Joyriding deaths in two months.

Oct 30;Adele Thompson, 12, Liverpool

Oct 22;Youth, 18, Oldham

Oct 14;Passenger, 19, Kettering

Oct 10;Man, 25, Crawcrock, Tyne and Wear

Sept29,Man, Carrington, Somerset

;Girl,14, N Ditchburn, Co Durham

Sept 10,Youth, 17, Man 21, Wallsend

Sept 1,Youth and girlfriend, both 17, Soham, Camb.

Thus ran the report in the Times 1 November 1991. What joy is there in this?

Since 12 October 1988 s.12 Theft Act 1968 as amended by s.37 of the Criminal Justice Act 1988 has read:-

S.12(1)A person shall be guilty of an offence if, without having the consent of the owner or other lawful authority, he takes any conveyance for his own or another's use or, knowing that any conveyance has been taken without such authority, drives it or allows himself to be carried in or on it.

(2)A person guilty of an offence under subsection (1) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale, to imprisonment for a term not exceeding six months, or to both.

Prior to the amendments in s.37 Criminal Justice Act 1988 a person could have been convicted on indictment to a term of imprisonment for a term not exceeding three years, and, moreover, the offence and attempts to commit were deemed to be arrestable offences. The power of arrest is now to be found in The Police and Criminal Evidence Act s.24(2)(d). Since the 1988 amendments there can be no attempt to commit the offence: Criminal Attempts apply only to indictable offences. Vehicle Interference, s.9 1981 Act could be considered.

Subsection (4) as amended provides that on a charge of theft of a motor vehicle if it is proved that the accused committed a s.12 offence the jury may convict of it. If the defendant is found (or pleads guilty) he is sentenced as if he had been found or pleaded guilty in the Magistrates' court. This provides an opportunity for plea bargaining.

The Aggravated Vehicle-Taking Act 1992, received the Royal Assent in March and the whole of the Act came into force on April 1, as a result of the aggravated Vehicle-Taking Act 1992, Commencement order 1992 (S.I. 1992 No.764). The Act adds a new s.12A to deal with offenders, who, after taking the vehicle drive dangerously and cause injury or damage. The offence will be triable either way unless the only aggravated event is damage below a specified sum. The maximum penalty on indictment is increased to 2 years; still a year less that the original Theft Act 1968.

The intention is to increase the punishment to five years if death is caused; since the punishment for causing death by dangerous driving is five years, this adds nothing. The maximum punishment for Criminal damage is 10 years' imprisonment. It may be possible to attempt a s.12A offence since it becomes indictable. I say may because it will be necessary for a s.12 offence to be committed as well, and, since s.12 is still summary only, this could be a question of what interpretation courts place upon it.

S.28 Road Traffic Act 1930 made it an offence to "Take and drive away a motor vehicle without the consent of the owner". S.28 did not specify any particular venue for the offence.

The offence was repeated in s.217(2) of the Road Traffic Act 1960, and subsequently with amendments became s.175 Road Traffic Act 1972 and s.178 Road Traffic Act 1988. The earlier legislation now repealed used the expression "Taking and driving away" and certain cases on the meaning of this may still be helpful. The offence of "Taking and driving away" still applies to Scotland.

Although the words "and drives away" were included in the draft bill on theft, clause 10, they were removed so as to cover, for example, the case of a boat which is towed away. with the new offence there was no longer any need to prove the "taking and driving away" element, just an unauthorised "taking for one's own or another's use". Taking is not defined in the Act.

The common law was repealed by The Criminal Attempts Act 1981 which came into force on 27 August 1981. Depending upon the outcome placed upon The Aggravated Vehicle-Taking Act cases on attempt may be relevant.

In R v Cook [1964] Crim L R 56 C was convicted of attempted T.D.A. A car owner found C and his co-defendant H in it. One or both was fiddling with the ignition. C said to a police officer, "our luck is out. We should have had the car away in another minute". The trial judge ruled in effect that the defendant's conduct amounted to an attempt.

Held, it is for the jury to say whether they accept it as amounting to an attempt. In the present case there was clearly an attempted TDA. The jury, if properly directed, could only have come to that conclusion and the appeal would be dismissed.

In Jones v Brookes and Another [1968] Crim L R 498 the defendants were charged with attempting TWOC, One had kept watch whilst the other tried a key in the door of the car. The justices found that one of them was trying to open a door with the intention of driving the car away. The defence said that before conviction it must be proved that the conduct was such that it could not reasonably be regarded as having any other purpose. The Justices acceded to the submission and dismissed the information.

