BURGLARY

Ss 9 & 10 of the Theft Act A person is guilty of burglary if: a. he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or b. having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

Regarded as a property offence because it involves an element of tresspas But It doesn’t involve an acquisition of property

now carries two different maximum penalties depending on whether the burglary took place in a dwelling house (14 years) or in commercial or other premises (10 years). Burglary of someone’s house is therefore regarded as a more serious offence

There are 3 types of Burglary All three types have the following mens rea D enters a building or a part of a building as a trespasser.

Entry Section 9 merely uses the word ‘enters’ The courts have therefore had to consider whether D’s whole person must enter a building (or whether a part of D’s body would suffice) and whether entry can be made using another person or an instrument. entry could be effected via the innocent agency of a third party, animal or instrument ( pair of extending tongs)- Wilson 473

Entry

leading case - Collins [1972] Activity 16.2 page SG 243 The Court of Appeal stated that full entry of D’s entire body was not necessary. What was required was a ‘substantial and effective entry’. conviction was quashed Court of Appeal was that had D still been on the outer windowsill at the time that V invited him in, then he would not have made a substantial and effective entry at the time that he was a trespasser.

The direction in Collins on the issue of ‘entry’ into a building has been modified and relaxed in subsequent cases. Ryan [1996] Brown [1985]

Brown [1985] and D had leaned through a broken shop window and was found rummaging around for goods. Held the word ‘substantial’ was of no assistance test is whether the entry is ‘effective’.

Wilson 473 It seems necessary that the insertion of part of the body should be in the execution of the entry proper rather than accidental or preparatory to it. a person who inserts a hand for the purpose of unlocking the window-catch with his burglarious purpose to be effected on the other side of the building, is probably too far removed from the substantive offence to count as more than an attempter

Ryan [1996] D leaned inside a window, but became trapped with only his head and right arm inside the window. Ryan was held to have made an ‘effective’ entry even though he was not able to steal anything as only his head and right arm were inside the window and both were trapped.

Burglary is not house breaking entry, for the purposes of burglary, does not have to be forced, and the offence is no longer described as ‘breaking and entering’.

What is a “Building” S 9 (4) An inhabited vehicle or vessel… at times when the person having a habitation in it is not there as well as at times when he is.

What is a “Building” Will include inhabited structures such as Caravans House boats Uninhabited structures such as Barns Garages Also Churches,shops,warehouses

Other structures that will fall into “Building” B and S v Leathley [1979] a freezer container that had been placed in a farmyard for goods storage, with locked doors, which had been resting on sleepers for two or three years, connected to mains electricity, The structure needs to be relatively permanent (Royal Exchange Theatre Trust v The Commissioners [1978]) The structure needs to be complete (Manning and Rogers [1871]), so the foundations of a building without complete walls or a roof would not suffice

It includes tents but probably not sheds, garages and outbuildings – Wilson 476

Entering “part” of a building where D has permission to be in one part of a building but enters another part where he is tre Walkington [1979] D was in a shop and went behind a moveable counter in the shop to put his hands in the till. He was permitted to enter the shop and so, in order to be guilty of burglary he would have had to enter a part of the building as a trespasser. In this case D was held to have done so as he entered a part of the building (behind a moveable counter) from which D knew the public were excluded.

D must enter as a trespasser Trespass is not a criminal offence but a tort (civil wrong) and the word bears its civil law meaning in the Theft Act 1968. Under civil law a trespass is committed where D intentionally, recklessly or negligently enters the property without the owner or occupier’s consent.

It must be a building or part of a building that is entered and D must not have consent of the occupier or owner at the time that he enters.

A police officer who enters a building with a search warrant with the intention of stealing is guilty of Burglary – Wilson 474

Collins D may not have entered as a trespasser if he had been invited in before he crossed the threshold between the outer and the inner windowsill. If V invited him in as he was on the outer sill, then he entered as an invitee with permission and was therefore not a trespasser. If a young child invites a potential rapist or a rogue swag-bag over his shoulder will he be a trespasser – see Wilson 475 where he refers to Griew’s views.

Collins

Jones and Smith [1976] The above point was stressed further D entered his father’s house, with his father’s permission. Once inside D and his friend stole two televisions. D was convicted of burglary on the grounds that he had exceeded his father’s permission to enter the house, because at the time that he entered, he intended to steal. The father’s permission to enter the house did not extend to permission to enter a house to steal something. D had therefore intentionally entered as a trespasser as he knew that his father did not consent to his entry to the house for this purpose. Actus reus widened

See illustration on page 476 of Wilson

Burglary under Section 9(1)(a) an incohate offence ( Wilson 472) D enters a building or part of a building as a trespasser with intent to commit one of the ulterior offences listed in s.9(2) then he may be guilty of burglary even though the ulterior offence is not committed. The relevant ulterior offences are:  theft  inflicting GBH  criminal damage. Offences other than theft may form the meat of the burglar’s nefarious sandwich – Wilson472

intent to commit one of the ulterior offences is required ( burglary = a specific intent crime.) Relevant where D pleads the defence of intoxication

Burglary under Section 9(1)(b) A consummated offence – Wilson 472) D enters a building or part of a building as a trespasser and actually commits one of the subsidiary offences set out in s.9(1)(b), which are: * Theft or attempted theft * Infliction or attempted infliction of GBH.

All actus reus and mens rea requirements of the ulterior offence must be established for the charge of burglary. So where D enters a building as a trespasser and once inside steals, he may be guilty of both theft and burglary

criminal damage is not a subsidiary offence for the purposes of s criminal damage is not a subsidiary offence for the purposes of s.9(1)(b) but is a subsidiary offence for s.9(1)(a).

Burglary and Sexual offences Section 9(1)(a) used to include rape as one of the subsidiary offences for an offence ( This is why Collins was charged with burglary) Sexual Offences Act 2003 removed rape from s.9(1)(a) of the Theft Act and replaced with a new and separate offence of trespass with intent to commita sexual offence.

s.63 of the Sexual Offences Act 2003 A person commits an offence if: a. he is a trespasser on any premises b. he intends to commit a relevant sexual act (i.e. one contained in Part I SOA 2003) c. he knows that, or is reckless as to whether, he is a trespasser.

Aggravated Burglary The Third type of Burglary Actus reus and mens rea is the same as s 9 additional actus reus element that D, at the time of committing the burglary, has with him one or more of the following:  a firearm or imitation firearm  a weapon of offence  an explosive. This carries a higher maximum penalty in view of the potential harm that D might cause if he were to use one of these forms of weapons.

Weapon of offence Imitation firearm Firearm Explosive Aggravated Burglary Weapon of offence Imitation firearm Firearm Explosive