Offences against property

Robbery is defined in s8 Theft Act 1968. Its actus reus has the following elements.

First, there must be a completed theft — that is, all five elements of theft under s1 Theft Act 1968 (appropriation, property, belonging to another, dishonesty and intention to permanently deprive) must be present. Without a theft there can be no robbery.

Secondly, the defendant must use force on any person, or put or seek to put any person in fear of being then and there subjected to force. The amount of force needed is small — even a nudge or push will suffice (R v Dawson), and wrenching a bag from a victim's hand has been held to be force (R v Clouden).

Thirdly, the force or threat must be used immediately before or at the time of the stealing. Because theft is complete the moment appropriation occurs (Corcoran v Anderton), force applied at that moment qualifies.

Finally, the force must be used in order to steal — that is, for the purpose of carrying out the theft, not for some unconnected reason.

The issue is whether Ben is liable for theft under s1 Theft Act 1968, which requires five elements: appropriation, property, belonging to another, dishonesty and intention to permanently deprive.

Appropriation (s3). Appropriation is any assumption of the rights of an owner, and this can occur even where the owner consents (R v Gomez). Here, by taking the chocolate bar from the shelf and putting it in his pocket, Ben assumed the rights of the owner, so there is an appropriation.

Property (s4). 'Property' includes goods of all kinds. A chocolate bar is tangible personal property under s4, so this element is satisfied.

Belonging to another (s5). Property belongs to another if that person has possession or control of it (s5(1)). Until Ben pays, the chocolate bar belongs to the shop, which has possession and control. This element is satisfied.

Dishonesty (s2). None of the s2(1) defences applies — Ben has no legal right to the bar, no belief in the owner's consent and no belief the owner cannot be found. Dishonesty is then judged by the test in Ivey v Genting Casinos [2017]: first, what was the defendant's actual state of knowledge or belief; secondly, was the conduct dishonest by the standards of ordinary decent people? Ben knew he had not paid, and taking goods without paying is dishonest by ordinary standards. (The old Ghosh test no longer applies.) Ben is dishonest.

Intention to permanently deprive (s6). Ben means to eat the chocolate bar later, so he intends to treat it as his own to dispose of and never return it. This element is satisfied.

Conclusion. As all five elements of s1 Theft Act 1968 are made out, Ben is liable for theft.

The issue is whether Priya is liable for burglary under s9 Theft Act 1968, which has two limbs: s9(1)(a) (entering as a trespasser with intent to steal, inflict GBH or cause criminal damage) and s9(1)(b) (having entered as a trespasser, stealing/attempting or inflicting/attempting GBH).

Entry. There must be an effective entry into a building (R v Brown; R v Collins; even a partial entry can suffice — R v Ryan). Priya physically entered the flat, so entry is established.

A building or part of a building. A flat is plainly a 'building' (cf R v Walkington on entering a prohibited part of a building). Satisfied.

Trespasser. A person is a trespasser if they enter without permission, or if they exceed the permission they were given (R v Smith and Jones — sons who entered to steal exceeded the permission to enter and so were trespassers). Priya had been banned from the flat, so she has no permission to be there and clearly enters as a trespasser. Using a spare key does not give her permission.

Applying s9(1)(a). At the moment of entry Priya intended to take property from the flat. s9(1)(a) burglary is complete on entry if she entered with intent to steal — it does not matter whether she actually took anything. The only question is whether her intent was to steal, which requires the theft elements, including dishonesty. She believes she has a right to take 'back' the gifts; however, a valid gift transfers ownership (cf R v Hinks), so the items legally belong to her ex. Whether she is dishonest is judged by Ivey v Genting Casinos [2017] — applying her genuine (if mistaken) belief about her right to the property. If she genuinely believed she had a right in law to the goods, s2(1)(a) may negate dishonesty; but a belief that she is morally entitled to gifts she no longer owns will not, by ordinary standards, prevent dishonesty.