Held, allowing the prosecutor's appeal, that the attempt to open the door was equivocal and might have been, eg, for the purpose of going to sleep in the car. However, the intention of the accused expressed at the time of the alleged offence and later was not to be disregarded as part of the evidence of the actus reus, for it was relevant when the act was equivocal. Accordingly the justices were directed to convict. Davey v Lee [1967] Crim L R 357 approved.

In Webley v Buxton [1977] Crim L R 160the defendant, was charged with attempted TWOC of a motor cycle. He was astride the machine using his feet to push it towards a motorway. The magistrates convicted him as charged, ie attempting to commit the offence, even though they were satisfied he had committed the full offence. It was held by the Divisional Court that the justices were entitled to do so.

R v Hawkey [1964] Crim L R 465. H was indicted for attempted larceny (theft) and attempted TDA. He was seen loitering near motor cars. He ran away, dropping a screw driver as he did so. The quarter light of one of the cars had been forced. He denied it. He was convicted of attempted larceny.

Held, quashing the conviction and substituting a conviction for attempted TDA, the evidence was consistent with either offence and there was nothing to show that H was guilty of the more serious one.

In R v Macpherson [1973] RTR 157, (CA) M was charged with TWOC, He said he had been too drunk to form the necessary intent. The judge had directed that self-induced drunkenness was no defence. He was convicted and appealed.

Appeal dismissed, the section did not require proof of any particular intent, and it was not a defence for M to say that because of self-induced drunkenness he did not appreciate what he was doing.

Shimmell v Fisher [1951] 2 ALL ER 672. Where one man held the steering wheel and two others pushed, without the engine being started, all guilty of TDA. Since 1968 these difficulties disappear, a mere "taking" suffices and the technical question of whether one of them was "driving" is immaterial.

R v Roberts [1964] Crim L R 472. R was convicted of TDA. He released the brake of a lorry which was parked on a hill and put it in motion so that it ran down the hill.

Held, the direction was wrong and the conviction should be quashed. The offence (TDA) involved two elements and although R's conduct might amount to taking, it could not amount to driving. A man cannot be said to be driving unless he is in the driving seat or in control of the steering wheel and also has something to do with the propulsion of the vehicle. Shimmell v Fisher (1951) distinguished.

R v Bow [1977] Crim L R 176 B, his brother and father were in his brother's car when stopped by gamekeepers. One gamekeeper blocked the road with his land rover. The gamekeeper refused to move, a scuffle ensued and during it the B got into the land rover, released the handbrake causing it to coast downhill some 200 yards, thereby to enable his brother's car to be driven off.

Held, on appeal, that the taking of a vehicle by a person "for his own or another's use", meant that the vehicle must be used as a "conveyance", and B had been rightly convicted.

Floyd v Bush [1953] 1 ALL ER 265. Pedalling an auto-assisted cycle without starting the engine was "driving away".

In R v Bogacki and others [1973] 2 ALL E R 864 the three accused, who were drunk, went to a 'bus garage and boarded a single-decker. B sat in the driving seat and turned the engine over. After a few minutes they left the garage. Shortly afterwards they were arrested. All three were convicted of an attempt, the jury having been directed that the full offence was complete when they assumed possession of the 'bus and that it was unnecessary to show that the bus had moved. Held, allowing the appeal, "take" was an ordinary word, there had to be some movement, however slight. The court considered there was abundant evidence to justify a conviction for attempt, (act preparatory), however the direction was wrong and the conviction must be quashed.

In Blayney v Knight (1975) Cr App R 269 a taxi was left with the engine running; two men got into it and sat in the rear seat. The accused left the club and went to speak to them. He sat on the driver's seat The taxi driver attempted to get the accused out, but a struggle ensued, in the course of which the accused accidentally put his foot on the accelerator and the vehicle careered off and ran over the taxi driver's legs. He was charged, with TWOC.

In dismissing the prosecutor's appeal the Queens's Bench Divisional Court said, if someone sitting in the driver's seat accidentally pressed the accelerator, it clearly could not be said that he was "driving".

In R v Stokes [1982] Crim L R 695 S and two friends, as a joke, moved an old girl friend's car round the corner so that she would think it had been stolen. S was charged, with TWOC. S was convicted.

Held, allowing the appeal and quashing the conviction, that on the authority of Bow "use" of a vehicle necessarily involved use as a conveyance. The mischief the section was aimed at was "stealing a ride".

In Neal v Gribble and others [1978] Crim L R 500the respondents found horses grazing. They tied lengths of rope to three of them, as bridles, and rode them away. They were charged with TWOC.. The justices dismissed the informations, being of the opinion that a horse was not a "conveyance", and attaching a rope to a horse as a bridle did not constitute "adapting" it for the carriage of a person.

