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According to Reed and Fitzpatrick.. - Discuss whether burglary is now in serious need of reform because of s.9 of the Theft act provides no definition of the offence PLAN
- YES - Definition of entry
- YES - Definition of building
- YES - Definition of the phase 'part of a building'
- NO - Defintion of Trespass
- NO - Clear distinction between MR
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Definition of Entry
- No defined in the Theft Act 1968, act is silent on its meaning - Left to the courts to define
- Collins in which entry had to be 'substantial and effective' Source 4 line 36.
- Changed in Brown 1985 in which it was the definition was changed to merely 'effective' - Source 5 line 10-11
- Ryan changed it to meaning an effective physical entry rather than effective to commit one of the ulterior offence - Source 5 lines 20-22
- All these cases take us back to the old common law position in which any entry of the body was enough - Davis 1823
- Considerable uncertainly here.
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Definition of building
- Not defined in the Act
- Some earlier case law in a different context that does define the word - its scope is uncertain
- Stevens V Gourley 1855 - ' a structure of considerable size'
- This uncertainty had led to problem in distinguishing a building from a vechicle or vessel - Seekings & Gould and Leathley
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The phrase 'part of a building'
- No clear definition
- A part of a building can include rooms for example but also temporary division - Walkington 1979 - Source 6, Lines 22-29
- Lack of clear definitions introduces illegalities.
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The definition of trespass
- Defined fairly clear in Collins - before it wasn;t clear if burglary required criminal trespass or civil trespass (in other word whether a negligent entry would be enough for a conviction - Source 4, Lines 13-15)
- The CA clarified that subjective MR is requires for trespass in burglary - the D must know he or she is entering without permission or in excess of the permission given - Smith and Jones 1976
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Clear distinction between MR
- Clear distinction between MR for s.9(1)(a) - Source 6 lines 3,4 and s.9(1)(b) - Source 6, lines 5-7.
- s.9.(1)(a) the D must enter with intent to commit one of the ulterior offences - its been clarified that a condition intent is enough - AG ref No1&2 of 1979
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Andrew Ashworth (2002) has carried out a study of how the law on robbery is in working practice. He observes that the offence of robbery is extremely broad source 1, lines 23, 24.- Discuss this
- Broad - The word force
- Broad - The word appropriation
- Broad - The change in when force can be used
- Narrow- Robinson
- Reform
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The word force
- Has been interpreted very widely wasn't parliament intention that the word should have such a broad meaning - Source 1, lines 6-8 and the whole of source 2 - Dawson and James
- Extended in Clouden 1987 to include the use of force on property held by the V
- Unfair to treat armed robbers and street robbers who use a minimum of force in the same way
- But provides an effective detterent and persevers incentive - having such a broad offence may actually encourage people to commit more serious forms of robbery because they have the same maximum sentence in each case.
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The word appropriation
- Has also been interpreted very widely
- Appropriation is defined in s.3 of the Theft Act 1968 as 'any assumption by a person of the rights of an owner amounts to an appropriation'
- Arguably parliament meant that all the rights of ownership must be assumed by the defendant but that wasn't the approach of the courts
- Morris 1983 - it was held by the HofL that assuming a right of ownership was enough
- Makes it easier to convict people of robbery - Corcaran v Anderton 1980 - The D tugged at V's bag but the bag was dropped and the Ds ran away with out it - following decision in Morris offence of robbery was complete at this point.
- Arguable should this not have been an attempted robbery and not the full offence because the V didnt suffer any loss of property - fair labeling issue?
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Change in when force can be used.
- In s.8 of the Theft Act it says that the force for robbery must be sued ‘at or immediately before’ the theft, source 1 lines 1-4.
- This created an obvious loop hole - on a literal reading clearly excluding force being used after theft had happened - Hale source 3 lines 1-7.
- The court invented the concept if the ‘continuing appropriation’ to solve problem seen in source 3 lines 26,27.
- The appropriation is continued for as long as the D’s are ‘on the job’ and it’s up to the jury to decide when it ends.
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Critisms of the change in force.
- This protects the public by catching people who are essentially committing robbery but it’s bad because it make it unclear when the offence ends shown in Atakpu and Abrahams.
- We now have two different terms of appropriation, one for theft and one for robbery which complicates the law.
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Robinson
- Narrows the offence of robbery in which the defendant was acquitted of robbery despite using force.
- This was because it was held that the D hadn’t been dishonest which leaves a lacuna in the law.
- As it leaves people vulnerable to offenders who take property by force but without the Means Rea for theft for example bailiffs and unscrupulous borrowers of property.
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Reform
- To prevent this shouldn’t we have two separate offences of robbery.
- One triable either way offence for cases like Dawson and James and one reserved serious cases of armed robbery for a separate indictable category of offence triable only in crown courts shown in Stanischewski
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