Legal Implications and Remedies

Trespass is an unauthorised entry upon the land or premises of another. It is actionable in the courts irrespective of whether the claimant has suffered any damage. In Ellis v Loftus Iron Co, it was observed that the slightest crossing of another person’s land unlawfully is sufficient to result in a trespass. The claimant can recover damages for such trespass. The conduct of Sam constitutes trespass. Such intrusion into the local hotel by Sam is unjustifiable and it does not matter whether the hotel did not suffer any damage when he stayed there for 14 days. Even a slightest intrusion is trespass, and in his case, he stayed in the hotel for 14 days. In regard to remedy for trespass, actions are normally not brought about in the absence of damage; however, the hotel may claim damages to deter such kind of conduct in future.

A person commits the offence of theft if they dishonestly appropriate property belonging to another person with the intent to permanently deprive the other of the property. There must be actus reus and mens rea. Mens rea indicates dishonesty and the permanent deprivation of property. Actus reus indicates appropriation, of the property, which belongs to other person. These five elements must be proved.

Appropriation occurs if the person does anything to other’s property. The person should assume rights of the owner by keeping or dealing with it as the owner. For theft, such property must belong to the other person at the time of appropriation. This is supported by Turner.

In the current case, Brian and Sue had shown dishonesty and specific intention to steal toilet rolls from the hotel. In the available circumstances, their conduct of taking the toilet roll to the road is equivalent to an outright taking or disposal. They appropriated the toilet rolls, which belonged to the hotel, when they assume the rights of the hotel by keeping them. The five elements are present and Brian and Sue will be liable for theft.

Finders can never be keepers. They can only if they exceed the limitation period of six years under the Limitation Act 1980. The Theft Act provides a defence to finders. under section 2(1)(c). If she has the reasonable belief that she cannot find the true

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1. Christine Rossini, English As a Legal Language (Kluwer Law International) 30.
2. Ellis V. Loftus Iron Co. ((1874), L. R. 10 C. P. 10).
3. Joe Plomin, Hidden Cameras: Everything You Need to Know About Covert Recording, Undercover Cameras, and Secret Filiming (Jessica Kingsley Publishers 2016).
4. William VH. Rogers, Winfield and Jolowicz on Tort (Sweet and Maxwell 2006) 621.
5. The Theft Act 1968, s1(1) .
6. Michael Allen, Textbook on Criminal Law (Oxford University Press 2013) 443.
7. Lawrence v Metropolitan Police Commissioner [1972] AC 626.
8. R v Hinks [2000] UKHL.
9. Ibid, s 3(1).
10. Michael Allen, Textbook on Criminal Law (Oxford University Press 2013) 449.
11. R v Turner (No 2) [1971] 1 WLR 901.

owners by taking reasonable steps, she will not be considered dishonest for appropriating the property. This is supported by the case of Coffin. It is subject to the actual state of mind.

In this case, Leanne must take reasonable steps to find the owners. Otherwise, she will be liable for dishonestly appropriating the toilet rolls.

A constable has the power to stop and search persons in any place and any time for stolen or prohibited articles and may detain that person,provided that he has reasonable grounds for suspicion that he would find stolen or prohibited articles made or adapted for use in the course of or in connection with an offence. Applying Wednesbury test, the question is whether the decision to arrest is unreasonable and disproportionate.

A constable must take certain reasonable steps in case he contemplates a search of a person. He must show documentary evidence, if he is not in his uniform.He shall not conduct the search until he informs the person his name and the name of his police station, and the purpose and grounds of the search. A statement that the person is under arrest is sufficient if the person acquiesces. However, reasonable force can be used in case the person attempts to escape or becomes violent. It should be generally acceptable conduct.Failure to follow the arrest rules may amount to wrongful arrest.

Every form of imprisonment is “prima facie” unlawful.The burden of proof lies with the police.It requires showing that the arrest was “essential, required, needed or obligatory”,and at the scene. As provided under Section 110, Section 111, Section 113 and Section 117, this test requires an offence to be “arrestable” as determined

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12. Coffin (1846) 2 Cox CC 44 (Central Criminal Court).
13. Robin Hickey, Property and the Law of Finders (Hart Publishing 2010).
14. The Police and Criminal Evidence Act 1984, Section 1.
15. Ibid.
16. S. H. Bailey, Brian L. Jones and Alastair R. Mowbray, Cases, Materials and Commentary on Administrative Law (Sweet & Maxwell 2005).
17. The Police and Criminal Evidence Act 1984, Section 2.
18. Ibid.
19. Russen v Lucas (1824) 1 C & P 153.
20. GOV.UK, ‘Police powers of arrest: your rights’ accessed .

by the necessity test.The arrest to be both “prompt” and “effective”, rather than just one or the other.

