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R v Collins 1973 - Burglary (brief facts)
- D climbed ladder naked except for socks and perched on windowsill before entering and having sex with girl
- Charged with s.9(1)(a) burglary (entry with intent to rape)
- Denied entered the building as trespasser on the basis girl pulled him in - SOURCE 4
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Law prior to Collins 1973
- At common law the insertion of any part of the body into the building or structure, however small was enough for entry
- Davis 1823 Russ and Ry 499 - D. pushed in a window pane, and a part of his finger was observed to be inside the building, that was held to be entry
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Main critical point of Collins
- The 1968 Act is silent on the meaning of an entry
- It seems to have been assumed in Parliament that the common law rule would apply but Hansard wasn't available for consultation before Pepper v Hart.
- Judge directed that the entry must be 'effective and substantial' entry into the building before a conviction was possible
- No longer enough that any part of the building
- Source 4, line 5.
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Another critical point of Collins
- The interpretation of the word 'trespasser' in both s.9 (1)(a) and s.9(1)(a) has caused much legal discussion. - Source 4, Lines 10,11
- D is only a trespasser if D enters knowingly that they don't have permission/are exceeding the permission given. The CA believed that Collins was outside the window and therefore he was not guilty - Source 4, Lines 40-4
- Its considered inappropriate to use a civil law definitions in a criminal sense - Source 4, Lines 12-15 (shouldn't have used negligent in criminal law)
- The CA, in Collins favorable the meaning of trespasser defined as a criminal term rather than a civil term. So when D entered the building he did not enter as trespassed because he was pulled in. Source 4, Lines 33-35
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Court decision in Collins
The Court of Appeal, Criminal division, a binding and original precedent
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Further development in the law since Collins
- Brown 1985 - held that all was required was that D had made an 'effective' entry
- Ryan 1996 - upheld conviction of burglary and rejected his argument that his actions were incapable of amounting to an 'effective' entry in this case the D was stuck. Source 5, lines 15-24
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Collins Reform proposals
- It surely cannot be right to insist that the D must have gone so far into the building as to accomplish his unlawful purpose - to be 'effective'
- The effect of Collins would be to make it much harder to convict of burglary.
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Brown 1985
D leaned through shop window to reach goods inside - Convicted - Source 5
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Law prior to Brown 1985
Collins - D must have made an 'effective and substantial' entry into the building before a conviction was possible - Source 5, line 14
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Main critical point of Brown 1985
- CA held that all that was required was that D had made an 'effective' entry i.e effective in order to commit the ulterior offence
- It was correctly left to the jury and the conviction was upheld
- However unsatisfactory that such a crucial element of the AR of burglary is left to the jury to decide - Source 5, lines 8 -14
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Another critical point of Brown
- It surely cannot be right that the D must have gone so far into the building as to accomplish his unlawful purpose (this is what an 'effective' entry would require)
- D who enters through a ground floor window intending grievous bodily harm does not commit burglary if V happens to be on the fourth floor.
- So seems that under the 1968 Act it must be D's body that enter - goes back to common law explanation - Davis 1823 Russ and Ry and Source 5, lines 21 -23
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Court deciding decision Brown
The Court of Appeal
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Further development since Brown
In Ryan 1996 the Court of Appeal appeared to relax even the requirement for an 'effective' entry
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Reform proposals - Brown
Maybe best to accept the continued existence of the old common law rule
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R v Ryan 1996 - Burglary (brief facts)
D got stuck trying to break into house in middle of night with head and one arm inside building - Convicted although entry ineffective.
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Law prior to Ryan
- Held in R v Brown 1985 all that was required was that D made an 'effective' entry (effective in order to commit the ulterior offence)
- The entry need not necessarily be 'substantial'
- Source 5, lines 8-14
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Main critical point of Ryan
- CA upheld his conviction of burglary s9(1)(a) entry with intent to steal.
- Rejected his argument that was unable to steal anything
- The question was correctly left to the jury
- Source 5, lines 15-24
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Another critical point of Ryan
- It surely cannot be right that the D must have gone so far into the building as to accomplish his unlawful purpose (this is what an 'effective' entry would require)
- D who enters through a ground floor window intending grievous bodily harm does not commit burglary if V happens to be on the fourth floor.
