Criminal Law

with
Shaveen Bandaranayake

Robbery & Burglary

Case Summaries

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ROBBERY AND BURGLARY
1. R v Walkington

Court of Appeal Criminal Division

GEOFFREY LANE LJ, SWANWICK AND WIEN JJ

Shortly before closing time in a department store, when the sales assistants were
engaged in cashing up their tills, the store detective and two of his colleagues noticed
the accused in a ground floor department. He appeared to them to be interested
primarily in the activity at the tills. He went up to a department on the first floor,
where there was a till in one of the corners of a rectangle made up of a moveable three-
sided counter ('the counter area'). The drawer of the till was partially open. The
accused went into the counter area, which was reserved for the store staff, and opened
the drawer further. It was empty so he slammed it shut. As he was leaving the store, he
was detained for questioning by the police. He was subsequently arrested and charged
with burglary, contrary to s 9(1)(a)a of the Theft Act 1968, in that he entered as a
trespasser part of a building 'with intent to steal therein'. At his trial he claimed that he
had gone up to the first floor counter to look at some dresses, that he had not realised
that he was not allowed to enter the counter area and that it was only after he had done
so that he had decided to open the drawer to see whether there was something inside
worth stealing. He submitted that in the circumstances there had been no 'trespass'
and that the case should therefore be withdrawn from the jury. The judge refused to
withdraw the case from the jury and directed them that they had to decide (i) whether
the counter area was a prohibited area, (ii) whether the accused realised when he
entered that area that it was a prohibited area and (iii), if they decided against the
accused on (i) and (ii), whether, at the time he entered the counter area, he intended to
steal.

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 The accused was convicted. He appealed against his conviction, contending (i) that the
judge should have withdrawn the case from the jury because the counter area could not
constitute 'part of a building' for the purposes of s 9(1)(a) and so he could not have
trespassed by entering that area, and (ii) that, in any event, he did not have the
necessary mens rea for the purposes of theft, because his intention to steal was
conditional, depending on whether he found something worth stealing.

Decision:

Appeal dismissed for the following reasons--

(i) It was a matter for the jury to decide whether the area physically marked out by the
counter amounted to 'part of a building' from which the general public were excluded,
and there was ample evidence on which they could conclude that the store's
management had impliedly prohibited customers entering the counter area and that
the accused knew of the prohibition.

(ii) When a person entered part of a building as a trespasser, intending at the time of
entry to steal anything in that part of the building, it was immaterial whether there was
in fact anything in that part of the building worth stealing. He had an 'intent to steal'
which was sufficient to found a conviction for burglary contrary to s 9(1)(a) of the 1968
Act. On the evidence the accused undoubtedly intended to steal the contents of the till
(ie cash) at the time when he entered the counter area and it would have been
unrealistic for the judge to have directed the jury to ask themselves what sort of
intention he had.

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 2. R v Collins

Court of Appeal

Appellant was a young man of 19 and complainant a girl of 18. One evening appellant
had had a good deal to drink and was desirous of having sexual intercourse. Passing
complainant's house he saw a light on in an upstairs room which he knew was
complainant's bedroom. He fetched a ladder, put it up against the window and climbed
up. He saw complainant lying on her bed, which was just under the window, naked and
asleep. He descended the ladder, stripped off his clothes, climbed back up and pulled
himself on to the window sill. As he did so complainant awoke and saw a naked male
form outlined against the window. She jumped to the conclusion that it was her
boyfriend, with whom she was on terms of regular and frequent sexual intimacy.
Assuming that he had come to pay her an ardent nocturnal visit she beckoned him in.
In response appellant descended from the still and joined her in bed where they had
full sexual intercourse. After the lapse of some time complainant became aware of
features of her companion which roused her suspicions. Switching on the bed-side
light she discovered that he was not her boyfriend but appellant. She thereupon
slapped him and went into the bathroom. Appellant promptly vanished. He was
subsequently charged with burglary with intent to commit rape contrary to Theft Act
1968 s 9(1)(a). Complainant stated that she would not have agreed to intercourse if she
had known that the intruder was not her boyfriend. In the course of his testimony
appellant stated that he would not have entered the room if complainant had not
beckoned him in. There was no clear evidence whether, when complainant beckoned
him, he was still outside the window or had entered the room and was kneeling on the
inner sill. The judge directed the jury that they had to be satisfied that appellant had
entered the room as a trespasser with intent to commit rape and that the issue of entry
as a trespasser depended on the question: was the entry intentional or reckless.
Appellant was convicted and appealed.

