Notes · LawUK · A-Levels

Property Offences and Preliminary Offences

This topic covers the property offences of theft and robbery under the Theft Act 1968, analysing each element of theft and how robbery builds on it, together with the preliminary (inchoate) offence of attempt under the Criminal Attempts Act 1981.

4 sections~17 min reading time3 competenciesLevel Standard 3 · Advanced 1

T·101010 / 16

Exam profile

AO1 · Demonstrate knowledge and understanding of theft, robbery and criminal attemptsAO2 · Apply the elements of the property and preliminary offences to a factual scenarioAO3 · Analyse and evaluate the law on theft, especially appropriation and dishonesty, and on attempts

Operators:explainapplyanalyseevaluateadvise

basic level

AS students should be able to state the five elements of theft and apply them to simple facts.

higher level

Full A-Level answers apply the definitional sections of the Theft Act 1968, the modern Ivey test of dishonesty, and the 'more than merely preparatory' test for attempts.

Depth

Text

Contents · 4 sections

Property Offences and Preliminary Offences

Theft: the actus reus#

StandardAQA 7162/1 - Property offencesDfE GCE Law subject content

The five elements of theft

Fig. 1All five elements of section 1 must be proved; the first three form the actus reus, the last two the mens rea.

Theft is defined by section 1 of the Theft Act 1968 as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. The definition has five elements, three forming the actus reus (appropriation, property, belonging to another) and two the mens rea (dishonesty, intention to permanently deprive). Sections 2 to 6 of the Act define each element, and a theft charge requires all five to be proved.

Appropriation is defined by section 3 as any assumption of the rights of an owner. It is not limited to taking away; assuming any one of the rights of an owner - such as selling, using, destroying or offering for sale - suffices (R v Morris (1983)). Appropriation can occur even where the owner consents to the taking: in Lawrence v Metropolitan Police Commissioner (1972) a taxi driver who took more than the correct fare from a foreign passenger who held out his wallet had appropriated the money, and in R v Gomez (1993) the House of Lords confirmed that there can be an appropriation even where the owner consents, if that consent is obtained by fraud. The point was pushed further in R v Hinks (2001), where the acceptance of a gift was held capable of being an appropriation, so that a person could steal property that had been validly given to them.

Property is defined by section 4 to include money and all other property, real or personal, including things in action (such as a bank balance) and other intangible property. There are limits: land generally cannot be stolen except in defined circumstances, and wild plants and wild creatures not in captivity are generally excluded. Belonging to another is defined by section 5 as property in the possession or control of another, or in which another has a proprietary right or interest; ownership in the ordinary sense is not required. In R v Turner (No 2) (1971) a man was convicted of stealing his own car because he took it from a garage that had possession and control of it. Section 5(3) provides that where property is handed over subject to an obligation to deal with it in a particular way, it is treated as belonging to the other (Davidge v Bunnett).

For evaluation, the actus reus of theft, especially appropriation, has generated controversy. The decisions in Gomez and Hinks mean that appropriation covers situations - obtaining property with the owner's consent, or even by valid gift - that overlap with the civil law and arguably criminalise conduct that transfers a good title in civil law. Critics argue this makes the mens rea, especially dishonesty, do almost all the work of distinguishing theft from an innocent transaction. A strong answer applies each element accurately and can evaluate the breadth of appropriation.

Worked example

Worked problem question: the actus reus of theft

D picks up a laptop from a shop display, conceals it and walks toward the exit. Advise on whether the actus reus of theft is present.

Issue
Whether D has appropriated property belonging to another.
Rule / authority
Theft (s.1 Theft Act 1968) requires appropriation (assumption of an owner's rights - s.3; R v Morris), of property (s.4), belonging to another (s.5).
Application
The laptop is property under s.4 and belongs to the shop under s.5. By picking it up, concealing it and moving toward the exit, D assumes the rights of an owner, which is an appropriation under s.3 following Morris; a physical removal from the premises is not required.
Conclusion
The actus reus of theft is established; liability then turns on the mens rea of dishonesty and intention to permanently deprive.