Applying s9(1)(b). Having entered as a trespasser, Priya did steal the necklace and games console (appropriation under s3 of property under s4 belonging to her ex under s5, dishonestly under Ivey, with intent to permanently deprive under s6). If dishonesty is established, s9(1)(b) is also made out.

Conclusion. Priya entered as a trespasser (banned) and stole property, so she is liable for burglary under s9(1)(b) (and s9(1)(a) if she had the intent on entry), provided the Ivey dishonesty test is satisfied — which it likely is, since a gift transfers ownership and she has no legal right to reclaim it.

The issue is whether Carl is liable for making off without payment under s3 Theft Act 1978. The offence requires four elements: (1) the defendant makes off; (2) from the spot where payment is required or expected; (3) without having paid as required or expected; and (4) with intent to avoid payment of the amount due, knowing that payment on the spot is required.

Making off. 'Making off' means leaving — departing from the place where payment should be made. Carl slipping out of the restaurant door is plainly making off.

From the spot where payment is required or expected. In a restaurant, payment is required at the table or till before leaving. The 'spot' is the restaurant where the bill must be settled. Carl made off from that spot by leaving the premises.

Without having paid as required or expected. Carl left the £40 bill unpaid, so this element is satisfied. The goods/service (the meal) must have been legitimately supplied and payment required on the spot, which is the case here.

Intent to avoid payment. The mens rea requires an intention to permanently avoid payment, not merely to delay it (R v Allen — a defendant who intended only to defer payment was not guilty). Here Carl intends 'never to return', so he intends to avoid payment permanently. He also knows that payment on the spot is required. This element is satisfied.

Conclusion. All four elements of s3 Theft Act 1978 are made out — Carl made off from the spot where payment was expected, without paying, intending permanently to avoid the £40 due. Carl is therefore liable for making off without payment. (Theft is unlikely to fit neatly because he did not appropriate the meal dishonestly at the point of consuming it; making off without payment is the appropriate offence for 'bilking'.)

Several offences arise: burglary (s9 Theft Act 1968), theft (s1), potentially robbery (s8), and criminal damage (s1(1) Criminal Damage Act 1971). Each must be considered in turn.

Burglary (s9 TA 1968). Dev forced open the back door and entered (effective entry — R v Brown, R v Collins) a 'building' (the shop), as a trespasser (no permission to enter; cf R v Smith and Jones). On entry he intended to steal cash, so s9(1)(a) is complete the moment he entered. Having entered, he then stole the £300, so s9(1)(b) is also made out.

Theft (s1 TA 1968). The £300 satisfies all five elements: appropriation of the cash from the till (s3, R v Gomez); property — money (s4); belonging to the shop (s5); dishonesty (no s2(1) defence; dishonest by ordinary standards under Ivey v Genting Casinos [2017]); and intention to permanently deprive (s6). Theft is established (it is also the ulterior offence for the burglary).

Robbery (s8 TA 1968)? Robbery requires force used immediately before or at the time of stealing and in order to steal. Here the issue is the timing and purpose of the shove. Dev shoved the shopkeeper to escape, after the theft was complete. If the appropriation was already finished, force used merely to get away is not robbery, because it was not used 'in order to steal'. However, appropriation can be treated as a continuing act while the theft is ongoing (cf the approach in R v Hale), and force used during that continuing course may qualify. On balance, because the force here was applied to escape rather than to carry out the taking, robbery is arguable but not clearly made out; the safer analysis is theft + a non-fatal offence.

Non-fatal offence for the shove. Shoving the shopkeeper hard against a wall could amount to battery / ABH (s47 OAPA 1861) if injury results — but this falls outside offences against property and is noted only briefly.

Criminal damage (s1(1) CDA 1971). Throwing a brick through the shop window destroys or damages property belonging to another (the shopkeeper), done intentionally (he threw it deliberately). Basic criminal damage under s1(1) is made out. (There is no aggravation under s1(2) as no life was endangered by the breaking window.)