Held, dismissing the appeal, that it was difficult to see how "conveyance" in its ordinary meaning could include horses. Attaching a halter or bridle to a horse did not "adapt" it: it simple made it easier to ride

In R v Pearce [1973] Crim L R 321 P was convicted of TWOC. He took an inflatable rubber dinghy, putting it on a trailer and driving it away. He appealed, he said the taking must be the removal of the conveyance by propelling it in some way or removing it in some way in its own element. Held, dismissing the appeal, the section covered what P did. The decision in Bow casts doubt upon this case since the taking did not involve the use of the boat as a "conveyance". Would it be an offence if it were not inflated?

In Mowe v Perraton [1952] 1 All ER 423, P was an employee who took an unauthorised deviation from his route in his lorry in order to collect an item for a relative. He did not have authority to use the vehicle for a private purpose of that nature. Held, "What he did was an unauthorised thing but that does not make the taking and driving away a criminal offence". P's acquittal was upheld

In R v Wibberley [1965] 3 All E R 718 An employee was required to return his lorry at the termination of a days work. In addition his employer agreed in evidence that he had no real objection to it being left overnight parked outside W's home. W parked it outside his home after work. He used it for his own purposes. W's appeal was dismissed. Mowe v Perraton was distinguished on the grounds that Perraton's conduct was during working hours whilst Wibberley extended his use after hours.

In R v Phipps and McGill [1970] RTR 209 (CA), M was loaned a motor car for the express purpose of taking his wife to the railway station on condition that he return it immediately thereafter. Because his wife missed her train to Hastings he used it to take her there the next day. The car was not returned for three days.

The trial judge's direction to the jury was that, from the time M decided not to return the car as required and drove off on his own business, not having the owner's permission, he took it and drove it away. That was held to be sufficient to constitute the offence and the Court of Appeal said M had been rightly convicted. Wibberley applied.

In R v Peart [1970] 2 All E R 823 (CA) P borrowed a car by stating that he wanted to go to Alnwick, (a lie - he wanted to go to Burnley). He parted with £2 and acquired the custody of the car on condition that it was returned by 7.30 pm that day. He failed to return it on time. Held, allowing the appeal, that s.12 did not extend to cases where consent was obtained by fraudulent misrepresentation, the owner's consent was not vitiated by his false statement

Phipps and Mcgill was followed in McKnight and Davies [1974] RTR 4 where McK was an employee who was not permitted to use the firm's lorry for his own purposes and was required to return it to the depot on completion of a days work. On one occasion he bent the cab roof and being worried went for a drink to a public house. He subsequently used the vehicle for his own purposes, parking it outside his own house overnight prior to taking it to the depot early next morning. On the facts it was "for his own use" but had he "taken" the vehicle?

Widgery C.J; stated, he "took the vehicle when he left the public house. At that point he assumed control for his own purpose in a manner inconsistent with his duty to his employer." The appeal against conviction was dismissed, Lord Widgery stating, obiter, that the Court of Appeal in Phipps and McGill had clearly rejected the argument that a lawful acquisition of possession or control meant that an unauthorised use could never amount to a "taking".

Fraud as to the identity of the hirer.

In Whittaker v Campbell [1983] 3 ALL ER 582 the two defendants, neither of whom held a driving licence, hired a van. They produced a driving licence which they had found in the street, and one of them purported to be the person named on it. They pleaded not guilty to TWOC. The hire firm would not have consented to the hiring had he they known the facts. The Crown Court dismissed their appeals.

Held, allowing the appeal, that fraud did not vitiated consent; where a person had given de facto consent to another to drive, that consent was not vitiated by reason of its having been obtained by means of a fraudulent deception the defendants were not guilty.

R v Stally [1960] Crim L R 199. W drove a motor van away from where it had been parked by the owner, and later in the night W and S used the van to make a number of journeys. S and W were each charged, with TDA. W pleaded guilty. S pleaded not guilty.

Held, that if S had taken no part in the taking of the van, but had merely got into it subsequently, although he knew that W had no permission to drive it, he would not have been guilty of TDA; that the summing-up amounted to a misdirection in law; and that the conviction must be quashed.

There was no evidence that the passenger was a party or knew of the "taking".

Ross v Rivenall [1959] Crim L R 589. The defendant was charged with TDA. The vehicle was left by the owner locked and without the ignition key. There was sufficient petrol to travel six miles. The vehicle was found six miles away stranded with four men in it, one of whom, the the defendant was lolling in the back with his feet outstretched. No ignition key was found but the lights were on and clearly someone had been tampering with the car.

