Robbery
CRIMINAL JUSTICE (THEFT AND FRAUD OFFENCES) ACT 2001
REVISED
Updated to 1 November 2023
AN ACT TO AMEND THE LAW RELATING TO STEALING AND RELATED OFFENCES AND THEIR INVESTIGATION AND TRIAL; TO GIVE THE FORCE OF LAW TO PROVISIONS OF THE CONVENTION ON THE PROTECTION OF THE EUROPEAN COMMUNITIES’ FINANCIAL INTERESTS DONE AT BRUSSELS ON 26 JULY 1995 AND THE THREE PROTOCOLS TO THAT CONVENTION; AND TO PROVIDE FOR CONSEQUENTIAL AND RELATED MATTERS. [19th December, 2001]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART 1
Preliminary
Short title and commencement.
1.—(1) This Act may be cited as the Criminal Justice (Theft and Fraud Offences) Act, 2001.
(2) Subject to subsection (3), this Act shall come into operation on such day or days as may be appointed by order or orders made by the Minister, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions of this Act.
(3) Parts 5 and 7 and sections 23, 53, 58 and 60(1) shall come into operation on the passing of this Act.
Annotations
Editorial Notes:
E1
Power pursuant to subs. (2) exercised (1.08.2011) by Criminal Justice (Theft and Fraud Offences) Act 2001 (Commencement) Order 2011 (S.I. No. 394 of 2011).
2. The 1st day of August 2011 is appointed as the day on which section 57 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (No. 50 of 2001) shall come into operation.
E2
Power pursuant to subs. (2) exercised (1.08.2002) by Criminal Justice (Theft and Fraud Offences) Act 2001 (Commencement) Order 2002 (S.I. No. 252 of 2002).
The 1st day of August 2002 is fixed as the day on which the remaining provisions (other than section 57) of the Criminal Justice (Theft and Fraud Offences) Act 2001 shall come into operation, that is to say:
(a) Parts 1, 2, 4 and 6, and
(b) section 16 to 22, 54 to 56, 59, 60(2) and 61 to 65.
Interpretation (general).
2.—(1) In this Act—
“appropriates” has the meaning given to it by section 4(5);
“deception” has the meaning given to it by subsection (2);
“dishonestly” means without a claim of right made in good faith;
“document” includes—
(a) a map, plan, graph, drawing, photograph or record, or
(b) a reproduction in permanent legible form, by a computer or other means (including enlarging), of information in non-legible form;
“gain” and “loss” have the meanings given to them by subsection (3);
“information in non-legible form” means information which is kept (by electronic means or otherwise) on microfilm, microfiche, magnetic tape or disk or in any other non-legible form;
“owner” and “ownership”, in relation to property, have the meanings given to them by subsection (4);
“premises” includes a vehicle, vessel, aircraft or hovercraft or an installation in F1[the territorial sea or in a designated area (within the meaning of the Maritime Jurisdiction Act 2021)] or a tent, caravan or other temporary or movable structure;
“property” means money and all other property, real or personal, including things in action and other intangible property;
“record” includes any information in non-legible form which is capable of being reproduced in permanent legible form;
“stealing” means committing an offence under section 4, and cognate words shall be construed accordingly;
“stolen property” includes property which has been unlawfully obtained otherwise than by stealing, and cognate words shall be construed accordingly;
“theft” has the meaning given to it by section 4(1); and
“unlawfully obtained” means obtained in circumstances constituting an offence, and cognate words shall be construed accordingly.
(2) For the purposes of this Act a person deceives if he or she—
(a) creates or reinforces a false impression, including a false impression as to law, value or intention or other state of mind,
(b) prevents another person from acquiring information which would affect that person’s judgement of a transaction, or
(c) fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom he or she stands in a fiduciary or confidential relationship,
and references to deception shall be construed accordingly.