Result: The answer applies the three actus reus elements with authority and correctly identifies appropriation without a completed removal.

Typical mistakes

Treating appropriation as requiring a physical taking; assuming any right of an owner suffices, even with the owner's consent (Gomez, Hinks).
Assuming a person cannot steal their own property; they can if another has possession or control (Turner (No 2)).

Active revision

D takes his own bicycle from a repair shop without paying the bill, believing he is entitled to it. Advise on the actus reus of theft.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Theft: the mens rea#

StandardAQA 7162/1 - Property offencesDfE GCE Law subject content

The mens rea of theft has two elements: dishonesty and the intention to permanently deprive. Dishonesty is not fully defined by the Act, but section 2 sets out three situations in which a defendant is not dishonest: where they believe they have a legal right to the property, where they believe the owner would consent, or where they believe the owner cannot be found by taking reasonable steps. Section 2(2) adds that a willingness to pay for the property does not by itself prevent a finding of dishonesty.

Where none of the section 2 situations applies, the jury must decide whether the defendant was dishonest. For many years the test came from R v Ghosh (1982), which had a subjective second stage, but the Supreme Court in Ivey v Genting Casinos (2017) held that the correct test is objective, and this was confirmed for the criminal law in R v Barton and Booth (2020). The court first ascertains the defendant's actual state of knowledge or belief as to the facts, and then decides whether the conduct was dishonest by the standards of ordinary decent people. There is no separate requirement that the defendant realised that ordinary people would regard the conduct as dishonest.

The intention to permanently deprive is defined with the help of section 6. A mere borrowing is not theft, because there is no intention to deprive permanently, but section 6 extends the concept: an intention to treat the thing as one's own to dispose of regardless of the owner's rights counts, and a borrowing may amount to an outright taking if it is for a period and in circumstances making it equivalent to an outright taking or disposal. In R v Lloyd (1985) borrowing films to copy them and returning them was not theft, because the films were returned with 'all their goodness and virtue' intact; by contrast, in R v Velumyl (1989) a defendant who took money from a safe intending to repay an equivalent sum later had the intention to permanently deprive, because he could not return the very same notes and coins.

For evaluation, the move to the objective Ivey test of dishonesty is generally welcomed for removing the confusing subjective limb of Ghosh and making dishonesty easier to apply, though some argue it risks convicting a defendant who did not personally regard their conduct as dishonest. Because the breadth of appropriation places so much weight on dishonesty, the test of dishonesty is central to the fairness of the law of theft. A strong answer applies the section 2 situations, then the Ivey test, and section 6, in that order.

Worked example

Worked problem question: dishonesty and intention to permanently deprive

D takes 50 pounds from the till intending to replace it with his own money next week. Advise on the mens rea of theft.

Issue
Whether D is dishonest and has the intention to permanently deprive.
Rule / authority
Dishonesty: not dishonest in the s.2 situations, otherwise the objective Ivey v Genting Casinos (2017) test. Intention to permanently deprive (s.6): taking money intending to repay a different equivalent sum is an intention to permanently deprive (R v Velumyl (1989)).
Application
None of the s.2 beliefs applies. On the Ivey test, taking money from the till is dishonest by ordinary standards. Intending to repay with different notes is an intention to permanently deprive on the Velumyl principle, because D cannot return the very same money.
Conclusion
D has both elements of the mens rea; with the actus reus present, D commits theft.

Result: The answer applies the Ivey test and the Velumyl rule to establish the mens rea despite D's intention to repay.

Typical mistakes

Applying the old subjective Ghosh test; Ivey v Genting Casinos (2017) established an objective test, confirmed in Barton and Booth (2020).
Treating any borrowing as theft; there must be an intention to permanently deprive, which a borrowing generally lacks (Lloyd).