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 Decision:

(1) there could not be a conviction for entering premises 'as a trespasser' within s 9 of
1968 Act unless the person entering did so knowing that he was a trespasser and
nevertheless deliberately entered or was reckless whether or not he was entering the
premises of another without the other party's consent;

(2) the crucial question for the jury, therefore, was whether the Crown had established
that, at the moment that he entered the bedroom, appellant knew that he was not
welcome there or, being reckless whether or not he was welcome, was nevertheless
determined to enter. That in turn involved consideration whether he was inside or
outside the window at the moment when complainant beckoned him in;

(3) it followed that the appeal would be allowed since the jury had not been invited to
consider the vital question whether appellant had entered the premises as a trespasser.

Per curiam: the common law doctrine of trespass ab initio has no application to
burglary under Theft Act 1968.

3. R v Clouden

Court of Appeal Criminal Division

LLOYD LJ, EASTHAM AND FRENCH JJ

EASTHAM J

Two police officers, Detective Constable Stewart and Sergeant Harrison, were keeping

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 observation from the 14th floor of a tower block in a housing estate in Deptford. They
saw the appellant follow a woman who was carrying a shopping basket in her left hand.
The appellant approached her from behind and wrenched the basket down and out of
her grasp with both hands. He then turned and retraced his steps and they saw him
run between Shellduck Court and Glebe Court, and as he did so he removed his hat.
Thereafter the appellant was apprehended. He denied that he had been in any way
involved, and his case before the jury was that he was not guilty of theft, that he was
not guilty of robbery, and that his confession, certainly to theft, contained in a
statement, had been obtained from him by coercion and force on the part of the police.
The court convicted him.

The appellant appealed, against conviction, and he relied on two grounds of appeal.
First of all, it was contended that there was insufficient evidence of resistance to the
snatching of the bag to constitute force on the person under s 8 of the Theft Act 1968.
Secondly, it was contended that the learned judge's direction to the jury on the
requirement of force on the person was inadequate and confused.

Section 8 (1) of the Theft Act provides:

"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."

The latter part of the subsection has no application here, because the appellant
approached the victim from behind and she had no knowledge of his presence until
with both hands he managed to break her grasp on the bag in her left hand.

Appeal dismissed on both grounds.

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 4. R v Ghosh

Court of Appeal Criminal Division

LORD LAND CJ, LLOYD, EASTHAM JJ

The defendant, a consultant who had been acting as a locum tenens at a hospital, was
charged on indictment with attempting to obtain, and obtaining, money by deception,
contrary to s 15(1)

(Section 15(1) provides: 'A person who by any deception dishonestly obtains property
belonging to another, with the intention of permanently depriving the other of it, shall
on conviction on indictment be liable to imprisonment for a term not exceeding ten
years) of the Theft Act 1968, by falsely pretending that money was due to him in
respect of an operation which had in fact been carried out by someone else and/or
under the national health service. His defence was that he had not acted dishonestly
because the sums in question were legitimately payable to him as consultation fees.
The judge directed the jury that it was for them to decide, by applying their own
standards of honesty, whether the defendant had acted 'dishonestly' within the
meaning of the 1968 Act. The defendant was convicted. He appealed against
conviction, contending that the judge had misdirected the jury. The question arose
whether the test of 'dishonesty' for the purposes of s 1(1) b ( Section 1(1), so far as
material, provides: 'A person is guilty of theft if he dishonestly appropriates property
belonging to another with the intention of permanently depriving the other of it; and
"thief" and "steal" shall be construed accordingly.) of the 1968 Act was a subjective test
descriptive of the accused's state of mind (ie whether the accused had known he was
acting dishonestly) or an objective test intended to characterise a course of conduct (ie
whether the accused had in fact acted dishonestly).

