Trap 1: Assuming Hinks is universally accepted
Hinks remains controversial. Do not write as if it is unproblematic. Acknowledge the dissents (Lords Hutton and Hobhouse) and academic criticism (A. T. H. Smith, Buxton). Show awareness that the case raises deep questions about the boundary between criminal and civil law.
How to avoid: When applying Hinks, note that it is binding but contested. E.g., 'Following Hinks, D's acceptance of the gift can be appropriation, though this result has been criticised as extending theft beyond its proper sphere.'
Trap 2: Confusing Ghosh and Ivey
Ghosh is no longer good law. Do not apply the two-stage test. Use Ivey: (i) ascertain D's actual knowledge/belief as to facts; (ii) ask objectively whether D's conduct was dishonest by ordinary standards.
How to avoid: Cite Ivey v Genting Casinos [2017] UKSC 67 and note that it supersedes Ghosh. If D has a s.2(1) belief (e.g., belief in legal right, consent, or that owner cannot be found), that negates dishonesty; if not, apply Ivey.
Trap 3: Forgetting that robbery requires completed theft
Robbery under s.8 is not merely force plus intent to steal. All elements of theft must be proved. If D lacks dishonesty (e.g., belief in a right to the property, as in Robinson [1977] Crim LR 173), or lacks intention permanently to deprive, robbery fails.
How to avoid: Structure robbery answers in two stages: (i) Is there a theft? (go through all five elements of s.1); (ii) Is there force in order to steal, immediately before or at the time?
Trap 4: Overcomplicating s.6 TA 1968
Section 6 is opaque and should be invoked only where necessary. In most cases, D either intends outright permanent deprivation (so s.6 is irrelevant) or intends to return the property (so there is no theft, absent s.6 circumstances like Fernandes or Lloyd).
How to avoid: Ask: does D intend never to return the property? If yes, stop—s.1(1) is satisfied and s.6 need not be mentioned. If D intends to return it, ask whether the return would be 'equivalent to an outright taking' (e.g., tickets with no value, as in Lloyd) or D intended to treat it as his own to dispose of (e.g., ransom, pawning: Fernandes).
Trap 5: Ignoring s.5: 'Belonging to Another'
Candidates often assume 'belonging to another' means legal ownership. Section 5(1) is broader: it includes possession, control, and any proprietary or equitable interest. This is critical in cases involving bailment, trusts, and obligations to retain and deal (Attorney-General's Reference (No 1 of 1985) [1986] QB 491; s.5(3)).
How to avoid: Always ask: does someone other than D have possession, control, or a proprietary interest? If V is the legal owner but has given possession to D, the property still 'belongs to' V (and D, for that matter). Theft is possible.
Trap 6: Misapplying Hale: Appropriation as a 'Continuing Act'
Hale (1979) 68 Cr App R 415 holds that appropriation may be a continuing act for robbery purposes. But this does not mean appropriation continues indefinitely. The force must be part of the same transaction as the theft. If D steals, escapes, and hours later uses force to evade arrest, that is not robbery; the theft and force are separate incidents.
How to avoid: Focus on whether the force and theft are part of a single, ongoing episode. Hale itself involved force used during the burglary and theft; the appropriation had not ceased when they tied up the victim.
Trap 7: Failing to distinguish theft from fraud
Post-Gomez, the boundary between theft and fraud (Fraud Act 2006) is blurred. Obtaining property by deception can be both theft (if D appropriates property belonging to another dishonestly with intent permanently to deprive) and fraud by false representation (s.2 FA 2006) or fraud by abuse of position (s.4 FA 2006).
How to avoid: In problem questions involving deception, consider both offences. Note that fraud does not require the defendant to obtain property; it is complete upon the dishonest representation (s.2) or abuse (s.4). Theft requires appropriation of property.
Trap 8: Forgetting the Ivey proviso: s.2(1) beliefs
Even under Ivey, if D holds a s.2(1) belief (belief in legal right, consent, or that owner cannot be found), D is not dishonest, however unreasonable the belief (provided it is genuinely held). This is an important safeguard.
How to avoid: When assessing dishonesty, first ask: does D claim a s.2(1) belief? If so, does the evidence support that he genuinely held that belief? If yes, he is not dishonest. If no s.2(1) belief applies, proceed to Ivey.
Trap 9: Confusing 'force on any person' in robbery
Section 8 requires force 'on any person', not necessarily the owner or possessor of the property. If D pushes a security guard in order to steal from a shop, that is robbery, even though the guard is not the owner.
How to avoid: Identify who the force is used on. It need not be the victim of the theft; it can be any person (Dawson, Hale).
Trap 10: Lack of engagement with academic literature
FHS candidates are expected to show awareness of scholarly debate. Do not merely recite cases. Cite Smith, Ashworth, Ormerod, Wilson, Simester, Herring, and others. Show you understand competing interpretations and can evaluate them.
How to avoid: In essay questions, dedicate at least one paragraph to academic perspectives. In problem questions, use academic commentary to justify or critique your analysis.