Theft Act Offences
- General Issues
- Particular Issues
- Handling stolen goods
This guidance aims to provide prosecutors with information on some of the issues that can arise when making charging decisions and prosecuting cases using the Theft Act 1968.
This guidance does not provide comprehensive guidance on the elements of the common offences. This information can easily be obtained from standard sources such as Stones Justices' Manual; Blackstone's Criminal Practice; and Archbold.
For further information on offences of fraud please see guidance on the Fraud Act 2006 elsewhere in the Legal Guidance.
Part 1 Criminal Justice Act 1993 provides for jurisdiction in England and Wales, for offences of dishonesty specified in section 1 of the Act, where:
- not every element of the offence took place in the jurisdiction; or
- the defendant was not a British citizen at any material time; or
- the defendant was not in England and Wales at any such time.
The Act distinguishes between substantive offences (Group A) and conspiracies, attempts and incitement to commit offences (Group B) as set out in section 1
Prosecutors should consider sections 1 to 6 of the Act in detail if such a situation arises.
Most of the offences in the Theft Acts 1968 and 1978 require proof of dishonesty as a specific ingredient. The exceptions in the1968 Act are:
- burglary based on criminal damage or GBH (sections 9 and 10);
- taking a vehicle without the owner's consent (sections 12 and 12A);
- blackmail (section 21);
- advertising rewards for return of goods stolen or lost (section 23);
- going equipped for burglary or theft (section 25).
In all other cases it will be necessary to prove that the defendant was dishonest.
The test for dishonesty
R v Ghosh  EWCA Crim 2 is the leading authority on dishonesty. It sets out a two stage test to be applied whenever dishonesty has to be proved as an element of an offence.
If the answer to either of the following questions is 'no' a prosecution is bound to fail. The first element is objective; the second subjective:
- According to the ordinary standards of reasonable and honest people, was what was done dishonest?
- If it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard the conduct as dishonest?
In many cases it will be clear from the evidence itself that the first stage of the test is satisfied.
The court must be satisfied that the evidence is capable of providing a positive answer to both questions. There is, however, no need for a Ghosh-based direction, unless the defendant has raised the issue that he or she did not know that anybody would regard what he or she did as dishonest, in accordance with the first stage of the test. (See R v Price (R W) (1990) 90 Cr. App. R. 409).
When dealing with offences of theft (only) prosecutors should be alert to the provisions of section 2 of the 1968 Act, which set out the circumstances when an appropriation is not to be regarded as dishonest. This covers situations in which the defendant had a belief:
- of a right in law to appropriate the property;
- that the owner would have consented;
- that the owner cannot be discovered by taking reasonable steps.
The Theft Act 1968 describes property as including money and all other property, real or personal, including 'things in action' and other intangible property. When a case involves cheques or funds in bank accounts, it is important to identify and analyse exactly what has taken place. Prosecutors should carefully examine bank account details. It may be necessary to ask the police to obtain further evidence or information before deciding on the appropriate charge.
In normal circumstances, the holder of the bank account has a right to sue the bank for the amount of any credit balance and any agreed overdraft. When it can be proved that the dishonest actions of a defendant had the effect of extinguishing such a right in a bank account belonging to another person, it would be appropriate to charge the theft of a credit balance belonging to the account holder.
Electricity is not property within the meaning of section 4 Theft Act 1968 (Low v Blease  Crim L.R. 513) and cannot therefore be stolen. When electricity is used without due authority, or dishonestly wasted or diverted, prosecutors should charge the offence of abstracting electricity contrary to section 13 Theft Act 1968.
Section 125(1) of the Coroners and Justice Act 2009 requires that when sentencing an offender for an offence committed before 6 April 2010, the courts must have regard to any relevant sentencing guidelines.
The following sentencing guidelines relevant to the offences referred to in this guidance can be found at: Guidelines to download - Sentencing Council. They include:
- Burglary offences (definitive guideline)
- Magistrates' Courts Sentencing Guidelines
- Overarching Principles: Seriousness
There is further information available in the CPS Sentencing Manual which is a source of information for advocates to assist them with trial preparation, in particular when addressing the court at the sentencing hearing.
This section does not aim to provide a comprehensive description of all the offences in the Theft Acts. That information is readily available elsewhere. The following paragraphs deal with issues concerning the choice of the most appropriate charge and particular aspects of certain offences that are known to present particular challenges to prosecutors.
The offence of theft is well understood and there is good commentary available in general legal texts. The following sections deal with some specific aspects of theft offences on which prosecutors may be asked to advise.
Theft of metal
Metal theft has a significant and sometimes disproportionate impact on industry and the wider community.
The impact for the railway network can be particularly severe. Copper signal cabling tends to be targeted and removed and sold illegally as scrap metal. This is a major concern for Network Rail and the British Transport Police (BTP) not only because of the cost implications but also because of disruption to services and safety concerns.
There are also a significant number of thefts targeted at electricity supply lines and sub-stations. These may result in a high level of danger, not only for those committing the theft but for members of the public as a result of fires and danger from insecure installations.
There have also been high profile cases of theft of metal from church roofs and war memorials. Other public buildings and places of worship are similarly at risk. Such thefts can affect whole communities.