The constable must have a reasonable belief that an arrestable offence has been committed as reflected in Section 24(5). The constable’s power of summary arrest is only exercisable to ascertain the name of the person and the address.

In the current case, Bob needs to establish that he exercised the power of stop and search as per the rules and had reasonable grounds to suspect Leanne in respect to the incident of break-in in the hotel. The ground of suspicion should be that he would find stolen or prohibited articles in connection with the offence. Bob may invoke Section 24 of PACE and show that the arrest was necessary, and that the offence of break-in is an “arrestable” offence.

On the other hand, applying Wednesbury test, it is enough for Leanne if the decision of Bob to arrest her is not reasonable. Bob breached the arrest rules as per Section 2 by not showing documentary evidence, not informing Leanne of his name and the police station he is attached, and not giving any grounds or purpose of the arrest. This amounts to wrongful arrest. Bob usedunreasonable force when Leanne did not try to escape or became violent. The statement that “she was under arrest itself” should have been enough to effect arrest. Bob’s conduct failed the necessity test and was not prompt and effective action. Leannewas just leaving her shift at the foodbank and arrest was not at the scene. Bob breached the arrest rule when he did not ask Leanne of her name and her address. Thus, this wrongful arrest is actionable.

A ‘legally valid consent’ may consist of the ‘factual consent’, where the complainant acknowledges her consent to allowing the defendant the course of conduct that infringes upon her bodily integrity; and the normative consent that reinforces the factual consent, where there is the element of knowledge, freedom and competence. The consent of complainant may be a defence, but it may be placed in front of the fact-finder for deliberation. Relevant law may not provide any guidance, and may not consider normative consent. A fully informed consent may

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21. Gary Slapper and David Kelly, The English Legal System (Routledge-Cavendish 2009) 434
22. B, N, O, Q, R, U, V (Former Soldiers) v The Chief Constable of the Police Service of Northern Ireland 2015 EWHC 3691 (Admin).
23. Gary Slapper and David Kelly, The English Legal System (Routledge-Cavendish 2009) 438.
24. The Police and Criminal Evidence Act 1984, Section 24(5).
25. Jonathan Witmer-Rich, ‘It’s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law’ (2011) 5 Criminal Law and Philosophy 377.
26. Ibid.
27. Alan Wertheimer, ‘What Is Consent? And Is It Important?’ (2000) 3 Buffalo Criminal Law Review 557

not be present on all occasion. Conceptualisation of consent may be deficient where the complainant may not have opportunity to make a fully informed decision. In McNally, the court used the theory of conditional consent. This theory used to be applied in cases where the defendant intentionally lied to the complainant that he would withdraw before ejaculation or wear a condom. The Code of Crown Prosecutors has placed the McNally case in the categories of lies. It was held that defendant’s deception had destroyed the complainant’s implicit condition. However, the concept of conditional consent may not be wide enough to criminalise actions of the defendant who may change a term based on which consent was given.

The case of R v B, considered the question of conditional consent. The defendant had sexual intercourse with the complainant without informing her that he was HIV positive. It was held that non-disclosure of this aspect did not vitiate consent and it was irrelevant to Section 74 and Section 76 of the 2003 Act. In Assange v Swedish Prosecution Authority, the court stated that deception as to the wearing of a condom would negate the element of free choice of the complainant. In R(F) v DPP, the court considered the issue of withdraw prior to ejaculation. The couple agreed to sexual intercourse on the agreement that the defendant would withdraw prior to ejaculation. This did not happen. The defendant deliberately ignored the agreement and refused to withdraw. The importance of the element of “choice” as stipulated in Section 74 of the 2003 Act was stressed upon. The act of the defendant deprived the complainant her choice that formed part of the agreement upon which her consent was based. Accordingly, the court held her consent was negated. The element of choice seems to occupy the core issue in respect of the conceptualisation of consent in sexual offences. In the McNally case, the court held that if the defendant expressly deceives regarding certain issues prior to sex, then the premise on which the complainant is consented may be false. However, there is no clarity of what these “certain issues” might be. This may lead to incapability to differentiate between issues that could vitiate consent and those that could not. Deception may include a variety of methods. This broad based approach may prove dangerous. It has the tendency to include deceptions that are too trivial to consider in respect to

