Theft Acts, incorporating the Charging Standard

Charging Standard - Purpose

The charging standard below, gives guidance concerning the charge which should be preferred if the criteria set out in the Code for Crown Prosecutors are met. The purpose of charging standards is to make sure that the most appropriate charge is selected, in the light of the facts, which can be proved, at the earliest possible opportunity.

Adoption of this standard should lead to a reduction in the number of times charges have to be amended which in turn should lead to an increase in efficiency and a reduction in avoidable extra work for the police, CPS and the courts.

The guidance set out in this charging standard:

• should not be used in the determination of any investigatory decision, such as the decision to arrest;
• does not override any guidance issued on the use of appropriate alternative forms of disposal short of charge, such as cautioning, or conditional cautioning;
• does not override the principles set out in the Code for Crown Prosecutors;
• does not override particular policy guidance involving hate crimes, such as Homophobic, Racially or Religiously Aggravated, or Domestic Violence offences;
• does not override the need for consideration to be given in every case as to whether a charge/prosecution is in the public interest;
• does not remove the need for each case to be considered on its individual merits nor fetter the discretion to charge and to prosecute the most appropriate offence depending on the particular facts of the case.

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General Charging practice

You should always have in mind the following general principles when selecting the appropriate charge(s):

1. the charge(s) should accurately reflect the extent of the accused's alleged involvement and responsibility thereby allowing the courts the discretion to sentence appropriately;
2. the choice of charges should ensure the clear and simple presentation of the case particularly when there is more than one accused;
3. there should be no overloading of charges by selecting more charges than are necessary just to encourage the accused to plead guilty to a few;
4. there should be no overcharging by selecting a charge that is not supported by the evidence in order to encourage a plea of guilty to a lesser allegation.

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Jurisdiction

We can prosecute for certain offences if a "relevant event" occurred in England or Wales - Criminal Justice Act 1993 Part 1 (Archbold, 2-37) and (Home Office Circular 19/1999). This applies whether or not the defendant was in England or Wale s at any material time, and whether or not he was a British citizen at any such time (Archbold, 2-44).

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Policing Priorities for Fraud Cases

Prosecutors should be aware of the of the 'Policing Priorities for Fraud Cases' document. This is a joint document, drawn up by representatives from the SFO, CPS, DTI and police, and it lists the priorities that the police should take into account when deciding whether to accept a fraud case or not.

A copy is attached at Annex A.

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Specimen Charges/Counts

Refer to Drafting the Indictment, elsewhere in this guidance.

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Charging Practice: Specific Offences

Theft, contrary to section 1 of the 1968 Act.

(Archbold 21-6)

The offence consists of dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it.

Theft is an either-way offence, which carries a penalty on conviction on indictment of up to seven years imprisonment. On summary conviction it carries a penalty of imprisonment for up to six months and/or a fine of up to the statutory maximum.

There are 5 elements of the offence:

• Dishonesty

In assessing whether dishonesty can be proved, you should apply the twofold test set out in the case of (R v Ghosh 75 CR App R 154), (Archbold 21-24). Remember that a jury will have to consider the same two tests before they are entitled to conclude that an accused was dishonest:

Firstly, according to the ordinary standards of reasonable and honest people, was what was done dishonest?

Secondly, if it was dishonest by those standards, did the accused realise that reasonable and honest people would regard his conduct as dishonest?

If the answer to either of these two questions is no, a prosecution will fail. You should also consider the provisions of section 2 of the 1968 Act, which set out the circumstances when an appropriation is not to be regarded as dishonest (Archbold 21-23).

• Appropriation

Section 3 of the 1968 Act, (Archbold 21-31) provides that any assumption by a person of the rights of an owner amounts to an appropriation. The Prosecution do not have to prove that the appropriation was without the owner's consent. An appropriation will take place as an objective fact irrespective of whether the owner authorised or consented to the appropriation. The mental state of the accused is also irrelevant to the question of appropriation. The accused's state of mind is only relevant to issues of dishonesty and intention to permanently deprive. (Lawrence v. Metropolitan Police Commissioner 73 Cr App R 1) (Archbold 21-33) and (R v Gomez 96 Cr App R 359) (Archbold 21-34).

• Property

The 1968 Act 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. You should examine bank account details and 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. The right to sue is a "chose in action" and is "property" under section 4 of the 1968 Act, (Archbold 21-48).

When it can be proved that the dishonest actions of an accused had the effect of extinguishing a chose in action 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.

In some cases, when an accused has dishonestly appropriated a credit balance and created a credit balance in an account, which he controls, the subsequent withdrawal of cash from that account may constitute the theft of money. To prove the theft of cash, it will be necessary to prove that cash was withdrawn and that the cash withdrawn could not have represented funds, which were legitimately in the account in addition to the dishonestly obtained funds. This will involve examining the state of the account both before and after the dishonest funds were paid into the account.

If the account was overdrawn and the agreed overdraft limit was exceeded, there is no chose in action to steal because the debt is not enforceable against the bank (Archbold, 21-50). Consider attempt theft.

Where it is alleged that funds have been appropriated by means of a banker's draft, before charging the theft of a credit balance, it is necessary to identify a debit in a bank account, which corresponds to the amount of the draft. Where a banker's draft has been forged, there will probably be no corresponding debit and it may be appropriate to consider charges under the Forgery and Counterfeiting Act 1981 (Archbold 22-5).