The scrap value of the metal concerned is sometimes negligible by comparison with the public harm that results. Prosecutors are, nevertheless, urged to prosecute such cases robustly where the evidence meets the Full Code Test set out in the Code for Crown Prosecutors.
Outlining the facts
When outlining the facts of such cases, prosecutors should ensure that they highlight the wider impact and consequences of such offending so as to enable courts to sentence appropriately.
Railway and other transport services, electricity supplies, schools, businesses, churches may be disrupted or closed as well as large numbers of householders inconvenienced.
Prosecutors should actively consider obtaining information on the impact and effect of such thefts which may go far wider than the direct loss or damage caused. Utility companies, railway operators, church organisations and other such bodies may be able to provide an indication of the wider impact of the theft or damage charged.
Using the Theft Act 1968
Provided the requisite elements of the offence are satisfied, theft will usually be the most suitable offence for the removal of trackside cabling and other equipment or metal.
Charges of handling may be appropriate for those found in possession of stolen metal where there is insufficient evidence to link the defendant with the original theft.
Prosecutors should always consider whether there is sufficient evidence to proceed with a theft (or burglary) charge based on the doctrine of 'recent possession' (see Recent possession elsewhere in this guidance).
Using the Criminal Damage Act 1971
Damage caused in the course of stealing or as a direct result of a theft may be referred to when outlining the facts of a case or requesting compensation. Prosecutors should, however, also consider specific charges for criminal damage where relevant. (Refer to legal guidance on Criminal Damage for advice on charging).
This may be appropriate where, for example:
- property was not taken, but significant damage was caused in an attempt to do so;
- the damage was significant, particularly by reference to the value of any items stolen;
- it would help in the clear presentation of the case and for the purposes of sentence and the recording of convictions.
Using the Scrap Metal Dealers Act 1964
The Scrap Metal Dealers Act 1964 provides a regulatory regime for licensing scrap dealers and summary only offences for non-compliance.
The relevant offences in the SMDA are as follows:
- sections 1(7) and 1(8) concern the registration of scrap metal dealers;
- section 2(6) relates to the recording of certain particulars with respect to scrap metal dealing;
- section 5(1) prohibits the acquisition of scrap metal from a person apparently under the age of sixteen years;
- section 5(2) concerns the provision of false names and addresses to dealers;
- section 6 concerns obstructing the exercise of any right of entry or inspection of records.
The provisions of section1(9) place a duty on the local authority to enforce the provisions of section 1 but this does not prevent the CPS prosecuting any such offences investigated by the police or British Transport Police.
The Prosecution of Offences Act 1985 provides a general jurisdiction to prosecute these cases. Section 3(2)(a) places a duty on the CPS to take over proceedings instituted by or on behalf of the police.
Section 6(2) also permits the taking over of proceedings by the CPS, even where there is not a duty to do so. However, the CPS would not ordinarily seek to take over a prosecution by another agency, unless under exceptional circumstances. (See the Relations with Other Prosecuting Agencies guidance).
Using the Proceeds of Crime Act 2002
Prosecution for theft or handling opens the way to confiscation of criminal assets under the Proceeds of Crime Act 2002. This is of particular relevance when the 'criminal lifestyle' provisions of section 75 of the Act may be invoked to remove assets not directly connected with any offences of which the defendant has been convicted.
Prosecutors should also consider charging one of the so-called 'money laundering' offences in sections 327 to 329 of the Act that deal with criminal property where appropriate. These may be charged either on their own, in addition to or as alternatives to charges under the Theft Act 1968.
Taking a Conveyance without Authority
Section 12 of the Theft Act 1968 is committed when a person takes a conveyance without the owner's consent or other lawful authority for his own or another's use, or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in it or on it.
In order to prove a section 12 offence, the required elements of the offence must be understood. These are:
There must be some element, but more than mere movement - the vehicle should be used as a conveyance.
- A conveyance
This means a conveyance constructed or adapted for the carriage of a person or persons whether by land, water or air. It does not include a conveyance constructed or adapted for use only under the control of a person not carried in or on it.
- Without the consent of the owner or other lawful authority
Section 12(7) of the 1968 Act provides that when a vehicle which has been taken is the subject of a hiring agreement or a hire purchase agreement, a person in the possession of the vehicle under such an agreement is deemed to be the owner for the purposes of section 12.
- For own or another's use
The use or intended use as a means of transport must be proved. If it is not 'used' - e.g. simply pushing a car away from a drive entrance without any consent or authority to do so (obviously depending on the circumstances), then the offence is incomplete. If someone rides on a conveyance whilst it is being pushed, then there may be a taking. A dinghy moved on a trailer that is to be used as a dinghy at some future time, is still taken for the taker's or another's use.
- Knowing that such a conveyance has been taken without consent drives it or allows himself to be carried in it or on it.
Note that this requires knowledge that the vehicle has been taken and the accused has either driven the vehicle or been a passenger.
The taking of a pedal cycle or the riding of pedal cycle, knowing it to have been taken without the owner's consent, is not within the provisions of section 12(1) of the 1968 Act, but is covered by section 12(5) of the 1968 Act - the penalty for this offence is a fine not exceeding level 3 on the standard scale.