- So seems that under the 1968 Act it must be D's body that enter - goes back to common law explanation - Davis 1823 Russ and Ry and Source 5, lines 21 -23
- How far these common law rules will guide the development of the law in future is unclear - Source 5, Lines 23, 24
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Court deciding decision Ryan
The Court of Appeal. (would it be appropriate for the Supreme Court to decide)
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Further development since Ryan
- Richardson and Brown - convicted of burglary using a mechanical digger to steal a cash dispenser by ripping it from the wall of the bank
- It may be that D must be present on the scene or on the job - if the instrument represent an extension of D's body that can be enough to amount to an 'entry.
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Reform proposals - Ryan
Accept the existing old common law rule
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Seeking and Gould 1986 Facts
Lorry trailer with wheels used for storage for over a year with access steps and electricity
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Law prior to Seekings and Gould
- The Larcency Act 1916 made no mention of 'vechicles' or 'vessels' in either source of the law
- The common law offence was abolished by Larcency Act 1916 was repealed by the Theft Act 1968
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Main critical point of Seekings and Gould
- The word 'vechicle' is not defined in the 1968 Act
- On the facts it was held that the lorry trailers were vehicles (not buildings) because they were still on wheels.
- The occupier must inhabit the vehicle or vessel i.e permanent, continuous occupation
- The trailers were not inhabited and so the D's were acquitted of burglary
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Another critical point of Seeking and Gould
- The word 'building' is not defined in the 1968 Act either.
- Courts followed previous case law of Stevens V Gourley 1859 said that a building was 'a structure of considerable size and intended to be permanent or at least to endure for a considerable time'
- Temporary moveable offices, workshops and stores have been held to be buildings but a tent probably not.
- B and S v Leathley 1979 Source 6 lines 16-18 - courts rejected defence that it was not a building because it did not have foundations.
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Court making the decision in Seeking and Gould
Norfolk Crown Court - not binding precedent
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Further developments since Seeking and Gould
- The judge has to rule whether or not there s evidence on which a reasonable jury could find the structure to be a building, vehicle or vessel.
- Such decisions do not set precedent.
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Reform proposal - Seeking and Gould
Whilst all building are protected by the law of burglary, vehicles and vessels are only protected when inhibited. Source 6 lines 15, 16.
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R v Walkington 1979 Facts
D opened till inside area of shop surrounded by three-sided counter
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Law prior to Walkington
No mention was to 'a part of a building' either at common law or under the Larceny Act 1916.
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Critical point of Walkington
- D was convicted of burglary, entry with intent to steal, contray to s9(1)(a) and the CA upheld conviction.
- It is enough if D enters 'part of the building' as a trespasser for example D may have permission to enter a shop, but not the stock-room or the manager's office.
- A ' part of a building' does not necessarily mean a separate room.
- A temporary physical division is enough if clearly marked out a par of a building into which D is not allowed to go
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Another critical point to Walkington
- The word 'part' has no precise meaning.
- Its significance is that a person may lawfully enters one part of a building yet be a trespasser on setting foot in another.
- This broadens the scope of the offence and should make it easier to successfully prosecute.
- Arguably the law is seen of illogicality here seen in Source 6, lines 25-29
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Court making the decision in Walkington
Court of Appeal, Criminal division
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Further developments since Walkington
- Whether the counter part of a building is a question of fact for a jury to decide
- Its unfortunate that one of the essential elements of the offence is left to the jury - such decisions do not set precedent.
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Reform proposals - Walkington
Should we scrap the requirement for s.9(1)(a) that the defendant has to enter a building/part of building as a trespasser
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R v Dawson and James 1977 Facts
One man pushed victim off balance so other could take wallet. Source 1, Lines 7-8
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Law Prior to Dawson and James
- Previously the word 'violence' had been used in the 1916 Act for robbery.