Sometimes it is not possible to say from the evidence whether it was theft of a chose in action, or the proceeds of it. This can arise when the defendant has cashed a cheque from someone who intended the proceeds to be dealt with in a certain way, but the evidence does not reveal whether the proceeds were paid to the defendant in cash or he received credit for the amount in some other way (R. v. Hallam (1993) CLR 323) and (Blackstone's, B4.3).

• Belonging to another

The 1968 Act provides that property shall be regarded as belonging to any person having possession or control of it, or having in it any propriety right or interest. If a person receives property from or on account of another and he is obliged to retain and deal with it in a particular way, the property still belongs to that other person. Property that has been abandoned cannot be stolen.

Property can be owned by more than one legal or human person. A company is a separate legal person from its directors. A director can be guilty of theft from a company (Regina (A) v. Snaresbrook Crown Court, Times Law Report July 12th 2001).

A defendant, with a proprietary interest in property, who acts so as to interfere with the interest of a co-owner, can be guilty of theft.

• With the intention of permanently depriving the other of it

When a person gets property by another's mistake and is obliged to make restoration in whole or part of that property, an intention not to make restoration shall be regarded as an intention to permanently deprive that person of the property - section 5 of the 1968 Act, (Archbold 21-58).

Section 6 of the 1968 Act, (Archbold 21-76) also provides assistance in situations when there has been a borrowing or lending of property in this way is to be regarded as having the intention to permanently deprive the other of it.

Examples when a charge of theft would be appropriate:

• Switching price labels on goods so that a lower price is paid for the property;
• When the accused has collected money on behalf of an charity or other organisation, opens the collection box or envelopes and uses the money for his or her own purposes;
• When a shop assistant dishonestly sells items at an under-value to a friend;
• Theft should be charged if there is difficulty in proving that force was used in order to steal property from a victim or in circumstances when the theft was complete before there was any use of force by the accused.

Examples when it would not generally be appropriate to charge theft:

• When a handbag or a mobile phone is snatched frorom a person's grasp following a struggle you should normally charge robbery (refer to Robbery, below in this chapter).
• When a person learns that goods which he has bought in good faith at a reasonable price were, in fact, stolen and he then sells the property without disclosing his lack of title. You should consider whether a charge contrary to section 15 of the 1968 Act, (Archbold 21-172) is appropriate;
• When a motor vehicle has been taken and later abandoned and there is insufficient evidence to prove that the taker intended the owner to be permanently deprived of it,. y You should charge taking the vehicle without the owners consent, contrary to section 12 of the 1968 Act (Archbold 21-141);
• When a person puts petrol into athe vehicle's tank at a self-service petrol station and then drives off without paying, there may not be sufficient evidence to prove a dishonest intention prior to putting the petrol in the tank; in which case, - you should consider charging the offence of making off without paying, contrary to section 3 of the 1978 Act, (Archbold 21-349).
• When an electricity supply is tampered with - since electricity is not property - you should charge the offence of abstracting electricity, contrary to section 13 of the 1968 Act, (Archbold 21-165).

Charging Considerations

• General deficiency cases

Each appropriation of property should be separately charged. Sometimes, however, it is not possible to prove when such appropriations took place. In those circumstances, a single general deficiency"roll-up" charge should be preferred, for example, when, over a period of time, a milkman steals money, which has been given to him by his customers, a general deficiency charge is perfectly proper. In contrast, when an insurance broker has stolen premiums received by him for clients, he should normally be charged with separate offences of theft relating to each identifiable premium on the basis of his documentary records (refer to Specimen counts, elsewhere in this guidance) (Archbold 1-1443a).

• Theft/handling stolen goods in the alternative

  (Archbold 21-2801 to 21-293)
  It is sometimes difficult to show whether a person in possession of stolen goods is a thief or a handler of goods that have already been stolen. Theft and handling stolen goods may be charged in the alternative. If the evidence clearly points to theft by the accused, it would not be appropriate to add a further charge of handling. Charging in the alternative should only be used when there is a real possibility of doubt. This occurs when the evidence is ambiguous, for example when property taken during the course of a burglary is discovered within a very short time in the accused's possession. It may be inferred, in the absence of any alternative explanation, that the accused was either a thief/burglar or had dishonestly handled stolen property.

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Attempts

The appropriation may be complete even if the criminal's purpose is not fulfilled e.g. thief puts shopping into his bag dishonestly intending not to pay, but is caught before leaving the shop. Charge theft, not attempt theft.

The Prosecution does not have to prove that there is in existence property capable of being stolen. For example:
The would-be pickpocket who put a hand into someone else's empty pocket searching for something to steal will be guilty of attempted an attempt theft. In this example, the charge should be drafted as an attempt to steal property belonging to the victim.

If you cannot charge attempt because there is no act which is more than merely preparatory, consider section 25 Theft Act - going equipped to steal, cheat or burgle (Archbold, 21-324).

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Theft: Gas & Water

These are property that can be stolen (Archbold 21-521).

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Abstracting Electricity, contrary to section 13 of the 1968 Act

(Archbold 21-164)

Abstracting electricity is committed when a person dishonestly uses without due authority, or dishonestly causes to be wasted or diverted, any electricity.

Abstracting electricity is an either-way offence, which carries a penalty of conviction onr indictment of a maximum term of 5 years imprisonment. On summary conviction, the offence carries a maximum term of 6 months imprisonment and/or a fine not exceeding the statutory maximum.