The defendant said, "A bloke stopped me and asked me if I wanted a lift, so I got in." The magistrates convicted him on both charges, but on appeal the Recorder took the point that there was no prima facie case made out that the defendant was acting in concert with the driver or other people in the car.

The prosecution appealed. Held, allowing the appeal, a prima facie case of association between the defendant and the driver of the car was made out and therefore the appeal would be allowed and the case remitted to the Recorder.

In D (an Infant) v Parsons [1960] Crim L R 711. A motor cycle was taken and driven away without the consent of the owner. Later that same day F was seen driving the motor cycle. He was carrying D a pillion passenger. F and D were both aged fifteen. When questioned by the police, D said he knew nothing about the motor cycle being stolen. Both were charged with TDA. F pleaded guilty. D pleaded not guilty. D gave evidence that F had told him that he (F) was the owner of the motor cycle, and that F had offered him a ride. D was convicted; and his appeal against conviction was dismissed.

Held, allowing the appeal, (1) That although a jury might infer, from the position in which D was found, that he was a party to the original taking, the mere fact that he was found in such a position did not of itself prove that he was such a party; and, in the present case, there was evidence neither of a joint enterprise nor that D had been a party to the original taking; that D had been wrongly convicted of the offence of TDA.

In R v Miller [1976] Crim L R 147 the accused boarded a launch knowing it had been taken without authority and anticipating a journey on it, but it was not moved whilst he was on it. Although he was convicted of being carried on the launch knowing it had been taken without authority, he contended that "carried" implied some movement. The Court of Appeal allowed his appeal, agreeing with his submission and confirming the decision in Bogacki that "carrying" implied movement.

In R v Diggin (1981) 72 Cr.App.R. 204 D was charged with TWOC. (carried). The car had been taken on June 18, 1978, by D's brother E Diggin, and one Z. They had pleaded guilty at the magistrates' court to TWOC. They collected D, having "taken" the car. D's defence was he thought it was Z's car, which was of the same make and year. They were then seen getting into the car by police officers, and were arrested before the vehicle moved. D asserted that it was only when the police approached that he learnt the vehicle was taken without consent.

At the trial, the judge directed the jury that such an assertion revealed no defence because the offence was committed by "allowing" oneself to be carried and not by "being carried" so the offence was committed before the ignition switch was turned.

The Court of Appeal held that this decision was wrong, and the conviction was quashed. There must be some movement for someone to be carried. They applied Miller [1976] Crim L R 147, supra.

12.(6)A person does not commit an offence under this section by anything done in the belief that he has lawful authority to do it or that he would have the owners's consent if the owner knew of his doing it and the circumstances of it.

In R v Clotworthy [1981] Crim L R 501 C worked in a garage to which a customer had brought his car for repair. A mechanic asked C to drive the car to the other garage. C who had no driving licence and was uninsured to drive, did so but was stopped by police. He was charged with TWOC. He said he believed he has lawful authority to drive the car since it was common practice. he had often done so with the garage owner's knowledge and approval.

The prosecution submitted the car owner would not have given consent to an unlicensed and uninsured driver. It was contrary to the garage owner's terms of bailment to allow such a person to drive and, therefore, C could not rely on s.12(6) since he knew that he had no licence or insurance. The trial judge upheld the submission,C therefore changed his plea and was convicted and sentenced. He appealed against conviction.

Held, allowing the appeal, It was for the jury to decide what C's state of mind was. Did he have a genuine belief? Whether or not such an assertion carried weight with a jury would depend on the circumstances of the case. The conviction was quashed.

In The Times 4 February 1992 Sir Frederick Lawton advocated a return to the "short sharp shock" treatment that had been used in detention centres. The system, since abandoned, was adopted at all centres in 1985. As he correctly points out, joy riding is committed mostly by youths between 16 to 18 who are obsessed with cars.

In an article in The Times 21 January 1986 Peter Evans describes a day in the life of a detainee. For my part the regime described was softer than the one I faced upon joining the Royal Navy as a junior seaman in 1956: naturally we had our fair share of wrong'nes, I do not recall it detracting them from the path they had chosen, and we had volunteered.

I am not against locking them up if the circumstances demand it; however it cannot provide the whole answer. I would support the Probation Service with their "motor projects." I say keep them out if possible, but make them work.

Crime prevention must always be the first line of attack. According to a survey published 11 February 1992 one person in three leaves a vehicle unlocked at some time. The survey also revealed that only 15% are fitted with engine cut out devices. In this the Government's car crime prevention year it is intended to reverse the casual attitude of the public. 88% of the 1,002 questioned thought that manufacturers could do more to improve security. The vital question is what are we doing about the problem?

Rob Jerrard

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