington)
o Going into department store till area with three sided counter =
entering part of a building
Trespasser
• D is a trespasser if he enters building / part of a building in the possession
of another without consent of the other (R v Collins)
o Where at the time of entering a building (or part) a person is not a
trespasser, but later becomes one (e.g. staying longer than
expressly permitted), there may be no burglary (Smith and Hogan)
• D is also a trespasser where he is given consent to enter, but enters in
excess of the authority given to him (R v Jones & Smith)
© Liam Porritt 2020 5
MR
On the basis of facts known to D, D enters knowing that or being reckless as to
whether the entry was a trespass
• Under Jones, on the basis of facts known to D, D must know that OR be
reckless as to whether he is entering as a trespasser, i.e. in excess of his
permission.
o Knowledge OR
o R v G – recklessness
§ Subjectively aware of the risk that he is exceeding authority
§ Objectively unreasonable in the circumstances to take such
a risk
D must intend to commit an ulterior offence, under TA 1968, s 9(2) at the time of
entry
D, upon entry, intends (i.e. objective or purpose (R v Maloney)) to…
1. To steal from the building or part of the building (i.e. there is no offence
where D trespasses to hide in a supermarket cupboard, but has no
intention to steal from the cupboard, but instead from the supermarket);
and/or
2. To inflict GBH (i.e. ‘serious harm’ – R v Saunders) on any person in the
building or part of the building; and/or
3. To unlawfully damage the building or anything in the building or part of
the building
• NB – may be oblique intent (R v Woolin) where, e.g. D intends to remove
from V’s premises something that is D’s, but foresees that this is virtually
certain to cause CD.
• NB2 – D’s intent must be to commit one of the s 9(2) ulterior offences in
the building/part of the building that he enters as a trespasser.
• Conditional intent is sufficient (A-G’s References (Nos 1 & 2 of 1979) – i.e.
where D only intends to steal if there is something valuable to steal / to
cause GBH if someone is present
© Liam Porritt 2020 6
TA 1968, s 9(1)(b)
5 elements
1. D enters
2. Building / part of building
3. As trespasser
4. Knowing or being reckless as to entry as a trespasser
5. Once inside, do one of the following:
a. Commit theft
b. Commit attempted theft
c. Inflict GBH
d. Attempt to inflict of GBH
1-4
• See above and address in this order, rather than doing AR and MR.
Theft or attempted theft
• Full offence of theft or attempted theft (AR + MR) required
Inflicting GBH or attempting to inflict GBH
Inflicting GBH
• The current law is that, per the statutory wording and the Court of
Appeal’s obiter comments in R v Jenkins, mere infliction of GBH, as a level
of harm rather than an offence, is sufficient, without any MR relating to
the GBH.
• If this is followed,… state outcome.
o To inflict is to cause…
§ Factual causation (not) established, as ‘but for’… (R v White)
§ Legal causation: need not be the sole cause (R v Benge), but
must be a significant, meaning more than minimal (R v
Hughes) and operating (R v Pagett) cause of the harm.
• NB R v Hayward = thin-skull rule
• R v Latimer = transferred malice
o GBH is serious harm (R v Saunders).
• However, R v Jenkins is subject to academic criticism due to potential
liability where GBH is inflicted through a wholly unforeseeable event,
such as a sudden stroke on seeing an intruder (Smith and Hogan).
• Thus, the court could interpret s 9(1)(b) as requiring a GBH-related
offence: OAPA 1861, s 18, s20 or s 23.
o S 20 OAPA requires intention or recklessness as to the causing of
some harm (R v Savage; Parmenter).
© Liam Porritt 2020 7
Attempting to inflict GBH
• Act that is more than merely preparatory (s 1(1) CAA 1981)
• D intends to bring about GBH, as even though s 20 OAPA 1981 GBH can be
committed recklessly, the full attempted offence requires proof of
intention (R v Toole).
• Intention is given is ordinary meaning of purpose or objective (R v
Maloney).
© Liam Porritt 2020 8
Aggravated Burglary
Aggravated burglary is an offence under TA 1868, s 10.
It first requires burglary (see above).
Have with him
• For s 9(1)(a) burglary: It also requires D to have with him at the time of
the burglary i.e. on entry (R v Klass) any firearm, imitation firearm,
weapon of offence or explosive.