The elements of the offence are:

• Dishonesty

The test of dishonesty is the same as that for theft. (R v Ghosh 75 App R 154) (refer to Theft, above in this chapter). (Also Archbold, 21-24)

• Uses without due authority or causes to be wasted or diverted

It is not necessary to prove that an electricity meter had been tampered with in order for this offence to be made out. "Use" simply means that some consumption of electricity had occurred which would not have occurred but for an act of the accused.

• Any electricity

Electricity is not property for the purpose of the 1968 Act.

Examples when a charge of abstracting electricity would be appropriate:

• When a device is fitted to an electricity meter so that the meter gives a false reading;
• When the electricity supply to a house is reconnected without the consent of the electricity company;
• When the electricity supply to a house by-passesd the meter.

Examples when it would be inappropriate to charge abstractingon of electricity:

• When an unauthorised telephone call has been made from a telephone belonging to another person. A charge contrary to section 125 or 126 Ttelecommunications Act 2003 is usually more appropriate. (Refer to Telecommunications, below in this guidance).

Charging Considerations

• Since electricity is not property, it is not possible to charge thean offence of theft of electricity.
• You must prove that the accused was responsible for the dishonest use of electricity. WhenIn any case in which there is more than one occupant of the premises, you must prove that the accused either tampered with the meter or used electricity knowing that the meter had been tampered with.

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Telecommunications - Sections 125 or 126 Communications Act 2003

• Dishonestly obtaining a telecommunications service with intent to avoid payment of the charge - use sections 125 or 126 Communications Act 2003(Archbold, 25-363).
• A telephone call cannot be "appropriated," or stolen.

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Handling Stolen Goods - Section 22 Theft Act 1968

(Archbold 21-271)

A person handles stolen goods if (otherwise than in the course of stealing), knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.

Handling stolen goods is an either-way offence, which carries a penalty on conviction on indictment of imprisonment for a term not exceeding 14 years. On summary conviction it carries a penalty of a term of imprisonment up to 6 months and/or a fine not exceeding the statutory maximum.

The offence of handling stolen goods is a single offence. However, there are two limbs to the offence:

• Dishonestly receiving stolen goods
• Dishonestly undertaking or assisting in the retention, removal, disposal or realisation of stolen goods by or for the benefit of another person, or arranging to do so.

Whichever limb of section 22 is to be charged, the elements of the offence are:

• Dishonesty

The test of dishonesty is the same as that for theft. (R v Ghosh 75 Cr App R 154) (refer to Theft, above in this chapter). (Archbold, 21-24.)

• Stolen goods

This may be fromone form the loser of the property or by proof of the conviction of the thief under section 75 Police and Criminal Evidence Act 1984, (Archbold 9-83). Consider identification of the goods and continuity evidence between the goods identified by the loser and those recovered from the defendant.

Circumstantial evidence may also be sufficient. Evidence may be given of the circumstances in which the accused came into possession of the goods, such as the time when the goods were received (see the doctrine of recent possession, (Archbold 21-319)), the price paid (if any), the state of the property, the identity of the seller and the circumstance in which the goods were offered.

An admission by the accused that he kneow or believed the goods to be stolen is not sufficient to prove that the goods were, in fact, stolen but his admissions as to how he came by the property may provide the necessary proof that they were stolen (Archbold 21-295).

• Knowledge or belief that goods were stolen

You must prove that the accused knew or believed that the goods were stolen. The accused may be said to know that goods are stolen when someone with first hand knowledge - such as the thief, tells him. Belief is something short of knowledge. Thus an accused will believe that the goods are stolen if his state of mind is such that, with the knowledge he has, there can be no other reasonable conclusion except that the property is stolen. If, despite the circumstances, the accused still refuses to believe what should be obvious, this still amounts to a belief that the goods are stolen. Suspicion that goods are stolen is not enough, even when coupled with the fact theat an accused shut his eyes to the circumstances - although those matters may be taken into account by a court when deciding whether or not an accused had the necessary knowledge or belief. Mere suspicion alone is however not sufficient.

Undertaking or assisting in the retention, removal, disposal or realisation of stolen goods by or for the benefit of another person, or arranging to do so

For this limb of the offence you must also prove that the accused's conduct was by or for the benefit of another.

Charging considerations:

• When it is noit clear whether the offence committed was by way of receiving stolen goods or by way of undertaking or assisting in the retention, etc, of the property, it is permissible to charge both forms of handling in one charge. If, on the other hand, it is clear that the accused could only have handled the stolen goods in one form, then only that particular limb of section 22 should be charged.
• When the evidence ius such that the accused could be either a thief or a handler of stolen goods it is permissible to charge both offences. Both charges, however, should only be preferred when there is a real and not a fanciful possibility that the evidence might support one rather than the other.
• A theft charge is more appropriate if the defendant did not know or believe the goods to be stolen when he received them but, later discovered they were stolen and then dishonestly kept, or otherwise appropriated them.
• When the accused is in possession of property that has been stolen over a period of time and there is insufficient evidence to show that the accused was the thief, you should consider charging both theft and handling.
• Use one charge if the property came from several thefts (or burglaries, robberies, etc) but was all received on one occasion.
• If a number of items of property have been received by the accused on different occasions, you should have a separate charge for each occasion, unless:
1. There is a continuous series of closely linked offences, and it is not possible to show the dates or amounts of individual receipts (Archbold 21-276).
2. The evidence of receiving the goods on separate occasions comes from the defendant, and it is not accepted from the prosecution.
• When an accused is found in possession of stolen property some time after the theft has been committed in circumstances when it is not clear whether the accused is the thief or the handler, applying the decision in (R v Gomez 96 Cr App R 359), you may consider charging the accused with stealing the item on a date between the theft and the item being found in the possession of the accused.
• Consider whether the defendant's intention was to launder the proceeds of crime. A money laundering offence may be appropriate when a person has possessed criminal proceeds in large amounts, or repeatedly in lesser amounts where assets are laundered for profit. A person may be guilty of a money laundering offence, even if it is the benefit of his own criminal conduct that he is laundering. The prosecution need to prove that the defendant knew or suspected that the assets, which he has concealed, acquired, used, possessed, or in respect of which he has entered into an arrangement which he knows or suspects facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person, are the proceeds of criminal conduct, rather than from a specific offence or class of offences. The criminal conduct may have been committed anywhere in the world provided that the original conduct would be illegal, if it had been committed in the United Kingdom. For money laundering offences committed after 23 February 2003, please refer to sections 327, 328, 329 and 340(3)(b) of the Proceeds of Crime Act 2002 (Archbold, 33-11, 33-12, 33-13 and 33-29, respectively) (refer to Money Laundering, elsewhere in this guidance). Money laundering committed after 23 February 2003 is a lifestyle offence and the police financial investigator will need to prepare a report a defendant's assets and expenses over the previous six years to determine whether an application for a confiscation order is appropriate.

Examples when a charge of handling stolen goods would be appropriate:

• When the accused buys goods in a public house at an absurdly low price and the origin of the property has been disguised by obscuring or removing and identification mark or serial number;
• When the accused takes possession of stolen goods late at night, which have been and delivered covertly to his premises;
• When the accused stores or arranges to store stolen goods on behalf of the thief or burglar;
• When an accused disposes of stolen goods on behalf of the thief.

Examples when it would not be appropriate to charge handling goods:

• When an accused purchases goods innocently and later realises the goods are stolen. If he subsequently sells them he may commit an offence of obtaining money by deception forom the purchaser.

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Attempts

A person may dishonestly handle goods which he believes to be stolen but which are either not stolen or cannot be proved to be stolen See section 1 of the Criminal Attempts Act 1981 (Archbold 343-84) and (R v Shivpuri [1987] AC 1) (Archbold 25-463).

In these circumstances, a charge of attempted handling may be appropriate. This should be considered where the property is mass produced goods, such as a car radio or a mobile phone, for which there is an illicit trade and no recognisable owner.

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Section 27(3) Theft Act 1968 Citing Of Previous Convictions

This section allows for admittance of previous convictions of theft and handling, five years preceding the date of the current offence, in order to prove guilty knowledge.

It can only be used when handling is the only charge that a defendant is facing, and notice must be served seven days prior to trial of the intention to prove the previous conviction.

(Archbold, 21-3133 to 21-3187).

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Robbery, contrary to section 8(1) of the 1968 Act

(Archbold 21-85)

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 Iin fear of being then and there subject to force.

Robbery is an offence triable only on indictment. The Mmaximum penalty on conviction is imprisonment for life.

The elements of the offence are:

• Steals

This means theft in accordance with the provisions of section 1 of the 1968 Act.

• The use or threat of use of force against the person

The force must be immediately before or at the time of the stealing and for the purposes of stealing. Force used after a theft is complete, will not amount to a robbery, although that force may constitute a separate criminal act. The force must also be used against the person. Whetherere the force has been used against a person is a matter of fact to be determined according to the circumstances of each case.This must be used intentionally or recklessly in furtherance of the theft. The force or threat of force must be used immediately before or at the time of theft. In the case of a threat, it must amount to a threat of there and then subjecting the victim to force. Whether force has been used against a person is a matter of fact to be determined on the circumstances of each case.

• Puts or seeks to put anyone in fear

The threat of use of force against the person must also be made immediately before or at the time of the stealing and for the purpose of stealing. Where threats of force are used they must amount to threats of then and there, subjecting the victim, or some other person, to force.

Examples when a charge of robbery would be appropriate:

• When a handbag or mobile phone is forcibly snatched from a person's grasp, you should normally charge robbery;
• When an 11 year old hands over a small amount of money following threats of significant violence made by an older and physically larger youth, you should normally charge robbery.
• When no force is used or threatened but a weapon is produced or made visible to the victim (on the basis of an implied threat).
• When a car is taken using force or the threat of force and the evidence supports the inference that the offender did not intend the victim to recover the car intact (e.g. the car is not recovered; or is recovered but seriously damaged or burnt out).

Examples when it would not be appropriate to charge robbery:

• When a bag has been taken from off the shoulder of a victim without any force being used or threatened on the victim.
• Whenre a shoulder strap is cut and the victim is unaware of this until after the handbag has been stolen.

Charging consideration

When there is no theft, or difficulty in proving and essential element of theft, but there is evidence of the use of force against the victim, a charge of threatening behaviour, assault or assault with intent to rob may be more appropriate.

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Alternative Charges

A charge of theft should be considered instead of a charge of robbery in the following circumstances:

• When there is difficulty in proving that force has been used against the victim;
• When the use or threat of force was against property alone;
• When the property was stolen before therse was a use of force on the victim. You should also consider separate charges to reflect the use of force against the victim, for example, assault or threatening behaviour;
• When the threats are made against the victim, amount to threats to use force at some time in the future. You should also consider the possibility of a charge of blackmail;
• When the threats made, are to use force against property.