Section 12(6) of the 1968 Act provides that a person does not commit an offence under section 12 by anything done in the belief that he has the lawful authority to do it or that he would have the owner's consent if the owner knew of his doing it and the circumstances of it.
Section 12 is a summary offence and carries a penalty of imprisonment for a term not exceeding 6 months and/or a fine not exceeding level 4 on the standard scale and discretionary disqualification from driving.
Section 12(3A) provides that when there is a certificate setting out the date on which sufficient evidence came to the knowledge of the person responsible for commencing the prosecution, proceedings should be commenced within six months from the date specified, but that no proceedings may be brought after three years from the date of the taking of the motor vehicle.
In addition a charge of taking a conveyance without consent is one of the specified offences for the purposes of section 40 Criminal Justice Act 1988. As a result, in appropriate cases such offences can be placed as a Count on the indictment e.g. where a vehicle has been taken to facilitate the main offence.
Prosecutors should also note that a jury is able to bring an alternative verdict convicting an offender of Taking without owner's consent as an alternative to a count alleging theft of the conveyance.
Examples of when it would be appropriate to charge this offence are:
- when an accused takes a conveyance and then later abandons it;
- when a motor vehicle is legitimately borrowed for a particular purpose and is used thereafter for a wholly different purpose - for example, when the accused is given the use of his employer's vehicle to drive from London to Cardiff on business but decides to visit friends in Liverpool instead;
- when a vehicle has been stolen or taken without the owner's consent by one person, abandoned and subsequently taken without consent by another person;
- when the evidence is not clear as to whether a driver or passenger was a party to the taking of the vehicle, you should consider whether to charge the offence of driving it or allowing oneself to be carried, provided that the necessary evidence is available to show that the person knew that it has been previously taken without the owner's consent; and
- when a victim has been forcibly deprived of his vehicle, but there is insufficient evidence to support robbery, because an intention to permanently deprive cannot be proved.
Examples of when it is not appropriate to charge this offence are:
- When there is a minor deviation from a proper route by a person who has an otherwise authorised used of the vehicle;
- When a vehicle has been moved only a short distance because it was causing an obstruction;
- When consent to the taking was obtained by fraud, for example, by providing false particulars at the time of the hiring of a motor vehicle. In these circumstances, you should consider whether an offence under the provisions of the Fraud Act 2006 is more appropriate.
Other Charging Considerations
When there are any evidential difficulties in proving an offence under section 12 of the 1968 Act, you should consider charging an offence of vehicle interference contrary to section 9 of the Criminal Attempts Act 1981.
Where there is fingerprint or DNA evidence you need to consider carefully where this is located on the vehicle. You cannot assume, for example, that a fingerprint on an outside wing mirror is evidence of taking a motor vehicle. However, traces of blood on the ignition barrel will of course be different.
Taking a motor vehicle where force is used may amount to robbery, when the evidence supports the inference that the offender did not intend the victim to recover the car intact (for example, the car is not recovered, or is recovered but seriously damaged or burnt out).
Section 12 of the 1968 Act is a summary only offence. There is no offence of attempting to commit a summary offence and thus no offence of attempting to commit an offence under section 12 of the 1968 Act. Actions by an accused, which fall short of the full offence under this section, are likely to be covered by a charge of vehicle interference.
Aggravated Vehicle Taking
Section 12A of the Theft Act 1968 is committed if a person commits an offence under section 12(1) of the 1968 Act in relation to a mechanically propelled vehicle and it is proved that at any time after the vehicle was unlawfully taken (whether by that person or another) and before it was recovered, the vehicle was driven, or death, injury or damage was caused, in one or more the circumstances set out in paragraphs (a) to (d) of section 12A (2):
- that the vehicle was driven dangerously on a road or other public place;
- that, owing to the driving of the vehicle, an accident occurred by which injury was caused to any person;
- that, owing to the driving of the vehicle, an accident occurred by which damage was caused to any property, other than the vehicle; and
- that damage was caused to the vehicle.
Aggravated vehicle taking is an either-way offence which carries a penalty on conviction on indictment of imprisonment for a term not exceeding 2 years, or, if in the circumstances of section 12A (2)(b), an accident results in the death of another, then a person guilty of the offence shall be liable to imprisonment for a term not exceeding 13 years, (by virtue of Criminal Justice Act 2003). On summary conviction, it carries a penalty of imprisonment for up to 6 months and/or a fine of up to the statutory maximum.
When the only aggravated element of an offence under section 12A is the allegation of damage being caused to the vehicle and/or other property, the offence will be triable summarily only, if the value of the damage does not exceed the relevant sum under section 22 of the Magistrates' Court Act 1980.
Offences under section 12A of the 1968 Act are subject to obligatory disqualification (for a minimum period of 12 months) and endorsement of the offender's driving licence with three to eleven penalty points when, for special reasons, disqualification is not imposed.
Prosecutors should note that this offence only applies to mechanically propelled vehicles and not to all conveyances.
The aggravated offence never becomes statute barred as it is an either way offence. Even if the value of the damage caused is under five thousand pounds (and, as a damage offence, would be triable summarily), this offence is still an either way offence and does not become statute barred.
