Burglary

Lesson Objectives I will be able to state the definition of burglary I will be able to explain the actus reus and mens rea of burglary under s9(1)(a) and (b) of the Theft Act 1968 I will be able to explain cases that illustrate the law on burglary under s9(1)(a) and (b) of the Theft Act 1968

Burglary under s9(1)(a) and (b) of the Theft Act 1968 Intro from book The law on burglary is divided into 2 parts: S9(1)(a) of the Theft Act 1968 is concerned with going into a building as a trespasser with intent to commit one or more of a number of specified offences S9(1)(b) of the Act is concerned with committing one of a specified range of offences after an entry has been made to a building as a trspasser

Definition s9(1) 1. 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 2. the offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, or inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein

There are, therefore two distinct offences, the first under s9(1)(a) and the other under s9(1)(b)

Burglary under s9(1)(a) The offence has a number of elements that need to be considered: The actus reus has 3 elements: – Enters – A building or part of a building – As a trespasser – The mens rea has 2 elements Knowledge or recklessness as to his entering as a trespasser With intent to commit theft, grievous bodily harm or damage to the building or its contents

Burglary under s9(1)(b) The actus reus has 4 elements – Enters – A building or part of a building – As a trespasser – Actus reus of theft or grievous bodily harm, or attempt theft/grievous bodily harm therein – The mens rea has 2 elements Knowledge or recklessness as to his entry as a trespasser Mens rea for theft or grievous bodily harm or attempt theft/grievous bodily harm therein

The basic distinction between the two offences is that the first offence entry with an ulterior intent – to steal, cause gbh or cause damage The second offence is the commission of theft or gbh (or an attempt to do so) once entry as a trespasser has taken place There are, therefore, a number of common elements to theft: enters; building or part thereof; as a trespasser; knowledge or recklessness as to his entering as a trespasser

Enters Entry is done when what is called ‘effective’ entry has taken place. This is a question of fact and depends on whether enough of the defendant is in the building to achieve the ulterior intent (s9(1)(a)) or commit the crime or attempt crime (s9(1)(b)). This is illustrated by three cases.

Collins (1973) – entry, for the purpose of burglary needs to be effective; this means that it enables the crime to be committed, not that the defendant's body was wholly inside the building Brown (1985) - the defendant was seen with his head and shoulders inside a broken shop window; this was enough for effective entry to the shop Ryan (1996) – entry is effective even if the crime intended cannot be committed; in this case a would-be thief got trapped in a window, but he was still convicted of burglary Standing with a fishing rod through a letter box of another remote device to steal will amount to burglary as the device is likely to be considered an extension of the defendant’s body

Building or part thereof There is no formal definition of a building, but it must be a fairly permanent structure. This would appear to exclude a tent, so theft from a tent at a festival remains theft not burglary. Theft Act 1968, s9(3) 3) references in subsections (1) and (2) above to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as times when he is

This effectively means that burglary only applies to fixed structures of substantial portable structures that are designed for living in. So a motor caravan would be capable of being burgled whilst being used to live in, but not when used as a vehicle or parked up over winter. For the purposes of burglary it is only necessary to enter part of a building as a trespasser. This is because a person often has permission to enter parts of a building but not others – Walkington (1979) – part of a building may include a partitioned-off part of a shop; in this case the partition sectioned off the till and that was sufficient to make it burglary

As a trespasser As has been seen in Walkington (1979), entry to a part of a building that is clearly not one to which the defendant has express or implied permission to enter is trespass Trespass can be 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 entry must be voluntary, not forced or purely accidental. Thus, in Collins (1973), he could not be guilty of burglary if he was outside the building when the offence took place, that is, before the permission to enter was given

Permission is given either 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 Jones and Smith (1976) – the defendants were convicted of burglary because they had knowingly exceeded their permission to be in the house; permission was not given to enter and steal things The underlying 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

Knowledge or recklessness as to his entering as a trespasser Entry must be voluntary, not forced or purely accidental. For this purpose, the recklessness in Cunningham (1957) – subjective recklessness that is where the defendant knows there is a risk, is willing to take it and takes it deliberately

The different elements of s9(1)(a) and (b) of the Theft Act 1968 The first difference between the two sections is that for the offence under s9(1)(a) the defendant does not have to have committed that offence, only that he had the mens rea of intention to commit either theft, GBH of damage to the building or its contents The essential feature is that the defendant formed the intention before he entered the building as a trespasser. This intent can be conditional intent, e.g. to steal jewellery if there is jewellery inside the building

For the offence under s9(1)(b) to be committed, the defendant must commit or attempt to commit theft or GBH. Thus the offence requires the full actus reus and mens rea of those offences to be committed So far as GBH is concerned, this can be either s18 or s20 of OAPA 1861, and presumably, would implication include murder if that were to occur

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