(3) For the purposes of this Act—
(a) “gain” and “loss” are to be construed as extending only to gain or loss in money or other property, whether any such gain or loss is temporary or permanent,
(b) “gain” includes a gain by keeping what one has, as well as a gain by getting what one has not, and
(c) “loss” includes a loss by not getting what one might get, as well as a loss by parting with what one has.
(4) For the purposes of this Act—
(a) a person shall be regarded as owning property if he or she has possession or control of it, or has in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest);
(b) where property is subject to a trust, the persons who own it shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right;
(c) where a person receives property from or on behalf of another, and is under an obligation to that other person to retain and deal with that property or its proceeds in a particular way, that other person shall be regarded (as against the first-mentioned person) as the owner of the property;
(d) where a person gets property by another’s mistake and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then the person entitled to restoration shall to the extent of that obligation be regarded (as against the first-mentioned person) as the owner of the property or its proceeds or an amount equivalent to its value, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property, proceeds or such amount;
(e) property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation,
and references to “owner” and “ownership” shall be construed accordingly.
(5) (a) A reference in this Act to a Part, section or Schedule is a reference to a Part, section or Schedule of this Act unless it is indicated that a reference to some other Act is intended.
(b) A reference in this Act to a subsection, paragraph or subparagraph is to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended.
(c) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended, adapted or extended, whether before or after the passing of this Act, by or under any subsequent enactment.
Annotations:
Amendments:
F1
Substituted (22.11.2021) by Maritime Jurisdiction Act 2021 (28/2021), s. 20(3) and sch. 2 item 23, S.I. No. 601 of 2021.
Repeals, etc.
3.—(1) Subject to section 65, the Acts specified in Schedule 1 are repealed to the extent specified in the third column of that Schedule.
(2) Any offence at common law of larceny, burglary, robbery, cheating (except in relation to the public revenue), extortion under colour of office and forgery is abolished.
(3) The abolition of a common law offence mentioned in subsection (2) shall not affect proceedings for any such offence committed before its abolition.
PART 2
Theft and Related Offences
Annotations
Editorial Notes:
E3
Liability for repayment on conviction under Part provided (1.12.2005) by Social Welfare (Consolidation) Act 2005 (26/2005), s. 337, S.I. No. 923 of 2005.
Theft.
4.—(1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.
(2) For the purposes of this section a person does not appropriate property without the consent of its owner if—
(a) the person believes that he or she has the owner’s consent, or would have the owner’s consent if the owner knew of the appropriation of the property and the circumstances in which it was appropriated, or
(b) (except where the property came to the person as trustee or personal representative) he or she appropriates the property in the belief that the owner cannot be discovered by taking reasonable steps,
but consent obtained by deception or intimidation is not consent for those purposes.
(3) (a) This subsection applies to a person who in the course of business holds property in trust for, or on behalf of, more than one owner.
(b) Where a person to whom this subsection applies appropriates some of the property so held to his or her own use or benefit, the person shall, for the purposes of subsection (1) but subject to subsection (2), be deemed to have appropriated the property or, as the case may be, a sum representing it without the consent of its owner or owners.
(c) If in any proceedings against a person to whom this subsection applies for theft of some or all of the property so held by him or her it is proved that—
(i) there is a deficiency in the property or a sum representing it, and
(ii) the person has failed to provide a satisfactory explanation for the whole or any part of the deficiency,
it shall be presumed, until the contrary is proved, for the purposes of subsection (1) but subject to subsection (2), that the person appropriated, without the consent of its owner or owners, the whole or that part of the deficiency.
(4) If at the trial of a person for theft the court or jury, as the case may be has to consider whether the person believed—
(a) that he or she had not acted dishonestly, or
(b) that the owner of the property concerned had consented or would have consented to its appropriation, or
(c) that the owner could not be discovered by taking reasonable steps,
the presence or absence of reasonable grounds for such a belief is a matter to which the court or jury shall have regard, in conjunction with any other relevant matters, in considering whether the person so believed.
(5) In this section—
“appropriates”, in relation to property, means usurps or adversely interferes with the proprietary rights of the owner of the property;
“depriving” means temporarily or permanently depriving.
