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

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

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

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

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) ARMR Theft (Theft Act 1968; Theft Act 1978; CJA 1991) Appropriation of property belonging to another Intention to permanently deprive Dishonest 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

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) AutomatismMarital 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 defencePrevention of crime Mistake

Defences General Defences (all/most crimes)Partial Defences Insanity (special) NecessityVoluntary 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

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.