Charges of blackmail, assault, TWOC or aggravated TWOC should be considered instead of a charge of robbery whenre a motor vehicle has been taken by the use of force or the threat of force but there is insufficient evidence of an intention to permanently deprive the owner of the vehicle (e.g. when the vehicle is later abandoned intact).

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Additional Charges

• When a firearm, or imitation firearm is carried or used during the course of a robbery, appropriate charges under the Firearms Act 1968 should always be preferred in addition to a charge of robbery See (R v Guy 93 Cr App R 108) (Archbold 24-49). This also applies to offensive weapons. . (It is important that such charges are included on an indictment due to the possible implications for the sentencing of an offender charged with robbery, either on this or some future occasion. See section 109 Powers of Criminal Courts (Sentencing) Act 2000 (Archbold 5-214).

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Attempts

• A charge of attempted robbery will be appropriate when the conduct of the accused is more than merely preparatory to the commission of an offence of robbery. When there is a significant time lapse between the assault and the theft, you should charge assault with intent to rob.
• When force is used against a victim causing the victim to drop property, for example a handbag, and the accused runs off without taking the property, you should normally charge attempted robbery.

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Assault with Intent to Rob contrary to section 8(2) of the 1968 Act

(Archbold 21-103)

Section 8(2) of the 1968 Act contains provides for the offence of assault with intent to rob. The offence is triable only on indictment and carries a maximum penalty on conviction of life imprisonment.

Elements of the offence are:

• An assault

An assault is any act which intentionally or recklessly causes another person to apprehend immediate and unlawful personal violence. When the assault is more than merely preparatory to the commission of an offence of robbery, a charge of attempted robbery should be preferred.

• An intention to rob

The intention to rob will be a matter to be inferred from the circumstances of the case including any admission made by the accused.

Charging consideration:

• When there is an unsuccessful attempt to rob - (i.e. when no property is stolen) following or /involving actual violence such as blows being inflicted or the victim is knocked to the ground, you should normally charge assault with intent to rob.

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Burglary, contrary to section 9 Theft Act 1968

(Archbold 21-108)

Section 9 of the 1968 Act creates two offences:

• ?Entry as a trespasser in any building or part of building with the intention of stealing, inflicting GBH or unlawful damage therein (section 9(1)(a) of the 1968 Act (Archbold 21-109))
• ?Having entered as a trespasser any building or part of a building stealing, attempting to steal or inflicting or attempting to inflict GBH on any person therein (section 9(1)(b) of the 1968 Act (Archbold 21-110))

Burglary is an offence, which carries a maximum penalty on conviction on indictment of imprisonment for fourteen years and/or an unlimited fine if the offence is committed in relation to a building or part of a building, which is a dwelling. Otherwise the maximum penalty is ten years and/or an unlimited fine. On summary conviction, the maximum penalty is imprisonment for six months and/or a fine up to the statutory maximum.

Burglary is an either way offence except in the following circumstances when it is an indictable only offence:

• it comprises the commission of, or an intention to commit, an offence which is triable only on indictment;
• the offence is committed in a dwelling and any person in the dwelling was subjected to violence or the threat of violence - section 17(1) and paragraph 28 of Schedule 1 Magistrates' Court Act 1980 (Archbold 1-28);
• the accused, if convicted, is liable to a minimum term of imprisonment for a period of three years under the provisions of section 111 Powers of Criminal Courts (Sentencing) Act 2000 (Archbold 5-2167). This applies when the accused is alleged to have committed a domestic burglary after 30 November 1999 and he has two convictions on separate occasions for domestic burglaries, both of which were committed after 30 November 1999, and s/he was 18 or over at the date of commission of the third burglary.

The elements of both offences of burglary are:

• Entry as a trespasser

Trespass means entry or presence on the premises without authority and can include a partial entry, for example, by a hand or an instrument through a letterbox or an open window.

• Building or part of a building

Building includes outhouses or sheds and inhabited vehicles or vessels.

The offence of burglary contrary to section 9(1)(a) involves the further element of an intention to commit one of the offences referred to in section 9(2).

The offence contrary to section 9(1)(b) involves the accused having committed one of the offences referred to in that sub-section.

Examples when a charge of burglary would be appropriate:

• When an accused breaks a shop window, reaches through and takes a radio;
• When a sneak thief enters office premises and steals from handbags or clothing.

Examples when a charge of theft would be more appropriate than a charge of burglary

• When an accused, who is a customer in a shop, reaches over the counter and steals money from the till or an assistant's handbag.

