Theft vs Robbery in a retail setting - the meaning of appropriation

A crime’s classification is integral in triggering the appropriate policing response and resources to incidents according to the offence’s severity from the outset. For example, operationally, offences of theft and accompanying violence (depending on the severity) often do not require an immediate response from police or, require attendance at the scene at all. Furthermore, such offences will not fall within the umbrella requiring allocation to CID because they are not considered ‘priority crime’. Additionally, some forces operate dedicated units whereby ‘low level’ offences such as theft and violence can be dealt with by telephone appointment if the suspect is no longer present. Such reports may not be allocated for investigation at all and may be filed at source - pending for example CCTV being received and a positive identification of a suspect.

Conversely, those incidents amounting to robbery will often be deployed to and/or allocated for further enquiries by their very nature of being a ‘priority crime’. In that sense, being able to distinguish these offences by applying the law correctly is imperative. It follows; by doing so, confidence in policing may improve and those who are victims may be encouraged to report more matters to the police. Consequently, this could help reduce such violent crimes and improve conviction rates. However, a significant barrier in this area is a lack of understanding around the legal requirement of ‘appropriation’. As such, the law in this area will be considered in turn.
 

Theft

Section 1 of the Theft Act 1968 (the Act) states:

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly”.

To secure a conviction, all the points to prove need to be evidenced. However, one significant area of contention, which leads to a lack of understanding exists around ‘appropriation’ and when it is said to be complete.

Appropriation

For the purposes of theft, appropriation is defined by section 3(1) of the Act as:

“Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner”.

However, the court’s interpretation of ‘appropriation’ has led to difficulties - even in seemingly ‘straightforward’ circumstances.

In R v McPherson (1973), in the context of theft from a shop, the court confirmed there is an 'appropriation' if there is an intent to steal when property is taken in circumstances which are contrary to the interests of the owner. In this case, there had been an appropriation, because there had been an intention to steal when bottles were taken and put in M's bag (note, Mcpherson’s facts were absent any element of violence).

It is this approach which often leads to confusion as, where all elements of the theft are present, a person can commit a full offence of theft from shop without passing the points of payment or leaving the store. This has been the ‘traditional’ threshold to judge theft by – often referred to in the construction of a suspect’s Modus Operandi or referenced in statements. This also poses a question of when an attempt theft from shop can be said to have occurred. A practical illustration of attempted theft can be found in R v Day (Gerry) [2018] EWCA Crim 2637, where the defendant attempted to steal bottles of fragrance from a shop but dropped them when he realised he was being watched. Note however, the offence must be more than merely preparatory to amount to such an offence.

Theft is considered complete as soon as there is an assumption of the owner’s property rights (appropriation), which is dishonest and accompanied by an intention to permanently deprive the owner of property. It is generally considered to occur at a specific point in time as identified in the case of Mcpherson. It follows: In policing, in the context of retail theft, common practice is to consider any subsequent violence from this point, to be distinct from the initial theft and not amounting to robbery on the pretence that appropriation is already ‘complete’. However, it is argued that this ridged approach to appropriation is misguided as it does not consider appropriation as a ‘continuing act’ in the context of robbery. It follows that the point when the theft is said to be complete can be more difficult to establish, as will be highlighted in the case law below.
 

Robbery

Section 8(1) of the Theft Act states:

"A person is guilty of robbery if the person steals, and immediately before or at the time of doing so, and in order to do so, they use force on any person or puts or seeks to put any person in fear of being then and there subjected to force."

Robbery requires that the force or, threat of force must be immediately before or, at the time of the stealing and for the purpose of stealing. Where it is determined that force is used after theft is complete, there can be no robbery, although such force or threats of force may amount to a separate criminal offence (see Drafting the Indictment guidance for addition details in relation to alternative charges). CPS Guidance states:

“Once the theft is complete any force used subsequently cannot amount to robbery as later force will not fall within the definition. However, the courts have held that as appropriation is a continuing act it would be artificial to attempt to draw a line determining the precise moment it ends. Whether the theft is still in the course of being committed is a question of fact which must be left to the jury to determine. “To say that the conduct is over and done with as soon as he lays hands upon the property, or when he first manifests an intention to deal with it as his, is contrary to common-sense and to the natural meaning of words." (R v Hale (1979) 68 Cr. App. R. 415.) See also R v Lockley [1995] Crim LR 656”.
 