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 Decision:

(1) The question whether an accused person had acted dishonestly could not be
determined completely objectively by the jury applying their own standards of
honesty, because for the purposes of s 1(1) of the 1968 Act acting dishonestly described
not a course of conduct but a state of mind which could not be established
independently of the knowledge and belief of the accused. In determining whether the
accused had acted dishonestly, the test was first whether the accused's actions had
been dishonest according to the ordinary standards of reasonable and honest people
and if so, whether the accused himself had realised that his actions were, according to
those standards, dishonest. Thus a genuine belief by the accused that he was morally
justified in acting as he did was no defence if he knew that ordinary people would
consider such conduct to be dishonest.

(2) In so far as the judge had misdirected the jury, there had been no miscarriage of
justice because once the jury had rejected the defendant's explanation of what had
happened (which they clearly had), the finding of dishonesty was inevitable whichever
of the tests of dishonesty was applied.

Appeal dismissed.

5. R v Luke Earon Corcoran

The appellant was aged 20. A friend, Matthew Smith (aged 23) was an assistant
manager at a branch of Coral's the bookmakers in Swindon. The appellant had the idea
that the two of them would steal cash from the branch of Coral's where Smith worked,
and the two of them together came up with a plan in which the theft would take place
under the guise of a robbery. On the evening of 6 December 2009 Smith allowed the
appellant to hide in the toilets of the branch until it closed. At that point he took the
cash from the tills for transfer to the safe. The appellant then emerged, brandishing an

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 imitation pistol at Smith for the benefit of the CCTV cameras. Smith, pretending to be
in fear, handed over the cash totalling £8,310. The two of them then left the branch. It
was the appellant who procured the imitation pistol. It has never been recovered and
nothing is known about it, save that it was indeed an imitation.

Smith subsequently reported the supposed robbery and made a statement to the
police. However, the following day he had a change of heart. He went back to the
police and told them what had happened. In due course he and the appellant were
arrested. On 7 January 2010 they appeared in the Swindon Crown Court. Both
pleaded guilty to count 1 on the indictment which charged conspiracy to steal. The
appellant pleaded guilty to count 2, which charged possession of an imitation firearm
at the time of committing a specified offence, and Smith pleaded guilty to a count 3,
which charged doing an act tending and intended to pervert the course of justice (his
statement to the police). Although those distinctions are formally sustainable, both
men were in substance fully involved in all the elements of the offending behaviour. In
particular, Smith intended that the appellant should have an imitation firearm and the
appellant intended that Smith should make a false statement to the police. Both could
have been convicted as accessories on the counts in question.

The appellant was sentenced to thirty months' detention in a young offender

institution on count 1 and to twelve months' detention on count 2, to run
consecutively. Smith was sentenced to twenty-four months' imprisonment on the
count of conspiracy. No separate penalty was imposed on the count of perverting the
course of justice. The appellant was also sentenced, pursuant to the judge's powers
under section 66 of the Courts Act 2003, to three months' detention, to run
concurrently, on an offence of possessing a bladed article to which he had previously
pleaded guilty in the Swindon Magistrates' Court.

The appellant appealed against sentence based on the disparity between the
appellant's sentence and Smith's. The greater overall sentence received by the
appellant has two elements: (a) the further six months on count 1; and (b) the

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 consecutive sentence of twelve months on count 2.

Decision:

The total sentence is therefore one of thirty-three months' detention in a young

offender institution. The time which the appellant spent in custody on remand will
continue to count towards that sentence.

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