• For s 9(1)(b) burglary: It also requires D to have with him at the time of
the burglary i.e. on commission / attempted commission of ulterior
offence (R v O’Leary) any firearm, imitation firearm, weapon of offence or
explosive.
o May use R v Hale
(Imitation) Firearm
• S 10(1)(a):
o Includes airgun or airpistol
o ‘Imitation’ means having appearance of a firearm, whether capable
of discharge or not
Weapon of offence
• S 10(1)(b):
o Article made or adapted for use for causing injury or
incapacitating a person; or
o Article intended at time of burglary by the person having it with
him for causing injury or incapacitating a person
§ The intended use need not be at the time of the burglary,
merely an intention at the time of the burglary to use it at
some point for causing injury or incapacitation (R v Stones)
§ R v Kelly: using screwdriver to gain entry to house, then
stabbing homeowner, followed by theft of video =
aggravated burglary ~ at time of theft (i.e. burglary), he had
an article intended by him for causing injury
© Liam Porritt 2020 9
Blackmail
Theft Act 1968, s 21:
(1) A person is guilty of blackmail if, with a view to gain for himself or another or
with intent to cause loss to another, he makes any unwarranted demand with
menaces; and for this purpose a demand with menaces is unwarranted unless
the person making it does so in the belief—
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.
(2) The nature of the act or omission demanded is immaterial, and it is also
immaterial whether the menaces relate to action to be taken by the person
making the demand.
AR
1. Make demand
2. With Menaces
#1 Demand
• Nature of the act or omission demanded is immaterial (s 21(2))
• Demands can be express or implied, where an ordinary reasonable man
would understand that a demand is being made (R v Collister & Warhurst)
o V found importuning for homosexual purposes
o Talk of being in danger of arrest (with report to be prepared) +
money + meeting the following night, at which money was
received
o This is sufficient as a demand + if instilled fear of prosecution =
menaces
• Demands can be oral or written, and constitute a demand even if they are
not heard / received, as long as the letter is irrecoverable (R v Studer)
• Demand can be made when letter is posted, as long as posted in UK
(Treacy v DPP)
© Liam Porritt 2020 10
#2 With menaces (s 21(1))
• In general, no explanation of the meaning of ‘menaces’ need be given to
the jury because it is an ordinary word (R v Lawrence and Pomroy)
• It is irrelevant:
o Whether the menaces relate to action to be taken by the person
making the demand (s 21(2)).
o Whether the threat can in fact be carried out (R v Lambert)
• Liberally construed, not limited to threats of violence, but including
threats of any action detrimental to or unpleasant to the person
addressed (Thorne v Motor Trade Association)
• Objective test: the threats must be such that the mind of an ordinary
person of normal stability and courage might be influenced or made
apprehensive so as to accede unwillingly to the demand, on the basis
of circumstances known to D (R v Clear)
o E.g. Threat to tell wife of affair, where she already knows, but D
does not know that.
• Two cases where direction to the jury needed:
o Where the threats did not affect the person actually addressed, but
might affect the mind of an ordinary person of normal stability,
this is sufficient menace (R v Garwood)
o Where the threats would not have affected the mind of a person of
normal stability, but affected the mind of the victim, there will be
menaces where D was aware of the likely effect of his actions
upon V (R v Garwood)
© Liam Porritt 2020 11
MR
S 21(1) TA 1968:
1. Unwarranted demand with menaces
2. View to gain for himself or another, or with intent to cause loss to another
As blackmail is a specific intent offence (it may not be committed recklessly), D
may use evidence of his intoxication to show that he did not form the requisite
MR (DPP v Majewski).
#1 Unwarranted demand
• Unwarranted unless D does so in the belief:
o S 21(1)(a): That he has reasonable grounds for making the
demand; and
o S 21(1)(b): That the use of the menaces is a proper means of
reinforcing the demand
• Burden of proof on the prosecution
• Subjective test on the basis of D’s belief at the time of the demand (R v
Lambert)
• Accompanying a demand with a threat which itself amounts to a criminal
offence, which is known or suspected to be a criminal offence by D, will
never be warranted (R v Harvey)
• Proper = socially and morally acceptable (Criminal Law Revision
Committee and commentary from Smith & Hogan)
#2 View to a gain for himself or another, or intent to cause loss to another
• A gain can consist of money or some other property (s 34(2)(a)) obtained
in some way, e.g. a substance being injected into D (R v Bevans)
o Gain includes a job (R v Dzrium)
o Gain includes keeping what one already has (s 34(2))(a)(i))
o Loss includes not getting what one would otherwise get (s
34(2)(a)(ii)).

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