Introduction to Crime and Criminal Justice

Criminal Law: Offences and Defences

Introduction• we will be looking at offences and defences• we will consider a number of different property

offences:– Thefts, Criminal Damage, Arson

• Legal requirements for AR and MR of such offences• General defences:

– Introduction and Insanity

Part 1: Property Offences

Property Offences

• Only considering some examples:– Theft– Burglary– Robbery– Criminal damage/ Arson

Theft

Theft

• s1(1) Theft Act 1968:– ‘A person is guilty of theft if he dishonestly

appropriates property belonging to another with the intention of permanently depriving the other of it…’

– Can split this into 3 areas of AR and 2 of MR

Theft: Actus reus

• Appropriate– s3(1) TA 1968: assume rights of an owner

• Property– s4 TA: money and all other property, real or personal,

including things in action and other intangible property• Belonging to another

– s5(1) TA: belongs to another if in their possession or control or have proprietary interest or right.

Theft: Mens rea

• Intention to permanently deprive– Joyriding?– Eating packet of crisps as you walk about the

supermarket? Grapes?• Dishonesty

– At time of appropriation did so dishonestly– Term not defined by court, left to jury, who must

decide (Ghosh test [1984] 2 All ER 689):• Was it dishonest by current standards of ordinary

people (objective)? And• Did D realise this (part. subjective)?

Theft

Maximum sentence• 7 years imprisonment

2010/11 recorded offences• Theft other than vehicle

(inc. handling)– 1,078,727

• TFUMV– 313,474

• TDA– 99,277

• Theft from person – 92,924

Burglary

Burglary• s9 TA 1968: A person is guilty of burglary if:

– (a) he enters any building or part of a building as a trespasser and with intent to steal anything in the building, inflicting GBH on any person therein, or doing unlawful damage to the building therein, OR

– (b) having entered the building or part of a building as a trespasser he steals or attempts to steal anything in the building…inflicts or attempts to inflict on any person therein any GBH

• So two forms of burglary (a) and (b).• Used to include raping any person therein but this was

replaced by the Sexual Offences Act 2003

Burglary: Key terms

• Entry: defined as sufficient to be effective in the perpetration of the offence– Reaching through a window?

• Building: defined as any inhabited vehicle or vessel as well as domestic and commercial premises

• Trespass: as in civil law. D has no ‘authority for his presence’ in that place at that time– Shops?

Burglary (a)

• AR– D enters building as a

trespasser with intent to commit:

• GBH• Criminal damage• Theft

• MR– D knows he is a

trespasser or is reckless to this AND

– D intends to commit one of the ulterior offences

• AR and MR of associated offence must also be proven

Burglary (b)

• AR– D enters building as a

trespasser AND– Then goes on to

commit theft or GBH (or forms the intention to commit)

• MR– D knows he is a

trespasser or is reckless to this

• AR & MR of the associated offence must also be proven

Burglary

• May be against a dwelling

• Or a non-dwelling, e.g.:– Shop– Offices– Private yard– Shed or other

outbuilding, etc.

• Can be attempted

• Can be aggravated– (s10 TA 1968)– Commits burglary whilst

“has with him” a firearm, explosive or weapon of offence (for this purpose)

• AR = had weapon• MR = knew had weapon

Burglary

Maximum sentence• Dwelling

– 14 years• Non-dwelling

– 10 years• Aggravated

– Life

2010/11 recorded offences• Dwelling

– 258,148• Non-dwelling

– 264,492

Robbery

Robbery

• s8 Theft Act 1968– ‘A person is guilty of robbery if he steals, and

immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force’

• So robbery is an ‘aggravated theft’:theft + force (or threat of)

Robbery• AR

– The same as theft +– Use or threat of force (immediately before or at time)

• MR– Same as theft +– Force (or threat) used to enable the theft

• E.g. pushing someone to the ground• Threatening someone with harm• Need not threaten the V of the theft• V need not actually be frightened• Must be used in order to steal (otherwise a separate assault)

Robbery

Maximum sentence• Life

2010/11 recorded offences• Of personal property

– 68,452

• Of business property– 7,727

Criminal damage

Criminal damage

• s1(1) Criminal Damage Act 1971:– “A person who without lawful excuse destroys or

damages any property belonging to another intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged shall be guilty of an offence”

Criminal damage: AR

• AR– Destroying or damaging

• Damage must be more than nominal– Property

• Includes land but not intangible property (unlike theft)– Belonging to another

• Art?

Criminal damage: MR

• Intention or recklessness

• Previously Caldwell recklessness (objective)– Was a criminal damage case so binding

• Is now subjective since R v G and another [2003]

Criminal damage

• Not guilty if have ‘lawful excuse’– E.g. general defence– Or falls within s2(2) of Act

• Consent (or believed consent)• Protecting own property

Criminal damage/Arson

• Can be aggravated under s1(2): Criminal damage endangering life– D intended or was reckless as to endangering life

• Arson also a form of criminal damage– Weapon is fire.