Since for an offence under this section the accused must have committed the basic offence of taking the vehicle without the owner's consent, prosecutors should apply the guidance set out above. If there is a realistic prospect of conviction on the evidence for an offence under section 12(1) then prosecutors should consider whether any of the additional circumstances referred to in section 12A(2) of the 1968 Act exist which would make it appropriate for the aggravated form of vehicle taking to be charged.
In cases involving a collision and damage or injury, prosecutors should be aware that it is not a requirement to show that the standard of driving is at fault. What is required to be established is a causal connection between the driving of the vehicle and the occurrence of the accident from which the damage or injury results (R v Marsh  1 Cr. App. R 67).
Where the manner of driving falls far below the standard required the driver prosecutors should normally charge dangerous driving, because on conviction for that offence the court has power to order the driver to take a re-test before driving again, a power which is not available on conviction for this offence.
Where there is evidence of dangerous driving leading to a fatal collision prosecutors should normally charge the driver with the offence of causing death by dangerous driving, so that the sentencing court has power to order the driver to take an extended driving test before driving again. This power is not available for this offence.
Where there is no evidence that the manner of driving fell below the standard required, but there is evidence that the vehicle has been taken without consent, prosecutors should charge this offence where there has been a collision as a result of which, either personal injury or damage to property other than the vehicle, have been caused. This offence should also be used where damage has been caused to the vehicle.
Prosecutors should note that a person who either takes a vehicle without authority or allows himself to be carried in it may commit the aggravated offence if the vehicle is driven or damaged by someone else so as to come within the specified circumstances as set out in section 12A of the Theft Act 1968. In this respect prosecutors should be aware of the two statutory defences in section 12A (3).
Section 12A of the 1968 Act creates two offences, one with a maximum penalty of 2 years imprisonment on indictment and the second when the additional facts under section 12A(2)(b) are proved and death results with a maximum penalty of 14 years' imprisonment. A sentence of 14 years is only available to a judge if the indictment alleges that a death occurred. Thus any charge and any indictment must make it clear which of the two offences is being charged (R v Sherwood; R v Button  RTR 60).
If the evidence is that a vehicle has been taken by the use of force or threat of force, but there is insufficient evidence to prove an intention to permanently deprive the owner of the vehicle, it may be appropriate to charge aggravated vehicle taking or blackmail.
Public interest considerations
Prosecutors should bear in mind that unauthorised takings of motor vehicles causes distress and can result in great inconvenience to those relying on that vehicle e.g. the owner and his/her family. It follows that, in the absence of clear reasons to the contrary, a prosecution should normally follow a decision that there is sufficient evidence in respect of basic offences under section 12 (1) of the Theft Act 1968.
In the case of aggravated offences it is more likely that the public interest will require a prosecution because of the serious nature of such offences in terms of risk to other road users and to the general public.
Where one or more defendant is being carried in a conveyance it is necessary to establish each knew that the vehicle had been taken without authority. For this reason, it is best practice to charge each occupant of the vehicle separately.
The 1968 Act also provides for alternative verdicts in two circumstances:
Offence Charged: Theft of a motor car - section 1. Alternative verdict: Taking without the owner's consent - section 12
Offence Charged: Aggravated vehicle taking - section 12 (a). Alternative verdict: Taking without the owner's consent - section 12.
Theft from a shop
Prosecutors may be asked to consider a charge of burglary when a person enters a shop in defiance of a 'banning order' issued by the shop or by a court.
The same question arises from time to time when a person enters a shop with the intention to steal, or subsequently forms that intention, whether or not they steal.
Where the defendant steals in the shop a charge of theft will almost always be the appropriate charge in such cases. It enables the case to be presented in a way that is clear and immediately understandable to magistrates and jurors. It avoids the additional (and unnecessary) legal elements and evidential complications of a burglary charge.
It is unlikely to be necessary and proportionate to prosecute where nothing is stolen, unless the offender is acting in breach of a court order.
Persistent entry in breach of a banning order, particularly by repeat offenders, could also be dealt with, in appropriate cases, by the imposition of an ASBO, the breach of which is enforced as a criminal offence.
Support for this approach can be found in paragraph 6.1 of the Code for Crown Prosecutors, which requires that prosecutors should select charges that:
- reflect the seriousness and extent of the offending supported by the evidence;
- give the court adequate powers to sentence and impose appropriate post-conviction orders; and
- enable the case to be presented in a clear and simple way.
Paragraph 6.2 of the Code for Crown Prosecutors also provides that prosecutors need not always choose or continue with the most serious charge where there is a choice.
Theft carries a maximum sentence of 7 years if tried on indictment. This gives the courts sufficient powers to deal with even the most serious shop-theft. This is clearly reflected in the Sentencing Guidelines Council Definitive Guideline: Theft and burglary in a building other than a dwelling.
The Guideline specifically provides that where an offender steals from a shop in breach of a banning order, this is an aggravating feature for the purposes of sentencing.
In order to be capable of being stolen, property must, at the time of appropriation, 'belong to another'. If property has been abandoned then it has no owner. It cannot be stolen.
