Robbery and the Principle of Fair Labelling

The Offence of Robbery

Robbery was originally an offence at common law but is now defined in s. 8 of the Theft Act 1968:

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

(2) A person guilty of robbery, or of assault with intent to rob, shall on conviction on indictment be liable to imprisonment for life.

Robbery is therefore an offence based on two wrongful acts—theft and the use or threatened use of force—committed during a single ‘transaction’ or ‘venture’. ⁹ In this respect, robbery is somewhat unusual in that it combines a property offence with an offence against the person. ¹⁰ The maximum penalty of life imprisonment for robbery is significantly greater than the punishments available for the constituent offences of theft and assault, ¹¹ and a number of possible justifications have been put forward for this.

First, the use of force may make completion of the theft more likely. ¹² This in itself is unconvincing as it implies that the criminalisation of robbery is principally concerned with reducing the incidence of theft. It does not explain why the maximum penalty for robbery is greater than that for theft if the law is primarily concerned with preventing complete thefts. Second, the use of threat of force makes the theft more highly motivated, and risks exposing the victim to greater injury and to a different type of harm. There is obvious merit in this argument, yet it fails to fully recognise the causal relationship between the theft and assault as required for robbery. A defendant who steals the victim’s property and then opportunistically commits an assault is not guilty of robbery as the force is not used in order to facilitate the theft—the theft is complete without recourse to the use of force. Nevertheless, the victim here suffers two types of harm: deprivation of property and physical injury; the same types (and perhaps the same degrees) of harm as suffered by the robbery victim, yet no robbery is committed. In this sense, robbery is more than the sum of its parts: it is more than merely a theft and an assault. The rationale for robbery ought to recognise the causal relationship between the theft and the force. More convincingly perhaps, it has been argued that the use or threatened use of force, which is inextricably linked to a theft, fundamentally changes the moral character of the offence from a simple theft to an offence which threatens both property rights and personal integrity. ¹³ A person who uses force during the course of a theft demonstrates not only a dishonest character but a violent one also.

To be guilty of robbery, the prosecution must prove that the defendant used force on any person (not necessarily the victim of the theft), threatened to use force or sought to put another person in fear of force being used. ¹⁴ The Act does not define force nor does it quantify the level of force required. ¹⁵ It has been left to the jury to decide whether the level of forced used is sufficient to constitute robbery. In Dawson and James, ¹⁶ the Court of Appeal held that the jury had been entitled to convict of robbery where the defendant had nudged the victim, causing him to lose his balance and thereby making it easier for the defendant to steal his wallet. Similarly, the Court of Appeal in Clouden ¹⁷ held that whether the defendant’s act of wrenching the victim’s shopping basket from her hand constituted the use of force for the purposes of a robbery conviction was a matter for the jury and as such, the jury had been entitled to convict on that basis. ¹⁸ The term ‘force’ has therefore been interpreted widely by the courts so as to include only the slight force used in a nudge or slight push. The effect of this is to regard such offences involving only slight force as robberies rather than thefts, thereby placing them in a category of offence which carries life imprisonment as its maximum sentence. ¹⁹ One limitation has however been placed on the level of force required for a robbery conviction. In DPP v RP, ²⁰ the Court held that snatching a cigarette from the hand of the victim with no physical contact between the two is incapable of amounting to a robbery as the act does not amount to the use of force. While the verdict may be correct, the reasoning behind it should be treated with some caution The High Court supported its conclusion by reference to an argument that snatching a cigarette ‘cannot cause any pain unless, perhaps, the person resists strongly, in which case one would expect inevitably there would be direct physical contact between the thief and the victim as well’, ²¹ yet the definition of robbery does not require any such physical contact between the parties.