(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.
Annotations:
Editorial Notes:
E4
Offence under section designated a relevant offence for purposes of Criminal Justice Act 2011 (9.08.2011) by Criminal Justice Act 2011 (22/2011), s. 3 and sch. 1 para. 23, S.I. No. 411 of 2011.
Exceptions to theft.
5.—(1) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by that person of rights which that person believes himself or herself to be acquiring shall, by reason of any defect in the transferor’s title, amount to theft of the property.
(2) A person cannot steal land, or things forming part of land and severed from it by or under his or her directions, except where the person—
(a) being a trustee, personal representative or other person authorised by power of attorney or as liquidator of a company or otherwise to sell or dispose of land owned by another, appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him or her, or
(b) not being in possession of the land, appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed, or
(c) being in possession of the land under a tenancy or licence, appropriates the whole or part of any fixture or structure let or licensed to be used with the land.
(3) For the purposes of subsection (2)—
(a) “land” does not include incorporeal hereditaments,
“tenancy” means a tenancy for years or any less period and includes an agreement for such a tenancy,
“licence” includes an agreement for a licence,
and
(b) a person who after the expiration of a tenancy or licence remains in possession of land shall be treated as having possession under the tenancy or licence, and “let” and “licensed” shall be construed accordingly.
(4) A person who picks mushrooms or any other fungus growing wild on any land, or who picks flowers, fruit or foliage from a plant (including any shrub or tree) growing wild on any land, does not (although not in possession of the land) steal what is picked, unless he or she does it for reward or for sale or other commercial purpose.
(5) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed or ordinarily kept in captivity, or the carcase of any such creature, unless it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.
Robbery.
14.—(1) A person is guilty of robbery if he or she steals, and immediately before or at the time of doing so, and in order to do so, uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.
(2) A person guilty of robbery is liable on conviction on indictment to imprisonment for life.
Annotations:
Editorial Notes:
E12
Offence under section may be re-tried with court approval as provided (1.09.2010) by Criminal Procedure Act 2010 (27/2010), ss. 15-18 and sch. para. 21, S.I. No. 414 of 2010.
Cases
RP & Ors v Director of Public Prosecutions
[2012] EWHC 1657 (Admin) (25 May 2012)
MR JUSTICE MITTING: This appeal raises a narrow and far from straightforward question. On 31 January 2011, Highbury Corner Magistrates’ Court found all three appellants, then juveniles, guilty of robbery, and two of them, who I shall call RP and GP, guilty of racially aggravated assault. The second convictions arose from an incident which took place after that which was charged as robbery and has no bearing upon it. All three appellants appealed by case stated against their conviction for robbery only. It is accepted that if I allow this appeal that I should substitute convictions for theft and leave the sentence imposed by the magistrates, which has been served, undisturbed.
The relevant facts as found by the Magistrates’ Court are clearly set out in the stated case:
“(i) On 11 August 2010 RP snatched a cigarette from Mayura Gill’s hand.
(ii) The snatch amounted to the use of force by RP and force was used in order to steal the cigarette…
(iv) There was a prearranged plan by all three appellants to rob Mrs Gill.”
In their summary of the evidence, the court, which plainly accepted the evidence of Mrs Gill as truthful and accurate, set out a little more of what she had said. She said that she had become aware of the three appellants, who walked past her and her husband and another man. They asked Mrs Gill for a cigarette, to which she replied she did not have a spare one. She explained that when asked for a cigarette she genuinely thought that the young woman asking was asking for a cigarette and at that time no violence was used or threatened. It seems that immediately after she said that she did not have a spare one, one of the appellants, RP, snatched the cigarette that she had in her hand. It was obviously lit because the cigarette was then passed around and smoked by the appellants. She described asking for the cigarette back, stated that one of the appellants had shoved her and the others were talking about her to her face in insulting terms.