Charging considerations:

• When therey are any factual difficulties with the degree of entry, consideration should be given to charging another offence, for example theft.
• Complications may arise when a spouse or partner who has been excluded from the former matrimonial home returns there and takes property. When the issue of trespass is or may be difficult to prove, you should consider charging theft or attempted theft. Remember that the DPP's consent is required for such cases. (Refer to Consents to Prosecute, elsewhere in this guidance).
• When an accused has been formally barred from shop premises, the circumstances, which have resulted in the accused being excluded, may not be admissible in evidence on the basis that they result from alleged previous misconduct by the accused. If you form the view that the facts, which led to the accused being excluded, are unlikely to be admitted in evidence, or that it cannot be proved that the defendant knew about the notice, you should consider charging theft or attempted theft. The sentence for such a burglary would be unlikely to be more than for theft. The exclusion notice could be drawn to the court's attention when sentencing for theft.When the issue of trespass is or may be difficult to prove, you should consider charging theft or attempted theft.
• A person acting as lookout for a burglar should be charged as a principal with the full offence.
• Although an intent to steal may be readily inferred from possession of housebreaking equipment, the specific intent required under section 9(1)(a) to inflict GBH, to rape or to cause damage may be difficult to infer in the absence of admissions.Offences contrary to section 9 (1)(a) require proof of the specific intent at the time of entry to the premises. In the case of 'intent to steal', this may be readily inferred from the possession of housebreaking equipment. The specific intent to commit GBH, rape, or criminal damage may be more difficult to infer in the absence of admissions. In such circumstances, it may be appropriate to charge an offence of GBH, rape or criminal damage assuming there is sufficient evidence. The unauthorised entry would be an aggravating feature.
• When an accused enters premises and removes a motor vehicle, in order to charge an offence of burglary, it is necessary to prove an intention to permanently deprive the owner of the vehicle or of the vehicle keys. If the evidence in relation to the vehicle is consistent only with an offence of taking without consent, burglary should not be charged in relation to the entry to the premises unless other property such as the vehicle keys are taken and not recovered.

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Alternative Charges

• Being found on enclosed premises - section 4 Vagrancy Act 1824 (Archbold 31-123) is a summary only offence and carries a maximum sentence of 3 months imprisonment and/or a level 3 fine. This charge will be appropriate for an accused against whom there is insufficient evidence of burglary or attempt burglary, but who is found within an enclosed area for an unlawful purpose.
• Theft, GBH or Criminal Damage - if the element of trespass required for a charge under section 9(1)(a) cannot be proved.
• Trespass with intent to commit a sexual offence, contrary to section 63 Sexual Offences Act 2003.
• Going equipped to steal - if the accused is in possession of housebreaking implements.
• Taking without consent or aggravated taking without consent if the entry to the premises was solely to take a motor vehicle for the purpose of joy-riding.
• Attempted burglary - this may be appropriate if the degree of entry is in dispute, but the circumstances clearly demonstrate that an unauthorised entry to the premises was intended.

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Aggravated Burglary, contrary to section 10 of the 1968 Act

(Archbold 21-130)

Aggravated burglary is committed whenif an accused commits any burglary and at the time has with him any firearm, imitation firearm, weapon of offence, or any explosive.

Aggravated burglary is an indictable only offence, which carries a maximum sentence on conviction of carrying life imprisonment.

This offence should be chargeds only when it is clear that the accused had the firearm, weapon, or explosive at the time of the burglary. The relevant time is as follows:

• Under section 9(1)(a) - the time of entry;
• Under section 9(1)(b) - the time of the commission of the theft or attempted theft to the infliection or attempt to inflict GBH.

Charginge consideration

• If it is not clear that the accused had the firearm, imitation firearm, weapon of offence or the explosive at the time of the burglary you should charge the accused with burglary and consider additional charges of assault and possession of a firearm, offensive weapon or explosives, as appropriate.

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Attempt Burglary

Only charge this if there is clear evidence that he attempted entry with the necessary intent.

Alternative charges are:

• Criminal Damage (Archbold, 23-1)
• Going Equipped (Archbold, 21-324)

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Obtaining Property By Deception - Section 15 Theft Act 1968

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-172)

Use one charge for each obtaining, but there can be more than one representation in each charge.

You should generally have direct evidence from the person deceived to prove that the deception operated on their mind. This can be inferred however (Archbold, 21-198).

It is generally not possible to deceive a machine. Where a computer is involved an offence under the Computer Misuse Act may be appropriate if it is not possible to show a conspiracy to (defraud); section 1 Theft Act may also apply.

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Attempt Deception

Consider attempt if the deception is not operative because the victim knows it is false, or does not rely on it.

Deception: Existing, Not Future Facts

The deception must relate to en existing fact, not a future one. However a deception can relate to a present intention as to future events:

e.g. "by falsely representing that A then intended to give B 100 within 28 days" is acceptable, but - "by falsely representing that A would give B 100 within 28 days" is not (Archbold, 21-183).

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Obtaining Property By Deception: Overlap With Theft

In many cases obtaining property by deception will also be theft (R.v. Gomez (1993) A.C.442, HL) and (Archbold, 21-179).

Consider:

• Theft carries a lower minimum sentence;
• A charge should describe what actually happened and reflect the true criminality;
• The indictment or charges should be as simple as reasonable possible.

Generally, charge an obtaining of property by deception under section 15, not as theft.

Charge theft when a defendant has swapped price labels on an item to buy it cheaper. This avoids the argument that where the ticket is a bar code read by a machine, there was no deception operating on the mind of the till operator.

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Obtaining Property By Deception: Use Of Cheques And Cheque Cards

A person using a cheque implies 2 representations:

• He/she has an account with the bank
• The existing state of the account is such that in ordinary course the cheque will be met (Archbold, 21-187).

Where the cheque is backed with a cheque card, there is also an implied representation that he/she has authority to bind the bank to honour the cheque.

If a cheque is not met on presentation, the implied representation that it will be met is not necessarily false just because there are no funds in the account. Consider:

• Was there an overdraft facility?
• Can the defendant say he intended to put sufficient funds in before the cheque was presented? (Especially if the cheque is post dated.)
• Can we prove dishonesty, as opposed to commercial misjudgement?

