Burglary

Burglary

Burglary is generally thought of as the typical situation of someone breaking into a private home and stealing from it. In law, burglary does cover this situation but it goes further.  The law on burglary is divided into two parts: s9(1) a and s 9(1) b of the Theft Act 1968.

Definitions of burglary under s.9(1) Theft Act 1968

Section 9(1)(a) states:
A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict gbh, or do unlawful damage to the building or anything in it.

Section 9(1)(b) states:

A person is guilty of burglary if, having entered as a trespasser, he steals or attempts to steal anything in the building or inflicts or attempts to inflict gbh on any person in the building.
Background and Sentencing

Given that burglary is quite an intrusive offence there is a difference in maximum sentence if there is a threat to a home.  There is a higher maximum sentence if the property burgled was a dwelling (i.e. home or house) and therefore technically s9 creates four offences:

• s.9(1)(a) of a dwelling- Max 14years
• s.9(1)(a) of a non-dwelling- Max 10 years
• s.9(1)(b) of a dwelling- Max 14 years
• s.9(1)(b) of a non-dwelling- Max 10 years

Within both s 9(1) a and 9(1) b there are a number of common elements specifically  in actus reus:-

• Entry

• Of a building

• As a trespasser

 And in mens rea:

• Knowledge or recklessness as to entering as a trespasser. 

However, there are individual features of the offences which make them quite distinct. The offences of 9(1)(a) and 9(1)(b) will therefore be considered in turn.

Burglary under s 9 (1)(a)

The Actus Reus of s 9 (1)(a) has three elements:-

1.       Enters

2.       Building or part of a building

3.       As a trespasser

 And the Mens Rea has two elements:-

1.       Knowledge or recklessness as to his entering as a trespasser

2.       Intent to commit theft, gbh or damage building or its contents.

 

Burglary under s 9 (1)(b)
The Actus Reus of s 9 (1)(b) has four elements:-

1.       Enters

2.       Building or part of a building

3.       As a trespasser

4.       Actus reus of theft or gbh

 And the Mens Rea has two elements:-

1.       Knowledge or recklessness as to his entering as a trespasser

2.       Mens rea for theft or gbh / or attempted theft or gbh

 

Actus Reus of burglary

Actus Reus under s9(1)(a)- Entering a building as a trespasser.

Entry

The defendant must enter, or have entered, a building in order to be guilty of burglary. Whether there has been an entry is a question of fact for the jury. In giving them guidance, the Court of Appeal has held that there has to be an ‘effective’ entry.  This essentially means that there must have been ‘enough’ of the defendant in the building to achieve the ulterior intent (ie of committing or attempting to commit one of the ulterior offences)

R v Collins (1972)

D went past a house where he knew a young lady lived. He climbed a ladder up to her window and peered in. She was lying naked on the bed, which was near the window. Collins descended the ladder, took off all his clothes, except his socks, and climbed back up the ladder. As he reached the window, the young lady woke up saw a naked man with an erect penis and, thinking he was her boyfriend invited him in; they then had sexual intercourse. She then realised that it was not her boyfriend. It was held that in order to be convicted of burglary, D had to have made a substantial and effective entry as a trespasser before consent was given.

The jury had not been asked to consider the vital question whether he had entered the building as a trespasser and whether he knew or was reckless as to whether he was entering as a trespasser. It was accepted that an invitation from the young lady would have been sufficient to make Collins’s entry not trespassory and so consideration should have been given to when her invitation was made, that is, whether he was outside the building at that time or not. Presumably someone could override such permission with a greater interest in the building in question.

The court expressed its view on mens rea as follows. . . “there cannot be a conviction for entering premises ‘as a trespasser’ … unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent"

Edmund Davies LJ: "a serious offence like burglary should require mens rea in the fullest sense of the phrase: D should be liable for burglary only if he knowingly trespasses or is reckless as to whether he trespasses or not"

Not guilty

R v Brown 1985

D was seen leaning through a broken shop window with the top half of his body inside a shop as though he was rummaging around. His feet were on the ground outside. He claimed that he could not be said to have entered a building if only part of his body had been inside it. It was held the word "enter" in s 9 of the Theft Act 1968 meant "effective" entry; it was not necessary for the entry to be complete or even substantial, so long as the entry was effective for D to carry out the ulterior offence. The proposition that a person could break a shop window, pass his hands through the window into the shop and steal and not be held as having entered as a trespasser was incredible.

R v Ryan 1996

D burgled a house but only got as far as being trapped by his neck with only his head and right arm inside a window.  He was not in a position to steal.it was held it cannot have been intended that D must have got so far into the building as to be able to accomplish his unlawful purpose. It appears therefore that we return to the common law position that the body or part of the body or an extension of the body used or intended to facilitate theft amounts to entry whereas entry by a tool for effecting entry does not.

 

Building or part of a building

The place which d enters as a trespasser must be a building or part of a building. Under the act there is no formal definition of a building, but s 9(3) states that it must be a fairly permanent  fixed structure or a substantial portable structure that is designed to be lived in i.e. it includes inhabited vehicles or vessels (for example, caravans and house boats) e.g.

S9(3) states:- “references in subsections 1 and 2 above to a building shall also apply to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having habitation in it is not there as well as times when he is.

Stevens v Gourley 1859

This case involved a contract for the erection of a building in contravention of the Metropolitan Building Act 1855 (repealed) and could not be enforced. It was a structure of wood, of considerable size, 16 feet by 13, and intended to be permanently used as a shop. It was held that it was a ‘building’ within, although not let into the ground, but merely laid upon timbers upon the surface.