The prosecution put its case on the basis that the snatch of the cigarette alone amounted to the use of force on Mrs Gill and did so whether or not there was any direct contact between the hand of RP and the hand of Mrs Gill. The prosecution did not suggest that this was a continuing incident so that the shoving which Mrs Gill described immediately after the cigarette had been taken from her and the three appellants standing around insulting her themselves amounted to the use or threat of force upon her. The case raised, therefore, a single and very narrow issue: does the snatching of a cigarette from between the fingers of a person smoking it, without physical contact between the snatcher and the person smoking it, amount to robbery, provided, of course, that the elements of theft are present? Later on in the case the court stated that:
“The complainant’s use of the word ‘snatch’ suggested that force was used.”
The simple question posed by the case is:
“Were we correct to refuse a submission of no case to answer in respect of the allegation of robbery, on the basis that the act of snatching the cigarette from the complainant’s hand, in the circumstances described, was sufficient to constitute ‘force’ for the purposes of Section 8 of the Theft Act 1968?”
Under the law as it existed before the enactment of the Theft Act, the answer would unquestionably have been no. What the old law required was that greater force than was merely required to take an object was required to be applied before the offence became an offence of robbery. Section 8 of the Theft Act provides:
“(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”
As a matter of language, it is important to note that the statute requires the use of “force on any person” or putting “any person in fear of being then and there subjected to force”. Although the old distinctions under the Larceny Act have gone, there remains a basic requirement for the commission of the offence that force is used on a person.
Ms Zeutler-Munro, for the appellants, accepts that the snatching of a handbag from a woman holding it on her shoulder or in her hand will ordinarily amount to robbery because by the very act of pulling on the handbag force will inevitably be applied to the person of the woman from whom the handbag is snatched. Her concession is a proper and inevitable one in the light of the case law as it has developed since the enactment of the Theft Act.
The starting point is Dawson & James [1977] 64 Cr App R 170. The facts were that at Liverpool Pier Head a sailor on shore leave waiting for the ferry was surrounded by two men, one standing on either side of him, who nudged him on the shoulder, causing him to lose his balance. While trying to keep his balance, a third man got his hand into the sailor’s pocket and took his wallet. It was contended before the trial court that that did not amount to the offence of robbery. The judge left the offence to the jury, who convicted him. In giving the judgment of the court, Lawson LJ said the following:
“The choice of the word ‘force’ is not without interest because under the Larceny Act 1916 the word ‘violence’ had been used, but Parliament deliberately on the advice of the Criminal Law Revision Committee changed that word ‘force’. Whether there is any difference between ‘violence’ or ‘force’ is not relevant for the purposes of this case; but the word is ‘force’. It is a word in ordinary use. It is a word which juries understand. The learned judge left it to the jury to say whether jostling a man in the way which the victim described to such an extent that he had difficulty in keeping his balance could be said to be the use of force. The learned judge, because of the argument put forward by Mr Locke, went out of his way to explain to the jury that force in these sort of circumstances must be substantial to justify a verdict.
Whether it was right for him to put that adjective before the word ‘force’ when Parliament had not done so we will not discuss for the purposes of this case. It was a matter for the jury. They were there to use their common sense and knowledge of the world. We cannot say that their decision as to whether force was used was wrong. They were entitled to the view that force was used.”
The force there used, although not substantial on one view, was nonetheless direct force applied to the person of the sailor.
The next case in point is R v Clouden, only reported, as far as I know, in the Criminal Law Review for 1987 page 56. The appellant approached a woman who was carrying a shopping basket in her left hand from behind and wrenched it down and out of her grasp with both hands and ran off with it. He was convicted of robbery. In dismissing his appeal, the court observed that:
“The old cases distinguished between force on the actual person and force on the property which in fact causes force on the person but, following Dawson and James, the court should direct attention to the words of the statute without referring to the old authorities. The old distinctions have gone. Whether the defendant used force on any person in order to steal is an issue that should be left to the jury. The judge’s direction to the jury was adequate. He told the jury quite clearly at the outset what the statutory definition was, though thereafter he merely used the word ‘force’ and did not use the expression ‘on the person’.”