There has been considerable academic criticism of the decisions in Clouden and Dawson & James which upheld robbery convictions for cases involving relatively little force used in pursuit of the theft:

…it may well be thought that conduct such as that in [Clouden] is more akin to that of a pickpocket than a bank robber and it is quite adequately dealt with by the offence of theft which is, after all, punishable with a maximum of [seven] years’ imprisonment. ²²

That said, not all commentators share the view that bag-snatching is comparable to pickpocketing: some suggest that bag-snatching should rightly be regarded as robbery because snatching will involve some force exerted on the person, whereas the pickpocket will not usually be guilty of robbery because he acts not with force but with stealth. ²³ Nevertheless the Criminal Law Revision Committee, upon whose report the Theft Act was largely based, ²⁴ was of the opinion that bag-snatching from an unresisting victim should not be regarded as using force for the purposes of robbery, although it might constitute a robbery where the owner put up some resistance against the offender, ²⁵ grappling to retain possession of the property.

The Principle of Fair Labelling

When a crime is committed, it is not enough that an offender be convicted of something, what matters is of what he has been convicted. ²⁶ To achieve this, the law must distinguish between different types of offending and varying degrees of wrongdoing, and offences need to be sufficiently narrow and appropriately labelled so as to represent the nature and seriousness of the criminal behaviour. ²⁷ The criminal law could theoretically operate with a relatively small number of widely defined offences, ‘but we shrink from this in the belief that the label applied to an offence ought fairly to present the offender’s wrongdoing’. ²⁸ More accurately defined and narrowly labelled offences are able to convey to both the public and the offender the relative seriousness of the offence, while also confining the courts’ sentencing powers appropriately to the seriousness of the conduct. ²⁹ The first role of the principle of fair labelling is to ensure that the labels attached to offences (and thereby to offenders) adequately describes the type of conduct committed. ³⁰ It would be unfair to convict of murder a person who has not caused the death of another person, ³¹ since causing death is a defining feature of murder. However, the principle of fair labelling ³² goes beyond this by seeking to draw distinctions between offences with widely differing levels of harm or offender culpability. The second role of the principle is therefore to ensure that each label appropriately distinguishes different degrees of a type of harm. In the context of homicide, the principle has led some to question the fairness of convicting of the same offence those who kill in ‘cold blood’ and those who kill a relative in an act of mercy:

One of the long-standing criticisms of English homicide law is that the crime of murder, which is supposed to encompass the most serious forms of homicide, is in some respects defined too widely. Some defendants who are convicted of murder do not deserve anything like the same degree of moral censure and level of punishment as others. ³³

Accordingly, the principle of fair labelling seeks not only to accurately describe the offending conduct but also to distinguish between acts that could be classified under the same offence group despite differences in their degree of wrongdoing. ³⁴ An unfair label risks misrepresenting the nature and seriousness of the offender’s conduct, thereby potentially misleading the public into believing that the conduct was more serious than it in fact was. ³⁵ Fair labelling does not only have to be considered from the offender’s perspective. An unfair label may also affect the victim of the offence by failing to properly reflect the wrong that they have suffered. ³⁶ In addition to these normative concerns, there are also practical justifications for adherence to the principle of fair labelling. The criminal label attached to the person is important for determining the maximum penalty available to the court upon conviction, while also establishing the relevance of any previous convictions, and the classification of prison in which the offender will serve his sentence in the event that a custodial sentence is imposed. ³⁷ In addition, the label may lead to the offender being be shunned by the community, ultimately raising greater challenges to securing future employment. ³⁸ A label which accurately and precisely describes the nature and seriousness of the conduct helps to ensure that accurate records are kept and reduces the likelihood of misrepresenting the nature or seriousness of the offender’s conduct. ³⁹

Robbery and Fair Labelling

The current definition of robbery clearly violates of the principle of fair labelling. The offence carries a maximum penalty of life imprisonment and conjures up an image of an armed raid by a masked gang seeking substantial gains. ⁴⁰ Yet, as already outlined, the offence is also made out by a slight push used in order to snatch a bag from the victim’s possession. The single ‘robbery’ label does not reflect the obviously different degrees of force used or threatened in these very different cases. Ashworth has argued that an offence as broad and undifferentiated as robbery should be rejected on the basis that it:

…fails to mark in a public way the distinction between a mere push and serious violence, and because the label ‘robbery’ is therefore too vague and too liable to stereotypical interpretations—some may assume that serious violence, or a weapon, was involved when this was not necessarily the case. ⁴¹

He continues to say that while robbery is often regarded as a serious offence, this is only true of some robberies: others involve only a small theft with only slight force which itself would not amount to anything more than an assault or battery. ⁴² Indeed, there are other robberies in which the threatened use of force need not amount to a criminal offence at all: to be guilty of an assault, the defendant must cause the victim to apprehend immediate and unlawful violence, ⁴³ but a person can be guilty of robbery even where the threatened use of force does not lead the victim to apprehend violence.

According to the principle of fair labelling, offences should reflect meaningful distinctions in the public mind between types of culpable wrongdoing. Offences should be drafted to distinguish significant differences in harmfulness, wrongdoing and culpability. ⁴⁴ Green and Kugler’s study on the public’s perception of the seriousness of property offences offers some evidence of noticeable distinctions in the public mind between robberies involving varying degrees of harm and wrong. ⁴⁵ The study asked 166 respondents to rank different property offences by seriousness. On average, the respondents regarded armed robbery (involving the threatened use of a gun in order to steal property) as more than four times more serious than simple robbery (involving the snatching of the same property). ⁴⁶ Both offences would fall within the current English definition of robbery, yet the perceived difference in seriousness between the two forms of robbery was, according to the study’s respondents, greater than the difference between simple robbery and any other form of theft.

This suggests that robbery is currently too wide and should be narrowed or subdivided in order to properly reflect the extent of the force used or threatened. An argument could also be made in favour of redrafting the offence of theft—itself a constituent element of robbery—so as to reflect the difference between a low-value taking and a high-value theft, ⁴⁷ but this is probably secondary to the issue of violence which will often represent the more serious element of the robbery and which ultimately explains the disparity between the maximum penalty for theft and that of robbery. Fair labelling is already adopted for non-fatal offences against the person, and there would surely be little—if any—support for a single all-encompassing offence of using force against another person, ⁴⁸ yet where the force is used in conjunction with a theft, that is precisely what the law currently provides: a single offence which does not differentiate the extent of the force used.

As has already been established, there is no minimum level of force required in order to convict a person of robbery; even the slightest nudge or push would entitle the jury to convict of robbery instead of the less serious offence of theft. Imagine a fairly typical street theft: a person is standing at a bus stop with a shopping bag placed at her feet. Concealed from her, another person approaches from behind, snatches the bag from the ground and runs off. Here it is likely that the offender would be charged with theft; there is no force used against the person because the shopping bag is not in the immediate possession of the victim at the time of the theft. Alternatively, imagine that our victim is holding the bag in her hand while waiting at the bus stop. As before, the offender approaches from behind and snatches the bag—this time from the victim’s hand. The fact that the assailant approaches from behind might mean that the victim was unaware of his presence, and she may not have put up much resistance against the grabbing. Nevertheless, the offender in this instance could be convicted of robbery: he has used force to facilitate the theft and the victim’s apparent unawareness of the impending taking would not preclude a robbery charge. While the latter case would certainly be regarded as more serious than the former, it is questionable whether the relatively limited force used in order to steal the bag from the victim’s hand should be sufficient to elevate the offence from theft to robbery, as the minimal force used may not adequately change the nature of the offence from a simple theft. ⁴⁹ Moreover, the offence could quite adequately be dealt with under the law of theft by regarding the use of force as an aggravating factor, while still sentencing the offender within the seven year maximum for theft.

Reform

There are strong arguments in favour of reforming the current law on robbery based on the principle of fair labelling. If it is accepted that the offence is in need of reform, a number of options might be considered. This part considers a number of possible options for reform and examines the merits of each.