Case law – appropriation as a continuing act

• In R v Hale (1979) H appealed his conviction for robbery, arguing that the jury had been misdirected in that it might believe that the use of force to make an escape would amount to robbery. The court determined an appropriation does not suddenly cease and is a continuing process at all material times. It was for the jury to say whether any force used or threatened was “at the time of” the theft, and in order to effect it. It follows, force used or threatened to facilitate a getaway could turn theft into robbery.

• R v Pitham and Hehl (1976) had previously confirmed any assumption of the rights of the owner, even before moving the goods, can be appropriation. This point was considered in R v Gregory (1981) where it was held appropriation was a continuous act and it is a matter for the jury to decide when an appropriation has finished. Taking this further, there may also be more than one appropriation during the commission of an offence involving more than one person. As it is a continuing process, all who have taken part in that process can safely be convicted of theft.

• In R v Atakpu (1994), the court found it difficult to answer the question as to whether or not theft is a continuous offence. They noted, on a strict reading of R v Gomez (1993), any dishonest assumption of the rights of the owner made with the necessary intention constitutes theft and that leaves little room for a continuous course of action. The court stated:

“We would not wish that to be the law. Such restriction and rigidity may lead to technical anomalies and injustice. We would prefer to leave it for the common sense of the jury to decide that the appropriation can continue for so long as the thief can sensibly be regarded as in the act of stealing or, in more understandable words, so long as he is "on the job"”.

The Court of Appeal recognised that appropriation might sometimes take the form of a continuous or ongoing course of action but, as the matter was not strictly necessary for their decision in the given case, they left it open for further argument.

• In R v Lockley (1995) L, with two others, stole cans of beer from an off-licence. Aware of what was happening, the shopkeeper approached L with a view to preventing him from leaving the off-licence, but L used violence against the shopkeeper in order to escape. L was convicted of robbery and appealed against his conviction on the basis that the theft of the cans was completed before violence was used against the shopkeeper and therefore, it was incorrect to leave the robbery charge to the jury. Dismissing the appeal, the court held that the appropriation can be a continuous course of action and whether the theft was completed before the use of force is a matter that should be left to the jury.

Tension becomes apparent where Mcpherson demonstrates a defined moment when appropriation is said to be complete. Related guidance states that once theft is complete any force cannot amount to robbery yet, cases such as Hale, Gregory and Lockley state appropriation can be a continuing act - being of particular relevance in cases which involve an alleged robbery where force is used only after the initial act of appropriation. It follows, when determining the appropriate crime classification, considering Mcpherson in isolation is problematic. Rather, the individual facts of a case should be considered in the broader context of the case law surrounding appropriation as a continuing act. HOCR takes these issues even further.
 

HOCR

The Home Office Counting Rules aim for consistency in crime recording. Consistency in crime recording is needed to produce accurate statistics. Therefore, a distinction must be drawn between crime recording rules and the decision of the courts, which often turn on a case’s individual facts and are affected by charging standards. The HOCR offer specific guidance and examples relating to appropriation in the context of theft from a shop:

“If any force is used during a theft, and in order to commit the theft, then one crime of robbery should be counted. The individual circumstances of each incident should be considered to decide when an appropriation has taken place.
Where an offender enters a retail premises, steals and either uses or threatens violence against a shop worker or security guard or any other person at the time or uses or threatens violence in order to escape the premises with the property then the crime to be recorded should be robbery.
Theft will be considered to be complete once the offender has managed to steal and left the premises without the use of or threat of violence against staff or any other person. There may be occasions when there is someone in immediate pursuit of the offender after they have left the premises – it is proposed that in these circumstances the theft is still incomplete and any violence used may result in a crime of robbery.

R v Hale 1978 and R v Lockley 1995 clarified the concept of "appropriation" and the continuity of an act of theft.

Example 1: A shoplifter pushes a shop assistant (causing minor bruising) while placing an item into their jacket from the display in a shop and then runs from the premises without paying.

One crime of robbery (class 34A).

Example 2: A shoplifter places articles into their bag in an aisle and notices the store detective watching them, as the store detective approaches them the shoplifter strikes them and leaves the store without paying.

One crime of robbery (class 34A).

Example 3: A shoplifter has taken articles from a display in the store and hidden them in a bag. The store detective is informed and waits at the exit. The shoplifter goes beyond the tills and when the store detective approaches, punches him in the face causing a black eye and runs out of the shop.

One crime of robbery (class 34A)”.