It seems to me from that brief report of the decision that the court in Clouden had in mind the need for the prosecution to prove the use of “force on any person” and not merely “force” but concluded that despite the lack of repeated reference to “force on any person” in the summing-up, it was nonetheless adequate because the judge had drawn attention to the statutory definition at some part of his summing-up. That decision attracted an interesting commentary from Professor Smith, the author of the Theft Act:
“Robbery at common law and under the Larceny Acts was governed by the principle stated by Garrow B in Gnosil [1824] 1 C&P 304: ‘The mere act of taking being forcible will not make this offence highway robbery; to constitute the crime of highway robbery the force used must be either before or at the time of taking and must be of such a nature to show it was intended to overpower the party robbed and prevent his resisting, and not merely to get possession of the property stolen…’ According to this statement, it would appear there was no evidence in the present case of robbery, as it was before the Theft Act 1968 came into effect.
As the present court was aware, the Criminal Law Revision Committee did not intend that the draft bill which became the Theft Act 1968 should affect this rule. In their Eighth Report (Cmnd. 2997) para.~65, the Committee stated: ‘We should not regard mere snatching of property such as a handbag, from an unresisting owner as using force for the purpose of the definition, though it might be so if the owner resisted.’ The present decision and Dawson and James, which foreshadowed it, show that the Committee would have been wise to state the principle in Gnosil in order to preserve it because the wording of the section left open the construction now put upon it. It is a warning to the codifier that, if he intends the refinements of the law he is codifying to be observed, he should state them. Opinions will of course differ on where lines should be drawn; but it may well be thought that conduct such as that in the present case is more akin to that of the pickpocket than the bank robber and is quite adequately dealt with by the offence of theft which is, after all, punishable with a maximum of ten years imprisonment.”
The force of those comments is not reduced by the fact that the maximum sentence has now been reduced to 7 years.
Other more recent authorities have been cited to me but they do no more than make passing observations and do not contain statements forming part of the decision of the court which bind me.
I refer finally to an extract from a work bearing Professor Smith’s name but in fact now written by Professor Ormerod. If it is not Professor Ormerod’s words that I am quoting it shows that Professor Smith must have changed his mind. In paragraph 7.08 of Smith’s Law of Theft Ninth Edition, the author observes:
“Force
The term ‘force’ was preferred by the CLRC to ‘violence’, which was used in the Larceny Act 1916 to designated an aggravated form of robbery. Though the difference, if any, between the words is an elusive one, it is probable that ‘force’ is a slightly wider term. Thus it might be argued that simply to hold a person down is not violence but it certainly involves the use of force against the person. Force denotes any exercise of physical strength against another whereas violence seems to signify a dynamic exercise of strength as by striking a blow. In Dawson, it was held that, where D nudges V so as to cause him to lose his balance and enable D to steal, it is a question of fact for the jury whether the nudge amounts to ‘force’. It is submitted that it would be better if the law gave an answer to the question – preferably in the affirmative. It is submitted that no jury could reasonably find that the slight physical contact that might be involved where D picks V’s pocket would amount to a use of force.”
I agree with those observations. This case sits neatly in between the two paradigm examples given by the author. There was, on the facts found by the court, no physical contact between the hand of RP and the hand of Mrs Gill. The court was invited to consider the case on the basis that the mere snatching of a cigarette from between the fingers of Mrs Gill was sufficient to amount to the use of force on her person. I remind myself that borderline questions, such as a question of what amounts to the use of force on a person when the force used is minimal, are questions for the court at first instance and that it is not for an appellate court to put a gloss on the words in Section 8 of the Theft Act.
However, in the stated case, the court did not find as a fact that RP used force on Mrs Gill. What the court found clearly was that a cigarette was snatched, on the prosecution case, without there being contact with Mrs Gill, that that amounted to the use of force by RP and that the force was used in order to steal the cigarette. Those findings were clearly all open to the court but they do not amount to a finding that force was used on the person of Mrs Gill, unless the mere removal of a cigarette from between her fingers itself is capable of amounting to the use of force upon her person.
