Essays for special study
Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
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
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.
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
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.
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
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
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
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.
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?
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.
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.
- 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.
- 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
Home > Flashcards > Print Preview