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
• 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
1.
Knowledge or recklessness as to his entering as
a trespasser
2.
Intent to commit theft, gbh or damage building
or its contents.
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
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 1979A 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.
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.
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