A building comprised…. “a structure of considerable size and intended to be permanent or at least to endure for a considerable time”

B and S v Leathley 1979
A lorry container was resting on sleepers and used as refrigeration storage. It was connected to the electricity supply and had been in the same place 2-3 years. It was held that the container did constitute a building for the purposes of the Theft Act 1968.

Norfolk Constabulary v Seekings and Gould 1986

Two lorry trailers were being used as storage space in a Budgen's supermarket during refurbishment. They had been in place for about a year and were still on wheels. It was held that these did not amount to a building.

R v Walkington 1979

The defendant was in Debenhams department store. He saw a till which was partially opened and left unattended. He reached behind the counter and looked into the till but it was empty. He was charged with burglary under s.9(1)(a) for entering a part of a building with intent to steal. He was convicted and appealed contending that the counter which is not physically separated from the rest of the store cannot amount to a part of a building. It was held that his conviction was upheld. There was no requirement to have a physical separation. The counter area was clearly out of bounds to the public and thus he was a trespasser in that part of the building.

Trespass

Trespass is defined as: Occurring when a person intentionally or recklessly enters a building in the possession of another without permission or a legal right to do so. This means that entry must be voluntary, not forced or purely accidental.

Usually it is easy to show that the wrongdoer is trespassing but occasionally there are problems, as, for example when the defendant claims he has a right to be there. For the offence of burglary to be successful there must be a finding of civil trespass, but the Court of Appeal has held that a defendant charged with burglary must have mens rea as to whether or not he is trespassing. That is, d must enter ‘knowing that he is a trespasser…or, at the very least is reckless whether or not he is entering the premises of another without the other party’s consent’.

R v Collins 1973

For facts of the case see above. In this case the defendant was not trespassing as he was invited inside and therefore made an effective entry.

 

Permission to enter a building can be given expressly or impliedly from the circumstances. A person who is given permission to enter for one purpose but in fact enters for another purpose is entering as a trespasser.  For example in:

R v Jones and Smith 1976

D stole two televisions from his father's house, which he had general permission to enter. He had left home but was allowed to visit. It was held that D was a trespasser if he entered premises knowing that or being reckless whether he was entering in excess of any permission that had been given to him to enter. D was found guilty.

 

The principle is that if a person enters a building with intent to steal, cause gbh or criminal damage, he does so as a trespasser except in the unlikely event of the occupier giving him permission to do so.

Coincidence in time- The defendant must be a trespasser at the time of entry into the building or part of the building:

R v Laing 1995

D hid himself in the stock area of a department store.  When the store had closed he was discovered. There was no evidence that he was a trespasser when he entered the store. It was held the prosecution should have alleged he was a trespasser when entering the stock room. D was found not guilty.

 

Actus Reus of s9(1)(b)- The prosecution must prove all the elements of the actus reus of s9(1)(a) offence and in addition prove that the actus reus of the ulterior offence (stealing, attempting to steal, inflicting or attempting to inflict gbh) has been carried out. This offence is committed not at the time of entry but at the time of committing the ulterior offence.

 

 

 

 

Mens Rea of burglary

Mens Rea of 9 (1) (a) - There are 2 elements: intention or recklessness as to the trespass, and intention to commit the ulterior offence.

1.       Intention or recklessness as to the trespass.

In civil law there is no need for mens rea to be proved in relation to a civil trespass, but in criminal law it is necessary in the context of burglary. The relevant form of mens rea is intention or subjective recklessness. In the case of Collins the defendant probably lacked intention or recklessness to trespass if he enters the house after the girl had invited him in.

2.       Intention to commit the ulterior offence

The defendant must intend to commit one of the offences listed in s.9(2), known as the ulterior offences: theft; inflicting gbh; unlawful damage to the building or anything in it. The intention must exist at the time of entry. Provided the defendant enters with the relevant intention, the full offence of burglary is committed at the point of entry; the defendant need not actually proceed to commit the ulterior offence.

Conditional Intent

Conditional intention is not enough for theft. However for burglary conditional intent can be sufficient, so if for e.g. a defendant breaks into a house intending to steal if they find anything worth taking, or to commit gbh to a particular person if that person is in the house, then that intention may be sufficient for burglary.

R v Walkington 1979

The defendant was in Debenhams department store. He saw a till which was partially opened and left unattended. He reached behind the counter and looked into the till but it was empty. He was charged with burglary under s.9(1)(a) for entering a part of a building with intent to steal. He was convicted and appealed contending that the counter which is not physically separated from the rest of the store cannot amount to a part of a building. It was held that his conviction was upheld. There was no requirement to have a physical separation. The counter area was clearly out of bounds to the public and thus he was a trespasser in that part of the building.

Attorney-Generals References (Nos 1+2 of 1979)

D2 was caught inside a house.  D1 found attempting to burgle a house through French windows he admitted he intended to steal “anything lying around”.  Both acquitted by the trial judge because it had not been specified by the prosecution what items they intended to steal. It was held that conditional intent will suffice; meaning quite simply that all that is required is intent to steal at the time of entry. It is not necessary to prove what was the objected that D intended to steal.

If it subsequently turns out that there is nothing worth stealing in the building, the defendant still may be prosecuted for burglary. Similar considerations apply where the charge relates to attempted burglary. Found not guilty, but would be now.

Mens Rea of 9 (1)(b)- the prosecution must prove intention or recklessness as to the trespass. In addition, they must prove the mens rea of the ulterior offence (in gbh this includes recklessness). The defendant need not have the mens rea of this ulterior offence at the time of entry, but must have it when the ulterior offence is committed.

For both types of burglary, the maximum sentence is 14 years’ imprisonment where the property burgled is a dwelling, and 10 years where it is not a dwelling.