One radical solution would be to abolish the offence of robbery and instead rely on the offence’s constituent parts—namely theft and assault. There is some academic support for this suggestion, chiefly by Paul Robinson who has argued that:

‘…creation of a robbery offence adds nothing to the law’s statement of prohibited conduct; the theft and assault prohibitions already clearly criminalise the conduct described in the robbery offence’. ⁵⁰

However, some might suggest that this disaggregation approach fails to appreciate what is distinctive about robbery: the offence is not simply the sum of a theft with assault, it is a distinct wrong which ‘is not ultimately reducible to its constitutive elements’. ⁵¹ Divorcing the assault from the theft fails to appreciate the causal relationship between the two; it is not enough that the theft and assault simply coincide. ⁵² Robbery is only made out where force is used or threatened in order to facilitate the theft. The proposal to abolish the offence of robbery would lead to current robberies being charged in the same manner as cases where the defendant assaults the victim and then opportunistically steals his property ⁵³ or where a person commits a theft alongside a distinct and unrelated assault. A further objection to this proposal is that the offence of assault is not an essential element of robbery ⁵⁴ : the force used in pursuit of the robbery need not constitute an assault, and the threatened use of force may not warrant criminalisation at all since there are no general offences of threatening to use force other than common assault and threatening to kill or inflict serious injury. ⁵⁵ This leaves a middle ground, between threats of minor harm constituting common assault, and more serious threats to kill or inflict serious injury, for which a new offence would be required. Ashworth has argued that this gap ought to be closed through the creation of a new offence, suggesting that, were this to happen, there would be a strong argument that the offence of robbery would become obsolete. ⁵⁶ But this implies that robbery exists only in order to fill a lacuna in the law where the threat falls between the two criminalised extremes of common assault or a threat to kill. Surely it cannot be right to suggest that robbery—as an indictable offence carrying a maximum of life imprisonment – is to be used only where the threat made is not sufficiently serious to constitute a threat to kill, particularly given that threats to kill are triable either way and carry a maximum of 10 years’ imprisonment, substantially less than the maximum for robbery. ⁵⁷

An alternative solution would be to divide the broad offence of robbery into narrower types, based on the degree of force used or threatened. This would allow the law to distinguish robberies involving the use or threatened use of lesser degrees of force from those involving significant violence or the use of firearms. Ashworth has argued that ‘consideration must be given to dividing the offence [of robbery] so as to mark out as particularly serious those robberies which involve the use or threat of serious violence’. ⁵⁸ Stuart Green has similarly proposed a system by which robberies are graded according to offence seriousness. He suggests two forms of robbery: aggravated or armed robbery for thefts that involve the use of a weapon or the infliction, or threat, of immediate serious bodily injury, and simple robbery covering thefts committed through the infliction or threat of non-serious bodily injury. ⁵⁹ One difficulty with this proposal is that the label ‘robbery’ carries connotations of a serious offence, ⁶⁰ and division of the offence into narrower categories which retain the robbery label (for example, ‘simple robbery’ and ‘aggravated robbery’) would not necessarily redress the perception of seriousness. ⁶¹ This could be overcome through the creation of a new offence, which avoids the use of the stigmatic robbery label; perhaps ‘aggravated theft’, ‘theft aggravated by assault’ or ‘assault in the course of a theft’. Each of these would signify that the offence involved an element of violence but would avoid use of the term ‘robbery’ and its associated connotations. Any use of the term ‘robbery’ to describe the less serious forms of the offence risks misrepresenting the seriousness of the offence and may ultimately ‘have a more detrimental effect on the offender’s prospects and reputation’ than is deserved. ⁶²

Glanville Williams argued it would be both impractical and undesirable to fragment offences into a series of narrow offences which—in the case of robbery—are distinguished on the basis of the level of force used. ⁶³ This fragmentation would add to the jury’s task and would increase the chance of an ‘unmeritorious defence’. ⁶⁴ At the heart of Williams’ criticism is the impact that offence definitions have on the prosecution’s duty in establishing guilt: if offences are defined very broadly, the prosecution’s task is eased, but the opposite becomes true if offences are defined narrowly. ⁶⁵ The creation of many narrow offences risks overcomplicating the law by raising ‘needless arguments about the appropriate charge in respect of indisputably criminal conduct’. ⁶⁶ On the other hand, some might question the fairness of the law’s generality which is defended primarily on the basis of convenience for the prosecution. ⁶⁷