Active revision

D takes a colleague's umbrella intending to return it after the rain stops. Advise on whether D has the mens rea for theft.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Robbery#

StandardAQA 7162/1 - Property offencesDfE GCE Law subject content

Robbery = theft + force

Fig. 2Robbery is an aggravated theft: a completed theft plus force used in order to steal.

Robbery is defined by section 8 of the Theft Act 1968: a person is guilty of robbery if they steal, and immediately before or at the time of doing so, and in order to do so, use force on any person or put or seek to put any person in fear of being then and there subjected to force. Robbery is therefore an aggravated form of theft, and the first requirement is that a completed theft has taken place - all five elements of theft must be present. If any element of theft is missing (for example, if the defendant honestly believed they had a right to the property), there can be no robbery.

The force (or threat of force) may be slight. In R v Dawson and James (1976) nudging a victim so that he lost balance while his pocket was picked was capable of being force, a question for the jury. In R v Clouden (1987) wrenching a shopping bag from the victim's grip was held to be force used on the person, not merely on property. The force must be used or threatened in order to steal, so force used for some other purpose, or force used only after the theft is complete and unconnected with it, does not turn a theft into robbery.

Timing is important: the force must be used immediately before or at the time of the theft. Because appropriation can be a continuing act, the courts take a broad view of when the theft is 'at the time'. In R v Hale (1979) the defendants' appropriation was treated as continuing while they tied up the householder after taking the jewellery, so force used at that point was 'at the time' of the theft. In Corcoran v Anderton (1980) the offence was complete when force was used and the bag was momentarily seized, even though the defendants ran off without it, because the theft (appropriation) had occurred with force.

For evaluation, robbery is a serious, indictable offence carrying a maximum of life imprisonment, which reflects the combination of theft with force or the threat of force. The main difficulties concern the low threshold of 'force' (so that a minor jostle can elevate a pickpocketing into robbery) and the treatment of appropriation as continuing, which extends the window in which force converts theft into robbery. A strong answer first establishes a completed theft, then analyses the force, its purpose and its timing.

Worked example

Worked problem question: robbery

D grabs a handbag, and when the owner resists, pulls it forcibly from her grasp and runs off with it. Advise on whether D commits robbery.

Issue
Whether the theft is accompanied by force used in order to steal, so as to constitute robbery.
Rule / authority
Robbery (s.8 Theft Act 1968) requires a completed theft plus force, or the threat of force, used on a person immediately before or at the time of the theft and in order to steal. Wrenching an item from a victim's grip is force on the person (R v Clouden (1987)).
Application
There is a completed theft: dishonest appropriation of the bag, property belonging to another, with intention to permanently deprive. Pulling the bag forcibly from the owner's grasp is force used on the person in order to steal, at the time of the theft, following Clouden.
Conclusion
D commits robbery, because the theft was accompanied by force used on the victim in order to steal.

Result: The answer first establishes a completed theft, then applies the force, purpose and timing requirements with authority.

Typical mistakes

Finding robbery where the underlying theft is incomplete; robbery requires all five elements of theft plus force.
Overlooking the requirements that the force be used in order to steal and immediately before or at the time of the theft.

Active revision

D snatches V's phone from her hand and, when she grabs his arm, shoves her away and runs off. Advise on whether D commits robbery.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

Criminal attempts#

AdvancedAQA 7162/1 - Preliminary offencesDfE GCE Law subject content

Is it an attempt?

Fig. 3An attempt needs the intention to commit the offence and an act that goes beyond mere preparation.

A criminal attempt is a preliminary (inchoate) offence: the defendant tries to commit an offence but does not complete it. The law criminalises attempts so that those who set out to commit crimes can be convicted even where, by luck or intervention, the full offence does not occur. Attempt is defined by section 1 of the Criminal Attempts Act 1981: a person is guilty of an attempt if, with intent to commit an indictable offence, they do an act which is more than merely preparatory to the commission of the offence.