In my judgment, it is not. This case falls squarely on the side of pickpocketing and such like, in which there is no direct physical contact between thief and victim. It cannot be said that the minimal use of force required to remove a cigarette from between the fingers of a person suffices to amount to the use of force on that person. It cannot cause any pain unless, perhaps, the person resists strongly, in which case one would expect inevitably that there would be direct physical contact between the thief and victim as well. The unexpected removal of a cigarette from between the fingers of a person is no more the use of force on that person than would be the removal of an item from her pocket. This offence is properly categorised as simple theft.
I therefore allow the appeal of the three appellants against their conviction for robbery, substitute convictions for theft and leave the sentence undisturbed.
Are there any applications?
MS ZEUTLER-MUNRO: No, my Lord.
MR JUSTICE MITTING: Can you confirm, Ms Zeutler-Munro, as your appear to be accurately informed about all matters relating to appeals by way of case stated in criminal cases, but which many of your brethren are not, that where you have a representation order, as you do, you do not need any order from this court?
MS ZEUTLER-MUNRO: That has been my understanding of it.
MR JUSTICE MITTING: I am glad to have it confirmed. Thank you both for the interesting arguments.
Martins, R. v (Rev 1)
[2021] EWCA Crim 223 (18 February 2021)
LORD JUSTICE HOLROYDE: Joseph Martins was convicted by a jury of offences of robbery, contrary to section 8 of the Theft Act 1968, and inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861. He was sentenced to a total term of 27 months’ imprisonment. He now appeals, by leave of the single judge, against his conviction for robbery.
The events giving rise to the charges occurred on 1 October 2018. The appellant was then aged 21. His friend Christian Thembo was vacating a room which he had been renting from Rokibul Dewan. Mr Thembo and Mr Dewan had arranged to meet in order to sort out sums payable in respect of rent and deposit. When they left the building at the conclusion of that meeting, the appellant was outside. Mr Dewan was holding a mobile phone and a bunch of keys. Those items were taken from him, he said by the appellant. Mr Dewan moved to block a nearby gate through which the appellant and Mr Thembo would have to pass. His evidence was that he was first pushed by Mr Thembo and then held in a bear hug and spun aside by the appellant, causing him to fall and break his leg.
When arrested and interviewed under caution, the appellant made no comment, but put forward a prepared statement in which he described Mr Thembo taking Mr Dewan’s phone and keys. He made a similar allegation in his defence statement.
The appellant and Mr Thembo were charged on an indictment containing three counts: a joint charge of robbery (count 1); a joint charge of inflicting grievous bodily harm (count 2); and a charge against the appellant alone of theft (count 3), as an alternative to count 1. They stood trial in the Crown Court at Aylesbury before Mr Recorder Guest and a jury.
Mr Martin, then as now appearing for the prosecution, opened count 1 to the jury on the basis that both defendants had used force in order to escape with the keys and the phone. As we understand it, the prosecution case was that the act of appropriating the phone and keys was still continuing at the time of the encounter at the gate, and that it was that encounter which constituted the robbery. No doubt for that reason, Mr Martin did not go into any detail when examining Mr Dewan in chief about the circumstances of the initial taking outside the building. In describing that taking, Mr Dewan (who gave his evidence through an interpreter) said that he had “a bunch of keys and my iPhone in my hand” but also spoke of those items being “in two hands”. He said that the appellant “grabbed” those items and walked towards the gate. In cross-examination, in response to the suggestion that the appellant had not taken anything from him, Mr Dewan repeated that he did and added: “He just snatched those items.”
At the conclusion of the prosecution evidence, both defendants made submissions of no case to answer. The recorder indicated that he would not allow count 1 to continue against Mr Thembo, and would not allow the prosecution to pursue that charge against the appellant on the basis of a continuing act of appropriation coupled with violence at the gate. Mr Martin responded that he would instead put count 1 against the appellant “on the basis that that did constitute some sort of force by taking it from his hands.”