Donated items (especially clothes) left outside a property, for collection by a specific charity, are sometimes removed dishonestly before they can be collected by the charity's own street collectors.
If a householder places unwanted clothing on the doorstep, not caring who takes it, then it could be said that the householder has abandoned it and there can be no theft.
If, however, the items of property were left for the benefit of a particular charity (perhaps in response to a leaflet advertising a house-to-house collection) then the property has not been abandoned. The property still belongs to the householder until collected by the charity and a charge of theft may be appropriate.
To obtain a conviction for theft all the normal elements must be proved. In these particular circumstances there must be sufficient evidence to establish that:
- the donor householder put the items out for collection only by the specific charity;
- when the defendant removed the property it must have been obvious (a) to a reasonable person and (b) to the defendant that the goods were to be collected only by that charity.
The following matters may assist:
- Statements from the relevant donor householders dealing with whether the items were left out for collection only by the particular charity.
- Any relevant correspondence between the charity and the donor dealing with the issue of ownership of the items.
- A statement from the charity confirming that charity bags were deposited at the relevant addresses and exhibiting the appropriate correspondence together with a sample bag.
- If the bags themselves are clearly labelled with the name of the charity; are printed with an explanation that the items in it have not been abandoned; and that unauthorised removal would be considered to be theft.
Evidence that the defendant was in possession of clearly labelled bags belonging to a named charity will not only help to rebut the defence that the property was abandoned but may also provide a basis for the court to infer the defendant was acting dishonestly when he or she took the bags.
Public interest considerations
Stealing charity bags in this way will often be an organised operation and may involve the shipping of large quantities of clothes (for example) out of the UK. The items will usually be sold or recycled for profit. The donors' wishes are frustrated and the intended charity suffers a loss of income.
Provided the necessary elements of theft can be proved it will usually be in the public interest to prosecute such cases. This is particularly so when the offence is committed in an organised and pre-meditated way.
The fact that the theft interferes with an intended charitable gift may be seen as an aggravating factor as the impact of the theft goes beyond the immediate loss to the owner of the goods.
Where the defendant is in possession of stolen goods a court may infer guilty knowledge or belief if the defendant offers no explanation to account for possession or if satisfied that the explanation is untrue (R v Smythe (1981) 72 Cr. App. R. 8. CA). This applies as much to offences of theft and burglary as it does to handling stolen goods.
Where the only evidence of an offence is 'recent possession' of stolen goods, it will often be difficult to exclude the possibility that the defendant was merely a receiver of the stolen property. A charge of theft or burglary may not succeed.
In many cases, however, there will be other evidence that may support a charge of theft or burglary. Among those to be considered will be:
- the time and place of the theft;
- the likelihood of the property being sold on as quickly as the defendant may suggest;
- any connection the defendant has with the place where the theft occurred; and
- anything said by the defendant that may support (or conflict with) the other evidence.
Elements of the offence
Robbery contrary to section 8(1) of the Theft Act 1968 is an offence that can be tried only on indictment. The maximum penalty on conviction is imprisonment for life.
The offence is committed when a person 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 subject to force.
The force or threats must be directed at the victim ('uses force on any person') and not, for example, at others or at the victim's property. In such circumstances it may be appropriate to consider an offence of blackmail.
Where, therefore, a theft follows or is followed by an assault, there may need to be two separate charges.
If the theft is completed before the assault takes place then robbery cannot be proved, because of the requirement that the force must be used 'in order' to steal. This can be determined only on the facts of each case.
If a theft takes place after an assault it will be a matter of fact for the tribunal of fact to determine whether the force was used 'in order' to steal. In the case of R v Harris (The Times 4 March 1988), the defendant was not guilty of robbery, by stealing from the victim who had been rendered powerless by others without the complicity of the defendant.
When a firearm (or imitation) is carried or used during the course of a robbery, appropriate charges under the Firearms Act 1968 or should always be added to the indictment in addition to a charge of robbery. Charges concerning the carrying or use of offensive weapons should similarly be added to the indictment.
The additional charges are important for sentencing purposes in respect of both the current and future cases and also to ensure that the record of previous convictions shows clearly the use of a firearm or other weapon.
For situations where a robbery is committed in the course of a burglary see the section on 'Use of force' below.
Assault with intent to rob
Section 8(2) of the Theft Act preserves the offence of assault with intent to rob, which is triable only on indictment and carries a maximum penalty on conviction of life imprisonment.
No actual demand of money or property is necessary to support the allegation. The intent to rob may be proved from the surrounding circumstances and any admission or confession made by the defendant.
The offence may be useful where the robbery fails. As this is an offence of specific intent prosecutors should consider carefully whether there is sufficient evidence to prove the necessary intent. Prosecutors should consider whether an alternative charge of assault is necessary to provide the possibility of a conviction if the intent to rob is not proved.
The basic offence
Section 9 of the 1968 Act creates two offences that both require proof that the defendant entered any building or part of building as a trespasser. There must also be an additional element concerning the intention or the actions of the defendant whilst in the building or part of.
Section 9(1)(a) requires proof that the entry took place with the intention of:
- inflicting GBH; or
- committing unlawful damage.
Section 9(1)(b) requires proof that after the entry took place the defendant:
- stole or attempted to steal anything; or
- inflicted grievous bodily harm upon a person, or attempted to do so.