If a stolen cheque or card is used, but the property in goods has passed or services have been performed before the cheque or credit card is tendered, consider a charge of evading liability by deception under section 2 (1) (b) Theft Act 1978 (Archbold, 21-343).

If the cheque is stolen, and the recipient knows it is, consider:

• Theft or handling of the cheque
• Conspiracy
• Making or using a forged instrument

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Obtaining Property By Deception: Use Of Credit Cards

Similar principles apply as to the use of cheques (Archbold, 21-194).

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Obtaining property by deception: credit sale and hire purchase agreements

If the defendant has obtained property by giving false details in a credit agreement, it is simplest to charge under section 15.

You should:

• examine the agreement, and
• set out all the false particulars in the charge

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Obtaining A Money Transfer By Deception - Section 15A Theft Act 1968 (As Amended By Theft (Amendment) Act 1996, Section 1.

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-213).

Unlike obtaining property by deception and theft, you do not have to prove intent permanently to deprive. (It is likely that such an intent will be involved, however.)

The transfer is usually done by:

• Cheque; or
• Telegraphic transfer; or
• Clearing House Automated Payment System ("CHAPS") order

In some cases e.g. a mortgage loan, the advance may be paid into the account of a third party (e.g. a solicitor acting for the building society) for onward payment to the vendor of the property. This does not affect the wording of the charge.

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Obtaining Services By Deception - Section 1 Theft Act 1978

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-341)

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Evasion Of Liability By Deception - Section 2 Theft Act 1978

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-343)

Section 2 Theft Act 1978 creates three offences.

You need evidence to prove an intent permanently to evade liability for all of them (Archbold, 21-346).

Examples:

• 2(1)(a) - Smith borrows 1,000 from Jones and then dishonestly tells him that he has been made redundant and cannot repay. Jones tells him he need not repay.
• 2(1)(b) - Smith borrows 1,000 from Jones to be repaid in a month. He never intends to repay and dishonestly gives Jones a cheque, which he knows will not be met.
• 2(1)(c) - a man waves a library card at a ticket inspector at a railway station. The inspector lets him through, believing he has a valid ticket.

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Obtaining A Pecuniary Advantage By Deception - Section 16 Theft Act 1968

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-215)

Sometimes this offence will overlap with section 15 or section 15A. When it does, charge one of those sections. They are much simpler.

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Making Off Without Payment - Section 31 Theft Act 1978

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-349)

For theft, the dishonesty and the appropriation must coincide in time. Sometimes it is not possible to prove this.

Consider Making off without payment if e.g.:

• Defendant fills up his car with petrol and drives off without paying
• Defendant has a meal in a restaurant and walks out without paying

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False Accounting - Section 17 Theft Act 1968

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-226).

False Accounting: No Intent Permanently To Deprive Needed

You need to prove defendant had a view to gain for himself or another, or intent to cause loss to another.

This gain or loss can be temporary or permanent, so you don't need to prove an intent permanently to deprive, as you do with theft or section 15 obtaining property by deception (Archbold, 21-234), e.g.-

A solicitor with a cash flow problem dishonestly "borrows" money by transferring it from his client account, where it is held in trust, to his office account to pay staff salaries. He creates false bills to conceal the fraud from his staff, and the auditors. After six months he is able to repay the money and does so. False accounting, not theft, would be the proper charge.

False Accounting: Evidence Of Accounting Purpose

You need to prove that the item was required for an accounting purpose. You should request evidence of the actual use of the document if possible as only a little evidence of this may make the difference between conviction and acquittal (R.v.Sundhers (1998) Crim.L.R.497) and (Archbold, 21-232); though it may be open to the court to find this without such evidence (R.v.Manning (1998) 2 Cr. App.R.461, CA).

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False Accounting: Overlap With Theft

Generally you should decide whether false accounting or theft is more suitable, and only charge one offence for each transaction.

Occasionally it may be best to charge both if a temporary gain could be the intent (R.v. Eden, 55 Cr.App.R.193), and (Archbold, 21-238), but consider:

• The need to keep matters simple
• Both false accounting and theft carry seven years' imprisonment maximum

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Procuring The Execution Of A Valuable Security By Deception

Specimen Indictment (Indictment Precedent Manual)

Definition (Archbold, 21-243)

"Execution" means doing something to the face of the document e.g. signing it, or carrying out formalities to make it valid. It does not mean an act which merely carries out the instructions on the document e.g. delivering goods or paying money (R.v. Kassim (1992) 1 A.C. 9, HL.) and (Archbold, 21-252).

If a section 15 offence can be proved, charge that, as it is simpler.

Obtaining advances from banks and building societies (including mortgage advances) should generally be charged under section 15A.

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Taking a vehicle without the owners consent/aggravated vehicle taking

Refer to Driving Offences incorporating the Charging Standard, elsewhere in the guidance.

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Code for Crown Prosecutors - Public Interest Considerations

Offences Triable Only On Indictment

The Theft Acts create serious offences of dishonesty, including robbery, aggravated burglary and blackmail, as well as less serious offences such as theft of items of small value. Only in exceptional circumstances will it not be in the public interest to prosecute offences, which are triable only on indictment.

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Arguments Over Ownership of Property Including Arguments Between Spouses Or Other Domestic Relationships

The criminal law may be an unsuitable method to regulate such disputes. However situations will arise where the issues are clear and the offences are serious. If so, do not exclude the possibility of prosecution simply because the offence arose out of a dispute over ownership of the property.