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28. Helen Johnson and Roger Matthews, ‘Addressing Prostitution: The Nordic Model and Beyond’ in Roger Matthews (ed.), What is to Be Done About Crime and Punishment?: Towards a 'Public Criminology' (Palgrave Macmillan 2016).
29. David Hughes, ‘Did the Individual Consent to the Risk of Harm? A Comparative Jurisdictional Analysis of Consent in Cases of Sexual Transmission/Exposure to HIV’ 2018 82(1) The Journal of Criminal Law 76–105.
30. McNally v R [2013] EWCA Crim 1051, [2014] QB 593.
31. Vera Bergelson, ‘Rethinking Rape-By-Fraud’ in Chris Ashford, Alan Reed and Nicola Wake (eds.) Legal Perspectives on State Power: Consent and Control (Cambridge Scholars Publishing) 180.
32. R v B [2006] EWCA Crim 2945.
33. Ibid.
34. Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin).

the question of consent. Sexual violence prevention has shifted towards a message of ‘get consent.’

The common law on consent focuses on the state of mind of the complainant’s. If there is fear of violence, even if there was no threat, it would be treated as no consent. However, if the consent is based on mistake, the courts have to look at common law approach. This represents a lack of authority of the 2003 Act, especially Section 74. Common law provides for mistake as to the nature of the act and to the identity of the defendant that would negate consent. Section 76 lays down a presumption that covers these elements. However, this section does not always cover all mistakes and in such circumstances, the general meaning will be applicable. This leaves a window open to determine the extent of mistakes unrelated to the nature or purpose of the act to amount to absence of consent. In regards to deception, different deceptions may affect different victims in different ways. In R v Olugboja, it was observed that the question is not whether the consent is vitiated by the element of use of force or threat, but more of the victim’s state of mind. Similar approach is applied to mistakes, which may focus on the perception of the victim of their interests. The core issue is whether there is a way to determine the degree of consent, if it exists.

Further, to understand consent, it is also needed to understand victimology approaches. They occupy an important place in criminal law. Many reforms in rape laws derived it sources from understand victimology approaches. The 2003 Act is an example, which is a blend of social and academic processes that attempts to change perception of rape victims. So, to understand consent is subject to how young adults conceptualise consent and express willingness. There seems to be a disconnection between understanding of consent and how they understand communication about sex. Consent is just viewed as a formal minimum requirement for ‘ok’ sex. In case of non-fatal crime against person, there seems to be no determination of the moral essence in such crimes. The existing definition of crime does not seem to capture this in respect of the wrong in question in regard to non-fatal crimes. The existing legal framework focuses on ‘moderate’ constructivism based on defendant’s mens rea and degree of harm caused by his

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35. Melanie Ann Beres, ‘Rethinking the concept of consent for anti-sexual violence activism and education’ 2014 24(3) Feminism & Psychology 373-389.
36. Jonathan Herring, Criminal Law (Palgrave Macmillan 2011) 134.
37. Ibid, 135.
38. R v Olugboja [1982] QB 320
39. Jonathan Herring, Criminal Law (Palgrave Macmillan 2011).
40. Nicole Westmarland, ‘Rape Law Reform in England and Wales’, School for Policy Studies Working Paper Series, Number 7.
41. Melanie Ann Beres, ‘Rethinking the concept of consent for anti-sexual violence activism and education’ 2014 24(3) Feminism & Psychology 373-389.
42. Jeremy Horder, ‘Rethinking non-fatal offences against the person’ (1994) 14(3) Oxford Journal of Legal Studies 335-351.

defendant’s actions. However, the existing legal framework has arguably laid too much emphasis on leading judgments on the complainant having the ‘opportunity’ to make an informed choice, for example the case of R v Konzani and R v Dica. There is no clarity as to how a complainant would formulate an informed choice, for instance in the case of R v Dica, a basic disclosure was treated to be the appropriate method of informing a complainant. The legal concept and doctrines around consent seems to have failed to recognise the inability of a complainant to make a fully informed decision.