Conclusion. Dev is liable for burglary (s9(1)(a) and (b)), which subsumes the theft, and separately for criminal damage (s1(1) CDA 1971). Robbery (s8) is unlikely because the force was used to escape, not 'in order to steal'; the shove may instead found a non-fatal offence against the person.

Appropriation is the conduct element (actus reus) of theft, defined in s3(1) Theft Act 1968 as 'any assumption by a person of the rights of an owner'. This essay argues that the courts HAVE expanded appropriation very widely — to the point of capturing valid gifts and consensual transfers — but that this breadth is largely tolerable because the other elements of theft, particularly the Ivey dishonesty test and intention to permanently deprive, do the real work of confining liability.

The original narrow understanding. When the 1968 Act was passed, 'assumption of the rights of an owner' was thought to require some act against the owner's wishes. The early case of R v Morris held that appropriation involved an assumption of any of the owner's rights (e.g. swapping price labels), already loosening the requirement that the whole bundle of rights be assumed.

The major expansion — Gomez. The decisive widening came in R v Gomez, where the House of Lords held that there can be an appropriation even where the owner consents to the taking. Gomez obtained goods by deceiving a manager into accepting worthless cheques; the consent obtained by deception was held to be an appropriation. This collapsed any meaningful requirement that the act be 'against' the owner's will and brought a vast range of consensual transactions within the reach of theft.

The furthest reach — Hinks. The expansion peaked in R v Hinks, where the House of Lords held that even the receipt of a valid, indefeasible gift could amount to appropriation. The defendant accepted large sums from a man of limited intelligence; although in civil law the gifts were valid and ownership had passed to her, the criminal law treated the acceptance as an appropriation. This is the point critics seize on: conduct that is lawful in civil law (receiving a gift you now own) is nonetheless capable of being theft.

The case FOR the statement (appropriation is too wide). There is real force in the criticism. First, Hinks produces a startling conflict between civil and criminal law: a person can be the lawful owner of property yet be convicted of stealing it. Secondly, the breadth means that the actus reus of theft is satisfied by entirely ordinary conduct — accepting a gift, buying goods — so that the line between honest and criminal behaviour is drawn ENTIRELY by the dishonesty element, placing enormous weight on a single, somewhat vague concept. Thirdly, it offends the principle that the criminal law should be certain: ordinary people cannot easily predict when accepting property becomes theft.

The case AGAINST the statement (the breadth is justified). On the other hand, the width of appropriation is defensible. The purpose of a broad actus reus is to catch the genuinely culpable while leaving the filtering to mens rea. Lord Steyn in Hinks expressly reasoned that the safeguards lie in dishonesty and intention to permanently deprive, not in a narrow appropriation. The Ivey v Genting Casinos [2017] test now governs dishonesty: conduct is only theft if it is dishonest by the standards of ordinary decent people, applied to the defendant's genuine beliefs. An ordinary person receiving a normal gift is not dishonest, so they are not guilty — the broad appropriation does not, in practice, criminalise innocent conduct. Moreover, a narrow appropriation requirement would let exploitative conduct (as in Hinks, the abuse of a vulnerable donor) escape liability, which would be a worse outcome.

Evaluation and judgement. The statement is therefore only partly correct. It is right that appropriation has been stretched dramatically — from Morris through Gomez to Hinks — so that, taken in isolation, the actus reus now catches conduct (consensual transfers, valid gifts) that 'ought not' to be criminal. But it is wrong to conclude that the offence over-criminalises, because the dishonesty filter (now Ivey) and the intention to permanently deprive confine liability to the genuinely blameworthy. The strongest objection is not over-criminalisation but uncertainty and the civil/criminal clash: making dishonesty carry almost the whole moral weight of theft is a precarious design, and Hinks's collision with civil property law is conceptually untidy. On balance, appropriation is indeed too wide as a standalone concept, and reform clarifying its relationship with civil ownership would be desirable — but the practical injustice the statement fears is largely prevented by the dishonesty requirement.