Protest and Aggravated Trespass: Refining the Scope of ‘Lawful Activities' and ‘Immediately Practicable’
| Published date | 01 August 2012 |
| DOI | 10.1350/1740-5580-76.4.286 |
| Date | 01 August 2012 |
| Subject Matter | Divisional Court |
the offence into robbery. ‘At the time of’ committing the theft must be
viewed in a common-sense way; the test is whether X can sensibly be
said to be stealing the goods when the force is used on Y.
The above proposition is illustrated by the case of Hale above, on the
continuing nature of appropriation. The defendants had entered V’s
house wearing stocking masks. One of them put his hand over V’s
mouth to stop her screaming while the other went upstairs, returned
carrying a jewellery box, and tied V up before leaving. Appropriation
was determined to be a continuing act. The jury were entitled to find D
guilty of robbery relying on the force used by him when he put his hand
over V’s mouth to restrain her from calling for help. Eveleigh LJ stated
(at 418):
It is conduct which usurps the rights of an owner. 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. A thief who steals a motor car
first opens the door. Is it to be said that the act of starting up the motor is no
more a part of the theft? In the present case there can be little doubt that if
the appellant had been interrupted after the seizure of the jewellery box
the jury would have been entitled to find that the appellant and his
accomplice were assuming the rights of an owner at the time when the
jewellery box was seized. However, the act of appropriation does not
suddenly cease. It is a continuous act and it is a matter for the jury to decide
whether or not the appropriation has finished.
The evaluation provided by Mitting J in the present case is significant
in terms of highlighting the external elements of the offence of robbery.
It reveals that the determination of use of ‘force’ to establish robbery is
a question of fact and degree, with incremental variations on a solipsistic
basis. By way of illustration, consider a slight variation on the factual
pattern in the present case. If G’s cigarette had been lit, and P had
‘directed’ this lighted cigarette against G’s hand to force the victim to
drop her property, then presumptively this conduct satisfies the in-
gredients of s. 8 of the Theft Act 1968. It is on these marginalisations that
the actus reus of robbery is constituted.
Alan Reed
Protest and Aggravated Trespass: Refining the Scope of
‘Lawful Activities’ and ‘Immediately Practicable’
Nero v Director of Public Prosecutions [2012] EWHC 1238 (Admin)
Keywords Aggravated trespass; Lawful activity; Public order; Protest
The Ahava Shop in Covent Garden sold health and beauty treatments
extracted, processed and imported from the Dead Sea. On 22 November
2010 the appellants (N and O) entered the shop, placed a heavy concrete
The Journal of Criminal Law
286
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