Miss Bald, representing the appellant at trial as she does in this court, understandably objected to that change of course. She pointed out that she had conducted the defence case, and her cross-examination of Mr Dewan, on the basis of the way the prosecution had thus far chosen to advance count 1. The recorder did not accept that there was any unfairness, or none that could not be cured by recalling Mr Dewan to face further cross-examination.
Miss Bald went on to submit that in any event there was no case to answer on the revised basis of count 1, because there was insufficient evidence for the jury properly to find that force was used on Mr Dewan to steal his property. She referred to case law, to which we shall return shortly.
The recorder ruled against her. He concluded his ruling at page 24 of the transcript with these words:
“It seems to me, here, that it would be open to the jury to find that the use of the word ‘snatch’, bearing in mind the items involved are a mobile phone and a set of keys, each being held in one or other of the hands of the victim – it would be open to the jury to find on the evidence that force was used to the person, and I decline the submission.”
Both defendants then gave evidence. Each asserted that it was the other who had taken Mr Dewan’s items. The jury, as we have said, convicted the appellant of counts 1 and 2. They acquitted Mr Thembo.
The ground of appeal is that the recorder was wrong to refuse the submission of no case to answer. Miss Bald invites our attention to DPP v RP, GP and RW [2012] EWHC 1657 Admin and the earlier case of R v Dawson and James (1977) 64 Cr.App.R 170. She accepts that robbery may be committed by the indirect rather than direct application of force to the person of the victim. She argues, however, that even though it may in principle be sufficient for the force to be applied indirectly to the victim, there was in this case no evidence that the appellant had done that to Mr Dewan. A reference by Mr Dewan to the appellant “snatching” the items was not sufficient to convert the theft into robbery. Miss Bald points out that because of the way the prosecution case had initially been conducted, there had been no investigation with Mr Dewan of how he was holding the items, or of what exactly happened when they were taken from him. She argues that the jury should not have been left to speculate and to fill in gaps in the evidence, particularly when the prosecution had put forward their case on a basis which was then shown to have been fundamentally flawed.
Mr Martin resists the appeal. He submits that on a charge of robbery it is not necessary for the prosecution to prove direct physical contact between robber and victim. He relies on R v Clouden [1987] Crim.L.R 56. He submits that as a matter of logic and common-sense, and having regard to the nature, size and shape of the mobile phone and a bunch of keys, the jury were entitled to conclude that the “grabbing” of those items amounted to force used upon the person. The fact that two items were taken, and not merely one, was another relevant consideration. The recorder was therefore correct to reject the submission of no case to answer and to let the case go to the jury for their determination as to whether the charge of robbery had been proved.
We are grateful to both counsel for their written and oral submissions, and in particular for the clarity and focus of their oral submissions to us this morning.
Section 8(1) of the Theft Act 1968 provides:
“(1) A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.”
The statute itself does not contain any definition of the words “uses force on any person”. They were considered in some detail by Mitting J in DPP and RP, GP and RW. The defendants in that case, who were juveniles, were charged with robbery. They had asked a woman for a cigarette. When she said she did not have a spare one, one of the defendants snatched the cigarette which she was holding between the fingers in her hand. A submission of no case to answer, on the basis that the snatching of the cigarette could not constitute the use of force on a person under section 8, was rejected by the Youth Court. The defendants were convicted and appealed by way of case stated. Mitting J in the course of his judgment referred to R v Dawson and James, in which the Court of Appeal had held that a charge of robbery had properly been left to the jury where the evidence of the victim was that two men had nudged him in the shoulder and jostled him so that he had difficulty keeping his balance, and a third man had taken his wallet from his pocket. Mitting J noted that in that case the force used, although not substantial, had been directly applied to the person of the victim.