Criminal damage

Maximum Sentence• Criminal damage

– Varies by value of property• E.g. 3 months; 6 months

• Endangering life– Life

• Arson– Life

2010/11 recorded offences• Criminal damage

– 701,003• Arson

– 29,113

Offence(Source)

AR MR

Theft(Theft Act 1968; Theft Act 1978; CJA 1991)

Appropriation of property belonging to another

Intention to permanently depriveDishonest appropriation

Burglary*(TA 1968)

(a) Enter building as trespasser with intent to commit theft, GBH, rape or criminal damage(b) Enter building as trespasser then go on to steal or inflict GBH

(a) D knows he is trespasser or is reckless to such AND intends to commit one of 4 offences(b) D knows he is a trespasser or is reckless to such

Criminal damage(Criminal Damage Act 1971)

Damage or destroy property belonging to another

Destroy such property intentionally or recklessly

Robbery(TA 1968)

As theft+ use or threat of force

As theft+ force or threat used to enable theft

Sexual offences too wide ranging for inclusion. See Sexual Offences Act 2003 at http://www.legislation.gov.uk/ukpga/2003/42/contents

Part 2: Defences

General defences

• Either a reason why cannot be seen to possess AR or MR

• Or a reason why even though do possess them, should not be held legally liable (substantive defence)

• A lawful excuse

• General defences not linked to particular crimes• Defendant must show some proof of claim

Defences

General Defences (all/most crimes) Partial Defences

Insanity (special) Necessity Voluntary intoxication (Partial)

Automatism Marital coercionDiminished responsibility(Partial. Murder only)

Involuntary intoxication Consent (depends on circs.)

Loss of control(Partial. Murder only)

Duress by threats (exc. murder)

Duress of circumstances (exc. murder)

Suicide pact(Partial. Murder only)

Self defence Prevention of crimeMistake

Defences

General Defences (all/most crimes) Partial DefencesInsanity (special) Necessity Voluntary intoxication (Partial)

Automatism Marital coercion Diminished responsibility(Partial. Murder only)

Involuntary intoxication Consent (depends on circs.)

Loss of control(Partial. Murder only)

Duress by threats (exc. murder) Duress of circumstances (exc. murder)

Suicide pact(Partial. Murder only)

Self defence Prevention of crime

Mistake

Insanity

Insanity• Little to do with ‘madness’• Legal (not medical) definition

– So has included sleepwalking, epilepsy, etc.

• D has committed AR, but did not possess MR due to ‘insanity’• Not limited to serious offences (R v Horseferry Road Magistrates’ Court, ex p.

K [1996])

• But cannot be used for strict liability offences (e.g. drink driving; DPP v H [1997])

• Special verdict: Not guilty by reason of insanity– Can still be detained (punished?)

Insanity• M’Naghten rules• D must prove on balance of probabilities• That when offence was committed• Was suffering from

– Defect of reason (caused by…)– Disease of mind

• So that– (s)he did not know nature and quality of act or– Did not know what (s)he was doing was wrong in

law

Insanity - Interpretation• Defect of reason

– Deprived of power to reason (R v Clarke [1972])

– Need not be permanent (R v Sullivan [1984])

• Disease of mind– Legal definition– Malfunctioning of mind

• Mental faculties; not brain in physical sense

– Can be caused by physical conditions

– If internal factors are cause• Sometimes labelled insane automatism• If external = automatism

• Nature and quality of act– Physical not moral nature (R v

Codere [1916])– E.g. think slicing loaf of bread

but is actually someone’s throat!

• OR

• Knowledge the act was wrong– Again legally not morally– E.g. R v Windle [1952]; R v

Johnson [2007].

Insanity - disposal

• Rarely used now– Hospital Order meant indefinite detention

• Better than death penalty• But not as good as diminished responsibility (introduced in 1957)

• Criminal Procedure (Insanity and Unfitness to Plead) Act 1992– Murder = HO– Other offences now have range of sentences (increase?)

• HO for definite or indefinite time• Guardianship Order• Supervision and Treatment Order• Absolute discharge

Conclusion

• We have looked at different types of property offences

• We have identified the AR and MR• Considered the rates and sentences for the

offences• And started to look at the general defences

Required reading • Johnstone, G. and Ward, T. (2010) Law and Crime, London:

Sage. Chapters 4 & 5• Smartt, U. (2009) Law for Criminologists, London: Sage.

Chapter 5• Herring, J. (2010) Criminal Law: The Basics, London:

Routledge. Chapters 1 and 4• Any criminal law text book (see the library and choose up-to-

date editions) will cover the key concepts discussed in this session as well as the main offences, such as homicide, theft and assaults.