The special study

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The special study
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2014-06-14 09:01:39
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  1. 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
  2. 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
  3. 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.
  4. 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
  5. Court decision in Collins
    The Court of Appeal, Criminal division, a binding and original precedent
  6. 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
  7. 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.
  8. Brown 1985
    D leaned through shop window to reach goods inside - Convicted - Source 5
  9. 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
  10. 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
  11. 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
  12. Court deciding decision Brown
    The Court of Appeal
  13. Further development since Brown
    In Ryan 1996 the Court of Appeal appeared to relax even the requirement for an 'effective' entry
  14. Reform proposals - Brown
    Maybe best to accept the continued existence of the old common law rule
  15. 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.
  16. 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
  17. 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
  18. 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
  19. Court deciding decision Ryan
    The Court of Appeal. (would it be appropriate for the Supreme Court to decide)
  20. 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.
  21. Reform proposals - Ryan
    Accept the existing old common law rule
  22. Seeking and Gould 1986 Facts
    Lorry trailer with wheels used for storage for over a year with access steps and electricity
  23. 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
  24. 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
  25. 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.
  26. Court making the decision in Seeking and Gould
    Norfolk Crown Court - not binding precedent
  27. 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.
  28. 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.
  29. R v Walkington 1979 Facts
    D opened till inside area of shop surrounded by three-sided counter
  30. Law prior to Walkington
    No mention was to 'a part of a building' either at common law or under the Larceny Act 1916.
  31. 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
  32. 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
  33. Court making the decision in Walkington
    Court of Appeal, Criminal division
  34. 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.
  35. 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
  36. R v Dawson and James 1977 Facts
    One man pushed victim off balance so other could take wallet. Source 1, Lines 7-8
  37. 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'
  38. 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
  39. 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
  40. Court making the decision in Dawson and James
    The case was decided in the Court of Appeal, Criminal Division.
  41. 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
  42. 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?
  43. 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
  44. 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'
  45. 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
  46. Another critical point in Hale
    Its up to the jury to decide when the appropriation ends - Source 3, line 26
  47. Court making the decision in Hale
    The Court of Appeal, Criminal Division.
  48. 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
  49. 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
  50. R v Robinson 1977 Facts
    D owed £7 and during struggle D took dropped £5 note he believed man's wife owed
  51. 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.'
  52. 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.
  53. 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)
  54. Court making the decision in Robinson
    The Court of Appeal
  55. 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
  56. 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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