- But following advice from the Criminal Law Revision Committee and its recommendation, which largely became the 1968 Act, Parliament changed the word to 'force'
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Critical point to Dawson and James
- Lawton LJ in the Court of Appeal stated that 'force' under section 8 of the Theft Act 1968 was an ordinary word that is in common or ordinary usage. Source 2, Line 12
- The question in such cases on the charge of Robbery is whether the D used 'force on any person..' in order to steal - issue should be left to jury
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Another Critical point to Dawson and James
- Lawton LJ directed juries that they should not refer back to the old law (Larceny act) and judges should direct their attention to the words of the statute.- Source 2 Line 5
- The Act purpose was to put the law in simple language which juries would understand and which they themselves would use
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Court making the decision in Dawson and James
The case was decided in the Court of Appeal, Criminal Division.
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Further developments since Dawson and James
The appraoch was later confirmed in Clouden where the defendant wrenched a shopping bag from the victim's grasp - expanded the law to say force could be used against property held by the victim
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Reform Proposals - Dawson and James
- The degree of force required to turn a theft into robbery is slight, yet the different in punishment ranged from the maximum of 7 years imprisonment to life for robbery.
- Would the old common law word 'violence' have been better?
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R v Hale 1978 Facts
D and accomplice broke into house. Once stopped woman screaming and tied her up, while other stole property upstairs. Source 3, Lines 1-7
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Law Prior to Hale
- Under the Theft Act 1968 the force or threat must be used at or immediately before the theft. Source 1, Lines 1-4
- This was clearly Parliaments intention.
- Force used after the theft is not robbery, a view that receives further support from the requirement in s.8 that the force be used 'in order to steal'
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Critical Point in Hale
- Gomez said that the appropriation is an instantaneous act to enable conviction the court came up with the idea of a 'continuing appropriation' so the stealing starts when they take the box but it does not end at that point
- Exactly when it ends is unclear
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Another critical point in Hale
Its up to the jury to decide when the appropriation ends - Source 3, line 26
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Court making the decision in Hale
The Court of Appeal, Criminal Division.
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Further development since Hale
- Force used to retain possession of stolen property not obtained by force is not normally thought of as robbery.
- So Hale has changed the law in a fairly significant way.
- The concept of a 'continuing' appropriation makes robbery much broader in scope
- Its a significant departure from the common law but without any statutory authority
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Reform proposal - Hale
- An alternative approach would be for Parliament to include force/threat of force used 'immediately after' the theft in the definition of robbery.
- The Larceny Act 1916 included this and indicated clear deficiencies in the drafting of the Theft Act 1968
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R v Robinson 1977 Facts
D owed £7 and during struggle D took dropped £5 note he believed man's wife owed
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Law Prior to Robinson
- Turner (no2) (1971) claimed he honestly believed he has the legal right to take back his car from the garage and so had not acted dishonestly under s.2(1)(a).
- The court upheld his conviction and 'the whole test of dishonesty is the mental element of belief.'
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The main critical point in Robinson
- Robbery is an aggravated form of theft. If there is not theft there is no robbery.
- The 1968 Act did not define dishonesty.
- Section2(1) define threes situations in which an appropriation of property is not to be regarded as dishonest.
- Under s.2(1)(a) the defendant is not dishonest if he believes (whether reasonable or not) he has a legal right to do the act alleged to amount to theft - D's conviction was quashed.
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Another critical point in Robinson
- The D may still be guilty of an assault if D's claim that he believed himself to be entitled to the property appropriated does not of itself justify his use of force
- R v Forrester 1992 - was convicted as he knew he had no right to the items themselves and so could not claim that he was not dishonest under s.2(1)(a)
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Court making the decision in Robinson
The Court of Appeal
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Further developments since Robinson
In Hall 2008 - it was made clear that some evidence of the belief in right to the property is needed before the judge must leave it to the jury
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Reform proposals - Robinson
- The law denied the protection of robbery to an entirely innocent party.
- The D knew that taking the money by force was dishonest but this wasn't the test - maybe it should be?
- This case shows that it is not always appropriate to import definitions from the law of theft and point to deficiencies in the drafting of the Theft Act.
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