As can be seen from the above examples, whilst the HOCR draw from legislation and case law, they also depart from the decisions of the courts. For example, whilst Mcpherson confirms appropriation can be said to be complete once items are placed into a bag and before the points of payment are passed, HOCR states that theft will be considered to be complete “once the offender has managed to steal and left the premises without the use of or threat of violence against staff or any other person”. However, whilst HOCR do not refer to Mcpherson in its rules regarding shoplifting, it remains good law.

Additionally, HOCR goes further to state that even after a suspect leaves the premises without the use or threat of violence against staff, where violence occurs following an “immediate pursuit” appropriation can re-engage and become a continuing act which, could constitute robbery. In this case, as stated in HOCR, the “individual circumstances of each incident should be considered to decide when an appropriation has taken place” – the issue hinging on what constitutes “immediate pursuit” for the purpose of crime recording.

Therefore, in our opinion, the most helpful way to view HOCR are that they are a distinct entity prescribed with a specific purpose of creating consistency – regardless of whether they draw on case law in some respects and depart from it in others. Despite this, a further area of contention is the application of the rules to similar scenarios outside of a retail setting.

‘Immediate pursuit’ – outside the retail setting (scenario)

Consider that: A steals B’s phone from a table, A places the phone in his pocket and runs off but B chases A, A punches B and successfully escapes.

For the same reason described previously, in policing, common practice is to consider any subsequent violence from the point of appropriation to be distinct from the initial theft and not amounting to robbery on the pretence that appropriation is already ‘complete’.  However, again a distinction must be drawn.

Legislation and case law

As described above, section 8(1) of the Act is clear that at the time of stealing “immediately before or at the time of doing so, and in order to do so, they use force on any person or puts or seeks to put any person in fear of being then and there subjected to force”. Case law such as Hale, Gregory and Lockley demonstrate that theft can be a continuing act and is a matter for a jury to determine. It follows in the example provided, the circumstances could amount to theft with a subsequent assault or, indeed robbery. This would likely be determined by the CPS upon consideration of charges.
 

HOCR

Whilst the HOCR offer specific guidance in relation to shoplifting involving the use or threats of violence during intervention or pursuit of an offender (the same guidance also repeated in the robbery of a business property), the same is not true for examples outside of the retail setting or, commercial premises. In the scenario above, in the absence of specific guidance from the HOCR, where a subsequent pursuit ensues to reclaim property, any subsequent use or threats of violence should be considered in line with the usual HOCR rules and depending on the circumstances may well be dealt with as an instance of theft and subsequent assault.
 

Alternate offences

Of note, the offence originally identified and what an individual is subsequently disposed of for, do not always correspond once all the facts are obtained. The HOCR accommodates instances where a decision is taken to positively dispose of an individual for an offence which is different to that recorded. For example, an individual is arrested for robbery of a shop, but the decision is made to charge with assault and theft. For further information on this process, see the HOCR with regards the ‘alternate offence rule’.
 

The future

The British Retail Consortium’s Annual Crime Survey notes that it has historically called for more Government and police action including:

• More prosecutions of crimes of violence and abuse against shopworkers, ensuring offences are treated as aggravated.
• Better recording of retail crimes of violence in the statistics.

In response to retail industry data reporting an increase in the frequency and severity of violence and abuse experienced by retail workers, the Crime and Policing Bill will look to create a new specific offence of assaulting a shopworker. Whilst it is unclear if this will alter the stances taken above, there should be an awareness of the proposal as it may be used as an alternate offence accompanying theft in those cases which are deemed to amount to robbery. The new legislative proposals look promising in targeting those who engage in violence directed at retail staff.
 

A final word

The rise in retail violence is alarming. Identifying the appropriate offences from the outset is integral in triggering the appropriate policing response and may go some way to address the issues raised by the British Retail Consortium. ‘Appropriation’ is complex, and a lack of understanding can be a significant barrier to this. Case law demonstrates even the courts have tussled with this principle. Furthermore, it is recognised that the use of (and following) case law in some areas of HOCR (as with Hale and Lockley) and an absence of (and departing from) case law like Mcpherson when addressing appropriation can frustrate understanding. However, to understand this area, in our opinion, it is helpful to consider HOCR a distinct entity (albeit clearly drawing from case law in some areas) and not to conflate the HOCR with all decisions of the courts. Consulting with your own Force’s Crime Registrar who are the experts in crime recording and CPS where appropriate will go some way in to ensuring legislation and related rules are applied appropriately.
 
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