Mitting J then considered Clouden, in which the appellant had been convicted of robbery after approaching a woman from behind and wrenching her shopping basket down and out of her grasp. His appeal against conviction was dismissed. The court held that “whether the defendant used force on any person in order to steal is an issue that should be left to the jury.” We observe that in that case there was no direct application of force to the person of the victim. We note also that in DPP v RP, GP and RW itself at paragraph 7, counsel for the appellants had properly conceded that “the snatching of a handbag from a woman holding it on her shoulder or in her hand will ordinarily amount to robbery because by the very act of pulling on the handbag force will inevitably be applied to the person of the woman from whom the handbag is snatched.”
Mitting J then referred with approval to a submission in Smith’s Law of Theft (9th Edition) that “no jury could reasonably find that the slight physical contact that might be involved where D picks V’s pocket would amount to a use of force.” He noted that the case stated before him did not include any finding that force had been used upon the person of the victim “unless the mere removal of a cigarette from between her fingers itself is capable of amounting to the use of force upon the person.” He continued as follows at paragraph 15:
“In my judgment, it is not. This case falls squarely on the side of pickpocketing and such like, in which there is no direct physical contact between thief and victim. It cannot be said that the minimal use of force required to remove a cigarette from between the fingers of a person suffices to amount to the use of force on that person. It cannot cause any pain unless, perhaps, the person resists strongly, in which case one would expect inevitably that there would be direct physical contact between the thief and victim as well. The unexpected removal of a cigarette from between the fingers of a person is no more the use of force on that person than would be the removal of an item from her pocket. This offence is properly categorised as simple theft.”
The learned judge therefore allowed the appeals against the convictions of robbery and substituted convictions of theft.
We think it clear that robbery does not necessarily require direct physical contact between robber and victim. Often of course it will, but it is in our view established that the indirect use of force on a person can be sufficient. For example, where a robber wrenches a bag away from the grasp of his victim it is open to the jury, for the reasons which Mitting J gave at paragraph 7 of his judgment, to find that the robber had used force on a person. We respectfully agree with the observation of the learned authors of Smith, Hogan and Ormerod’s Criminal Law (5th Edition) at section 19.1.2.1 that:
“… it will be robbery where, for example, a struggle, even a fleeting one, takes place for possession of a handbag or where an earring is snatched tearing the lobe of the ear.”
There will however sometimes be cases in which a jury could not properly find that the actions of a thief amounted to the use of force on any person: for example, if an opportunist thief intervened to snatch a bank note which one person was passing to another. On a submission of no case to answer being made in relation to a charge of robbery, it will be for the judge to decide whether the evidence taken at its highest is such that a jury could properly find that the defendant had used force on the victim.
In the present case, we can well understand why Miss Bald objected to the change in the prosecution case. The prosecution would have had only themselves to blame if, having conducted the case on one basis, they had found themselves lacking in a sufficient evidential foundation then to conduct it on a different basis. As it was, however, they did have a sufficient evidential foundation. On the evidence as it stood at the conclusion of the prosecution case, although not at that point a strong case of robbery, it was in our view properly open to a jury to find that Mr Dewan, when carrying his phone and keys, was gripping them so that they would not fall or slip from his hands; that his description of the appellant “grabbing” or “snatching” the items connoted that the appellant had pulled the items free from that grip; and that the action of pulling the items from his grasp amounted to the use of force on Mr Dewan. We agree with Miss Bald that the use of a word such as “snatch” or “grab” will not necessarily and in all circumstances connote the use of force of any person. We disagree with her, however, when she says it was a matter of impermissible speculation, and not a matter of legitimate inference, for the jury to be permitted to conclude that Mr Dewan would inevitably have been gripping his items of property sufficiently tightly that his grip had to be overcome by the use of force in order for the appellant to take them from him.
In those circumstances, the recorder was in our judgment correct to reject the submission of no case to answer and to permit the jury to determine whether this ingredient of the offence of robbery had been proved.
For those reasons, grateful as we are to Miss Bald for the skill with which she has presented this appeal, the appeal fails and is dismissed.