Domestic or dwelling burglary
Importance of specific pleading
The definitions of burglary offences in section 9 of the Theft Act 1968 do not distinguish directly between the burglary of a dwelling or a non-dwelling. There are, however, important differences in respect of venue and sentencing.
Any charge or count on an indictment should therefore specifically plead whether the building is a dwelling or otherwise.
The Theft Act 1968 uses the term 'dwelling'. Section 9(3) of the Theft Act 1968 provides for different statutory maximum sentences for burglary depending on whether the building is a dwelling or not.
The Powers of Courts (Sentencing) Act 2000 uses 'domestic' burglary in the provisions that affect jurisdiction and sentencing for repeated burglaries. (See sections on 'Venue' and 'Sentence' elsewhere in this guidance).
There appears to be no direct case law on the point, but it is submitted that there is no distinction intended between the terms 'burglary of a dwelling' in the 1968 Act and 'domestic burglary' in the 2000 Act.
Given the importance attached to the difference between a dwelling and a non-dwelling, Prosecutors should be prepared to pursue cases as dwelling burglaries whenever it is realistic to plead that a building is a dwelling.
This is particularly important if the building was occupied at the time of the burglary. If necessary the issue can be resolved by the defence seeking a ruling from the court to determine as a matter of law whether the building is capable of being a dwelling. If the court determines that the building is capable of being a dwelling it is then entirely a matter for the jury on the facts as to whether it is so on the facts of the particular case.
Definition of dwelling
There is no statutory definition of a dwelling within the Theft Act 1968 and no entirely definitive case law.
The judgment in R v Saw and Others  EWCA Crim 1 contains comments about the aggravating factors arising from the special nature of a building which people use as a home, but provides no specific definition of a dwelling.
Some cases have dealt with the issue of buildings which are living accommodation temporarily unoccupied (R v Lees  EWCA Crim 1640) or not permanently occupied, such as a hotel room.
Courts appear, however, to have taken a broad view of the definition of 'dwelling' in respect of offences of burglary. Structures such as sheds and garages within the boundaries of a property and even mobile caravans have all been considered to fall within the definition of 'dwelling'. The courts were encouraged by the Lord Chief Justice in the case of Saw and others to sentence accordingly in such cases.
The question of what constituted a dwelling under section 9 of the Theft Act 1968 was specifically considered by the Court of Appeal in the case of R v Rodmell (24 November 1994 - unreported). This was a case that involved the burglary of a garden shed, and the theft of power tools. The shed stood in three and a quarter acres of grounds of a house, and some 60 yards from the house.
The Court of Appeal cited with approval the following sentencing remarks:
'A garden shed is part of a person's home. Burglars should be under no illusion that burglary of outbuildings is just as much burglary of domestic premises as breaking into the front door, although it can be said to be not quite as serious as breaking onto the place where people live.'
Other legislation may assist with an understanding of what may be considered to be a dwelling but cannot be determinative. Prosecutors need to exercise caution when relying on such provisions. The definition of 'dwelling' in section 8 of the Public Order Act 1986, for example, is:
'any structure or part of a structure occupied as a person's home or as other living accommodation (whether the occupation is separate or shared with others), but does not include any part not so occupied, and for this purpose 'structure' includes a tent, caravan, vehicle, vessel to other temporary or movable structure.'
This definition arises, however, from the fact that the Public Order Act 1986 specifies that certain offences cannot be committed from within a dwelling. It is for that reason that the definition includes the words '... but does not include any part not so occupied ...'.
The Court of Appeal in Le Vine v DPP  EWHC 1128 (Admin) therefore held that because of these words of limitation the laundry room of a communal block of flats was not part of a dwelling for the purposes of section 8 of the Public Order Act 1986. It is submitted that this decision should not be applied to the provisions of section 9 of the Theft Act 1968, particularly as they contain no equivalent limitation.
Use of force
The offence of burglary may be committed where there is a trespass accompanied by the use of or an intention to use force.
Where a burglary involves theft and force is used immediately before or at the time of stealing (or attempting to steal) the defendant may have committed an offence of robbery. Prosecutors should normally charge robbery, where robbery can be made out rather than burglary (or aggravated burglary).
- Robbery is a straightforward concept easily understood by juries.
- It can take place inside a private dwelling or commercial property as well as outside.
- It clearly reflects the use or threat of force.
- It is automatically an indictable only offence.
- It provides the court with greater sentencing powers as the maximum sentence is life imprisonment and the Guideline sentencing range is wider.
- It is a specified offence under Schedule 15 Criminal Justice Act 2003 ('dangerous offenders') for the purposes of sentencing.
The trespass will form part of the facts in the count of robbery and the indictment will not require a separate count of burglary to introduce it as an aggravating element of the offence.
Aggravated burglary may appear an attractive option where a weapon of offence is carried. However, it must be established that the weapon was with the person at the relevant time, as well as proving the simple burglary offence (see the section on Aggravated Burglary below) and this can therefore complicate the prosecution. As the aggravated offence is committed whether or not the weapon has been used, it does not automatically reflect the use or threat of violence.