A third option for reform would be to introduce a minimum level of force to the definition of robbery, thereby narrowing the scope of the offence and preserving it for the more serious examples involving higher degrees of force and corresponding threats. Any offence involving force falling below the minimum level would not constitute robbery and instead would be charged as theft, with the use of force constituting an aggravating factor. Under the Model Penal Code, only those thefts which involve the infliction or threat of immediate ‘serious bodily injury’ are regarded as robbery and therefore subject to greater punishment. If the theft involves only minimal force, the Model Penal Code treats it as an ‘ordinary theft’. In contrast to the option of introducing a new offence of theft aggravated by assault, this solution does not require any new offences to be enacted, and thereby benefits from a simpler framework as the prosecuting bodies would only need to determine whether the offence constituted a theft or a robbery.

Conclusions

One of the major functions of the criminal law is to provide a proportionate response to crime and criminality. ⁷⁶ Criminal offences are categorised to symbolise the differing degrees of moral wrongfulness and relative gravity of different types of conduct, ⁷⁷ but this symbolic declaratory function cannot be conveyed adequately through broad uninformative labels. ⁷⁸ There is a stark difference between tugging a bag from the victim’s hand and robbing a bank while in possession of a firearm, yet both are covered by the single offence of robbery. ⁷⁹ The function of fair labelling is to ensure that distinctions in the nature and gravity of behaviour are marked out in the offence committed through the label used to describe the conduct and the offender. ⁸⁰

This article has argued for the recognition of a minimum force threshold within the definition of robbery in adherence to the principle of fair labelling, thereby ensuring that only offences which meet this minimum force threshold are described as robberies. Fair labelling has been criticised as leading to ‘an unnecessary multiplicity of offences, each based on very narrow definitions and reflecting minute variations between factual situations’. ⁸¹ But this objection would not apply to the proposal made here. Aligning the definition of robbery to the principle of fair labelling by incorporating a minimum force threshold does not require the creation of any new offences. That said, a graded system akin to that proposed by the likes of Stuart Green and Andrew Ashworth need not require a deluge of new forms of robbery either. After all, Green proposes only two forms of robbery: simple and aggravated. Arguably the principle of fair labelling should seek only to distinguish between significant differences in the nature or wrongfulness of conduct. ⁸² This article has sought to establish an argument that the use or threat of minor force does to adequately change the nature of the offence such that the charge against the offender should be uplifted from theft to robbery.

Having argued for the recognition of a minimum force threshold, one obvious matter remains: If the law should distinguish between levels of force which are capable of amounting to robbery and those that are not, where should the line of demarcation fall? At what point does the level of force become sufficient for robbery? If the minimum force threshold is drawn low on the force spectrum, robbery would remain a relatively wide offence since a broad range of degrees of force would suffice for robbery. According to Simester and von Hirsch, the law must occasionally accept some over-inclusive criminal prohibitions as it will often be impractical to draft offences which encompass all—but only—instances of conduct to which a particular offence should be aimed. ⁸³ On the other hand, if the threshold was drawn higher on the force spectrum, robbery would become a narrow offence reserved only for the most serious forms of violence. This would mean that thefts involving a moderate level of force would not constitute a robbery, yet labelling such behaviour as a mere theft would also contravene fair labelling and would not reflect the type of conduct experienced by the victim.

Wherever the force threshold may fall, the argument made here is that the minimal force used in Dawson & James and bag-snatchings with little or no victim resistance should not amount to robberies. The principle of fair labelling requires that offences be labelled and defined in such a way as to convey accurately the nature and seriousness of the conduct, ensuring that the label does not mislead through vagueness or over-generalisation. ⁸⁴ The force threshold should therefore be drawn at a point where the force changes the nature of the offence from a theft aggravated by force, to a robbery.