The actus reus is an act that is more than merely preparatory to the full offence; mere preparation is not enough. Where exactly conduct crosses this line is a question of fact, and the cases illustrate the boundary. In R v Gullefer (1990) the Court of Appeal set out the test. In R v Geddes (1996) a defendant found in the boys' toilets of a school with items suggesting he intended to abduct a pupil had not committed an attempt, because he had not yet moved from planning and preparation to the execution of the offence - he had not tried to commit it. By contrast, in R v Jones (1990) a defendant who got into the victim's car and pointed a loaded gun at him had done acts more than merely preparatory to murder, even though further steps (releasing the safety catch and pulling the trigger) remained.

The mens rea of attempt is intention to commit the full offence. For most offences the defendant must intend the consequences of the completed crime; for attempted murder, the defendant must intend to kill (an intention to cause grievous bodily harm, which suffices for murder, is not enough for attempted murder). A defendant can be guilty of attempting the impossible: in R v Shivpuri (1987) the House of Lords, using the Practice Statement to overrule its own recent decision in Anderton v Ryan (1985), held that a defendant who did acts more than merely preparatory to dealing in what he believed to be prohibited drugs was guilty of an attempt, even though the substance was in fact harmless, because he intended to commit the offence and acted on that intention.

For evaluation, the chief difficulty is the vagueness of the 'more than merely preparatory' test, which leaves considerable uncertainty about when liability begins, as the contrast between Geddes and Jones shows. The requirement of intention, and the rule that impossibility is no bar (Shivpuri), are generally regarded as principled, focusing liability on the defendant's culpable purpose. A strong answer applies the more-than-merely-preparatory test to the facts, establishes the required intention, and can evaluate the certainty of the law.

Worked example

Worked problem question: criminal attempt

D approaches a jeweller's, produces a hammer and raises it to smash the window intending to steal, but is seized before striking. Advise on whether D is guilty of an attempt.

Issue
Whether D's acts are more than merely preparatory to theft, with the intent to commit it.
Rule / authority
Attempt (s.1 Criminal Attempts Act 1981): with intent to commit an offence, an act more than merely preparatory. Preparation is not enough (R v Geddes), but embarking on the execution is (R v Jones).
Application
D intends to steal. Raising the hammer at the window goes beyond planning and preparation into the execution of the offence, so it is more than merely preparatory on the Jones approach, unlike the mere preparation in Geddes.
Conclusion
D is guilty of attempted theft: he had the intent and did an act more than merely preparatory to committing it.

Result: The answer applies the more-than-merely-preparatory test with authority and establishes the required intention.

Typical mistakes

Convicting of attempt for acts that are merely preparatory; the act must go beyond preparation to execution (Geddes).
Allowing an intention to cause GBH to found attempted murder; attempted murder requires an intention to kill.

Active revision

D buys a crowbar and drives to a house intending to break in, but is arrested in the driveway before doing anything further. Advise on whether D is guilty of attempted burglary.

Active recall

Recall the key points — then reveal.

Sources: GCE AS and A level subject content for law (Department for Education) · AQA A-level Law (7162) specification (AQA)

References & sources

Sources

Department for Education

GCE AS and A level subject content for law

AQA

AQA A-level Law (7162) specification

Property Offences and Preliminary Offences

4 sections~17 min reading time3 competenciesLevel Standard 3 · Advanced 1

Property Offences and Preliminary Offences

Key points

Worked problem question: the actus reus of theft

Key points

Worked problem question: dishonesty and intention to permanently deprive

Key points

Worked problem question: robbery

Key points

Worked problem question: criminal attempt

Sources

Property Offences and Preliminary Offences

Key points

Worked problem question: the actus reus of theft

Key points

Worked problem question: dishonesty and intention to permanently deprive

Key points

Worked problem question: robbery

Key points

Worked problem question: criminal attempt

Sources