Prosecutors should not prefer a charge of dwelling burglary simply in order to provide for the current or future use of section 111 Powers of Criminal Courts (Sentencing) Act 2000 (mandatory minimum sentence for 'third strike' domestic burglary) where a charge of robbery would be more appropriate.
Series of offences
An Indictment alleging a series of robberies (and if appropriate firearms offences) is likely to be preferable to an Indictment containing a mixture of robberies and aggravated burglaries when:
- a series of burglaries is committed;
- each burglary involves theft;
- force is used immediately before or at the time of stealing (or attempting to steal) in each; but
- weapons are carried in only some of the offences.
There may be occasions when a number of offences, some of which amount to robbery and some of which amount to burglary, may be included in one indictment. This is possible provided:
- the indictment satisfies the general requirements of Criminal Procedure Rule 14; and
- the evidence is such that all the separate counts form or are a part of a series of offences of the same or a similar character (Rule 14.2(3)(b)).
The prosecutor should consider the use of conspiracy charges where a series of offences is committed by a number of defendants. The options may include:
- conspiracy to rob;
- conspiracy to possess firearms; and
- conspiracy to burgle.
A person is guilty of aggravated burglary under section 10(1) of the Theft Act 1968 if he commits any burglary within section 9 and at the time has with him ... any weapon of offence. For this purpose 'weapon of offence' means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.
If a firearm or imitation firearm is carried, that fact can and should be reflected in specific counts under the Firearms Act 1968.
A simple burglary is inappropriate where a weapon is carried. However, the prosecutor must be aware of the difficulties that can arise in respect of proving that the defendant was in possession of the relevant weapon of offence and at the relevant time.
In R v Michael O'Leary  82 Cr. App. R. 341 the defendant picked up a knife after entering the premises as a trespasser but before he confronted the householders and demanded their cash and jewellery.
The defendant was charged with aggravated burglary based on an offence of burglary under section 9(1)(b) of the Theft Act 1968. The burglary as charged was therefore not complete until he committed the theft, at which time he had the kitchen knife in his hand.
The Court of Appeal decided that the time at which the offence of burglary was completed was the time at which a defendant must be proved to have with him a weapon of offence. He was therefore guilty of aggravated burglary. It would have been different if the charge had been aggravated burglary based on burglary with intent to steal. The burglary would have been completed as soon as he entered with the intention to steal. If the defendant had subsequently picked up a knife it would not have been an aggravated burglary based on a charge under section 9(1)(a) of the Theft Act 1968.
Burglary is normally an either way offence. It is important when reviewing burglary files to take great care to establish whether either of the following situations apply that affect the usual provisions for determining the appropriate venue for burglary offences.
Use of violence
By virtue of section 17(1) and Sch.1 paragraph 28 of the Magistrates' Court Act 1980 burglary is triable only on indictment if it:
- comprises the commission of, or an intention to commit, an offence triable only on indictment; or
- is committed in a dwelling and any person in the dwelling is subjected to violence or the threat of violence.
'Third strike' domestic burglary
Sections 111(2) and (4) of the Powers of Criminal Courts (Sentencing) Act 2000 contain important provisions in respect of domestic burglaries. They provide that a third domestic burglary (the so-called 'third strike burglary') is triable only on indictment where:
- a person is convicted of a domestic burglary committed after 30th November 1999;
- at the time when that burglary was committed, he was 18 or over and had been convicted in England and Wales of two other domestic burglaries; and
- one of those other burglaries was committed after he had been convicted of the other, and both of them were committed after 30 November 1999.
To identify a 'third strike' it is necessary to establish five dates, plus the age of the suspect on commission of the third burglary. The five dates must be different and follow each other in chronological order:
- commission of the first offence of burglary - must be after 30 November 1999. ('Strike one')
- conviction for the first burglary
- commission of the second burglary - must be after the date of conviction of the first burglary. ('Strike two')
- conviction for the second burglary
- commission of the third burglary - must be after the date of conviction of the second burglary. ('Strike three')
The suspect must have been 18 or over at the date of commission of the third burglary, but not at the commission or conviction of the earlier burglaries.
The third or (subsequent) offence that triggers the provisions and also the previous convictions must be offences of burglary. R v Maguire  2 Cr. App. R. (S.) 10 CA makes it clear that an attempt does not trigger the provisions. A charge of attempted burglary is an offence under the Criminal Attempts Act 1981 not the Theft Act 1968. Furthermore, if the defendant was convicted of an attempt then by definition a burglary did not take place.
By similar reasoning other 'inchoate' convictions for conspiracy or incitement to burgle would not trigger the provisions. A conviction for conspiracy or incitement does not necessarily mean that the defendant took part in a burglary. The conviction for conspiracy or incitement relates to the participation in an agreement or encouragement of an offence not the commission of a substantive offence necessarily. If the defendant did participate it may be appropriate to include a count for the substantive offence on the indictment.
Where the provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 do apply, no proceedings in the magistrates' court other than a sending to the Crown Court under section 51 Crime and Disorder Act 1998 are valid. The relevant charges can be dealt with only by being sent to the Crown Court.