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43. Adam Jackson and Tony Storey, ‘Reforming Offences Against the Person: In Defence of ‘Moderate’ Constructivism’ (2015) 79(6) Journal of Criminal Law 437-447.
44. David Hughes, ‘Did the Individual Consent to the Risk of Harm? A Comparative Jurisdictional Analysis of Consent in Cases of Sexual Transmission/Exposure to HIV’ (20158) 82(1) The Journal of Criminal Law 76-105.
45. R v Konzani [2005] EWCA Crim 706 [2005] 2 Cr. App. R. 14.
46. R v Dica [2004] EWCA Crim 1103.
47. Ibid.

Take a deeper dive into Participant Observation in Criminology with our additional resources.

Legislation

The Police and Criminal Evidence Act 1984.

The Theft Act 1968

Cases

Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin).

B, N, O, Q, R, U, V (Former Soldiers) v The Chief Constable of the Police Service of Northern Ireland 2015 EWHC 3691 (Admin).

Coffin (1846) 2 Cox CC 44 (Central Criminal Court).

Collins v Wilcock [1984] 1 WLR 1172.

Ellis V. Loftus Iron Co. ((1874), L. R. 10 C. P. 10).

Hicks v Faulkner [1881] 8 QBD 167.

Lawrence v Metropolitan Police Commissioner [1972] AC 626.

Liversidge v Anderson [1941] UKHL 1.

McNally v R [2013] EWCA Crim 1051, [2014] QB 593.

R v B [2006] EWCA Crim 2945.

R v Dica [2004] EWCA Crim 1103.

R(F) v DPP [2013] EWHC 945 (Admin).

R v Hinks [2000] UKHL.

R v Konzani [2005] EWCA Crim 706 [2005] 2 Cr. App. R. 14

R v Olugboja [1982] QB 320

R v Turner (No 2) [1971] 1 WLR 901.

Russen v Lucas (1824) 1 C & P 153.

Bibliography

Books

Allen M, Textbook on Criminal Law (Oxford University Press 2013)

Bailey SH, Brian L. Jones and Alastair R. Mowbray, Cases, Materials and Commentary on Administrative Law (Sweet & Maxwell 2005).

Bergelson V, ‘Rethinking Rape-By-Fraud’ in Chris Ashford, Alan Reed and Nicola Wake (eds.) Legal Perspectives on State Power: Consent and Control (Cambridge Scholars Publishing) 180.

Herring J, Criminal Law (Palgrave Macmillan 2011)

Hickey R, Property and the Law of Finders (Hart Publishing 2010).

Johnson H and Roger Matthews, ‘Addressing Prostitution: The Nordic Model and Beyond’ in Roger Matthews (ed.), What is to Be Done About Crime and Punishment?: Towards a 'Public Criminology' (Palgrave Macmillan 2016).

Plomin J, Hidden Cameras: Everything You Need to Know About Covert Recording, Undercover Cameras, and Secret Filiming (Jessica Kingsley Publishers 2016).

Rossini C, English As a Legal Language (Kluwer Law International)

Rogers WVH, Winfield and Jolowicz on Tort (Sweet and Maxwell 2006)

Rogers C and Rhobert Lewis, Introduction to Police Work (Willian Publishing 2007)

Slapper G and David Kelly, The English Legal System (Routledge-Cavendish 2009)

Journals

Beres MA, ‘Rethinking the concept of consent for anti-sexual violence activism and education’ 2014 24(3) Feminism & Psychology 373-389.

Horder J, ‘Rethinking non-fatal offences against the person’ (1994) 14(3) Oxford Journal of Legal Studies 335-351.

Hughes D, ‘Did the Individual Consent to the Risk of Harm? A Comparative Jurisdictional Analysis of Consent in Cases of Sexual Transmission/Exposure to HIV’ 2018 82(1) The Journal of Criminal Law 76–105.

Jackson A and Tony Storey, ‘Reforming Offences Against the Person: In Defence of ‘Moderate’ Constructivism’ (2015) 79(6) Journal of Criminal Law 437-447.

Madhloom O, ‘Deception, mistake and non-disclosure: challenging the current approach to protecting sexual autonomy’ (2019) 70(2) Northern Ireland Legal Quarterly 203-219.

Wertheimer A, ‘What Is Consent? And Is It Important?’ (2000) 3 Buffalo Criminal Law Review 557

Westmarland N, ‘Rape Law Reform in England and Wales’, School for Policy Studies Working Paper Series, Number 7.

Witmer-Rich J, ‘It’s Good to be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law’ (2011) 5 Criminal Law and Philosophy 377.