Check before the trial whether the parties have reconciled their disputes. This may affect both the evidential, and the public interest test. In such cases prosecutors should also ensure familiarity with the Domestic Violence Guidance for Prosecutors.

Section 80 Police and Criminal Evidence Act 1984 governs the compellability of spouses in criminal proceedings. The prosecution cannot currently compel a spouse to give evidence for Theft Act offences. (Archbold, 8-46).

The Director's Consent is required for a prosecution of a husband or wife for stealing the property of his or her spouse (and the inchoate offences) unless:

1. The husband and wife are jointly charged with committing the offence; or
2. By virtue of any judicial decree the offender and spouse are under no obligation to cohabit at the time of the offence.

The consent can be given locally and the case does not need referring to Headquarters (refer to Consents to Prosecute, elsewhere in the guidance) and (Archbold, 21-334).

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Loss To A Third Party

Where there is a domestic relationship between the victim and the offender, there may also be a loss to a third party e.g. where a son steals his father's credit card and uses it to obtain goods from a store. There may be a public interest in a prosecution for obtaining the goods, even in circumstances where there is no prosecution for theft of the card.

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Borderline Cases Between Civil And Criminal Liability

These sometimes amount to little more than non-payment of a civil liability or a dispute over ownership of property. Consider these public interest factors:

• Are there civil law concepts, which will be difficult for the jury such as contractual obligations or constructive trusts?
• Does the complainant have a clear and adequate remedy in civil law?
• Is it best left to the civil courts to establish liability or ownership?

(See also Archbold, 21-336)

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Breach Of Trust

This is a factor in favour of prosecution. It most commonly arises when the offender is an employee of the victim (although it may arise in other contexts, such as theft by a carer from someone in their care). Consider:

• The seniority of the defendant within any relevant organisation;
• The degree of trust placed in him or her;
• The period of time during which the trust has been abused;
• The degree of suspicion cast on fellow employees, or partners;
• The extent of the loss or gain;
• The extent to which the offender has sought to hide their activities;
• The impact of the offence on the public, and public confidence.

An employer may have an ulterior motive in making a complaint. Consider:

• Has the conduct been tacitly condoned over a period of time?
• Is there an ongoing dispute between the employer and employee?

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Reparation

Consider:

• Whether the payment was a spontaneous and genuine act of remorse;
• The gravity of the offence;
• The extent of the loss;
• Whether the loss can be adequately compensated for in money.

Offenders must not avoid prosecution simply because they can pay compensation.

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Useful References

Archbold, 2-37
Home Office Circular 19/1999
Archbold, 2-44
Drafting the Indictment, elsewhere in the guidance
Archbold 21-6
R v Ghosh 75 CR App R 154
Archbold 21-24
Archbold 21-23
Archbold 21-31
Lawrence v. Metropolitan Police Commissioner 73 Cr App R 1
Archbold 21-33
R v Gomez 96 Cr App R 359
Archbold 21-34
Archbold 21-48
Archbold, 21-50
Archbold 22-5
R. v. Hallam (1993) CLR 323
Blackstone's, B4.3
Regina (A) v. Snaresbrook Crown Court, Times Law Report July 12th 2001
Archbold 21-58
Archbold 21-76
Robbery, in this chapter
Archbold 21-172
Archbold 21-141
Archbold 21-349
Archbold 21-165
Archbold 1-1443a
Archbold 21-2801 to 21-293
Archbold, 21-324
Archbold 21-521
Archbold 21-164
R v Ghosh 75 App R 154
Archbold, 21-24
Archbold, 25-363
Archbold 21-271
R v Ghosh 75 Cr App R 154
Archbold, 21-24
Archbold 9-83
Archbold 21-319
Archbold 21-295
Archbold 21-276
R v Gomez 96 Cr App R 359
Archbold, 33-11, 33-12, 33-13 and 33-29, respectively
Money Laundering, elsewhere in the guidance
Archbold 34-84
R v Shivpuri [1987] AC 1
Archbold 25-463
Archbold, 21-3133 to 21-3187
Archbold 21-85
R v Guy 93 Cr App R 108
Archbold 24-49
Archbold 21-103
Archbold 21-108
Archbold 21-109
Archbold 21-110
Archbold 1-28
Consents to Prosecute, elsewhere in the guidance
Archbold 5-2167
Section 63 Sexual Offences Act 2003
Archbold 21-130
Archbold, 23-1
Archbold, 21-324
Archbold, 21-172
Archbold, 21-198
Archbold, 21-183
R.v. Gomez (1993) A.C.442, HL
Archbold, 21-179
Archbold, 21-187
Archbold, 21-343
Archbold, 21-194
Archbold, 21-213
Archbold, 21-341
Archbold, 21-343
Archbold, 21-346
Archbold, 21-215
Archbold, 21-349
Archbold, 21-226
Archbold, 21-234
R.v.Sundhers (1998) Crim.L.R.497
Archbold, 21-232
R.v.Manning (1998) 2 Cr. App.R.461, CA
R.v. Eden, 55 Cr.App.R.193
Archbold, 21-238
Archbold, 21-243
R.v. Kassim (1992) 1 A.C. 9, HL.
Archbold, 21-252
Driving Offences incorporating the Charging Standard, elsewhere in the guidance
Archbold, 8-46
Archbold, 21-334
Archbold, 21-336

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