If it is discovered that these provisions should have been applied, any conviction or sentence in the magistrates' court or any committal for trial or committal for sentence to the Crown Court is void for lack of jurisdiction.
A magistrates' court may set aside or vary its own decisions or orders to rectify mistakes, using section 142 of the Magistrates' Courts Act 1980, if the Crown Court or High Court has not already done so. There is also authority for the magistrates' court having the power at common law to rectify errors.
If a dwelling burglary is incorrectly treated as an indictable only offence under the provisions of sections 111 of the 2000 Act and section 51 of the Crime and Disorder Act 1998 the Crown Court has no jurisdiction to deal with it. In effect the case remains in the magistrates' court. A Crown Court judge may, however, exercise the power provided by section 66 of the Courts Act 2003 to sit as a District Judge. Plea before venue may then be dealt with and the appropriate venue determined. The judge may then deal with the case either summarily within the powers of the magistrates' court or adjourn and remand for committal in due course.
If an indictable only burglary is committed for sentence by the magistrates' court instead of being sent for trial, a Crown Court judge may similarly use the powers under section 66 of the Courts Act 2003 to rectify the mistake.
The maximum sentence for burglary of a building other than a dwelling is 10 years' imprisonment on indictment. The maximum for burglary of a dwelling is 14 years. The maximum sentence for aggravated burglary is imprisonment for life.
A conviction for a 'third strike' domestic burglary makes a defendant aged 18 or over liable to a minimum sentence of 3 years, in accordance with sections 111(1) and (2) of the Powers of Criminal Courts (Sentencing) Act 2000. The court must impose a sentence of at least 3 years in custody, unless it is of the opinion that there are particular circumstances in relation to the offence or the offender that would make it unjust to do so. (See 'Third strike' Domestic Bulgary elsewhere in this guidance for an explanation of the provisions for calculating whether an offence is caught by these provisions).
Definitive Sentencing Guideline
The relevant sentencing guideline for offences of burglary is the Burglary Offences Definitive Guideline issued by the Sentencing Council. It distinguishes between aggravated, 'domestic' and 'non-domestic' burglaries.
The Guideline has been drawn up taking into account earlier guideline cases which it effectively supersedes by virtue of its statutory status. It draws heavily on the guideline judgment in R v Saw and Others  EWCA Crim 1, for example, in its approach to sentencing domestic burglaries. It should, however, always be read in the light of any subsequent judgments of the higher courts that comment upon or interpret it.
The Guideline sets out a nine-stage process that the court must follow. Within each offence, it specifies three categories which reflect varying degrees of seriousness. The offence range is split into category ranges which specify sentences appropriate for each level of seriousness. The Guideline then identifies a starting point within each category.
Once the starting point is established, the court should consider any aggravating and mitigating factors and previous convictions so as to adjust the sentence within the range.
The Guideline draws attention to the fact that the minimum term of 3 years' imprisonment for repeated domestic burglaries is not a guideline starting point, but a minimum sentence. Where the offence is characterised by significant or seriously raised culpability or impact, longer sentences will be appropriate.
Handling stolen goods
Evidence of previous convictions
Section 27(3) of the Theft Act 1968 permits the admission of evidence of previous convictions for theft and handling in respect of offences of handling stolen goods subject to specific conditions. This provision can be used only where the defendant is being tried solely on one or more charges of handling stolen goods.
Section 27(3) requires that seven days' notice is given in writing of the intention to prove the conviction(s). There is no requirement to make an application to the court for permission to admit the convictions.
The purpose of the admission of evidence of such convictions is to assist the tribunal of fact when determining the issue of guilty knowledge (dishonesty). It can have no bearing on the issues of whether the goods were in fact stolen property or were in the possession of the defendant.
Where a person is being proceeded against for other offences of dishonesty, it may be possible to introduce previous convictions under the 'bad character' provisions of Part 11 of the Criminal Justice Act 2003 which permit the admission of evidence of bad character in specified circumstances. This would require an application under Part 11 of the 2003 Act.
The main advantage of using section 27 is that no application to the court is needed and the convictions can be admitted without the leave of the court provided the notice has been served correctly.
Should this approach be challenged, prosecutors should point out that section 99(1) of the 2003 Act repeals only the common law rules in relation to the admissibility of bad character evidence. The fact that the Act did not also repeal the specific provision in section 27(3) of the Theft Act 1968 is compelling evidence that there was no intention that the provisions of the 2003 Act should have any impact on existing statutory provisions.
Prosecutors should consider whether the provisions of sections 327 to 329 of the Proceeds of Crime Act 2002 provide an appropriate alternative to offences of handling stolen goods.
The Court of Appeal has considered criticisms of the use of (in particular) section 329 of the Act (acquisition, use or possession of criminal property) rather than an offence of handling stolen goods in some cases. This is particularly the case where the defendant is found in possession of only a small amount or value of stolen goods that do not immediately suggest that the defendant is routinely involved in money laundering activities.
In the cases of CPS Nottinghamshire v Kevin Rose and The Queen v Gareth Lee Whitwam  EWCA Crim 239 the court indicated a preference for the use of handling stolen goods in straightforward cases, but did not go so far as to say that it was wrong in principle or unlawful to use the offences in the Proceeds of Crime Act 2002.