Aggravated Burglary Flashcards
Aggravated Burglary—Theft Act 1968, s. 10
- Triable on indictment
- Life imprisonment
The Theft Act 1968, s. 10 states:
(1)
A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive;
Aggravated Burglary
An aggravated burglary is committed when a person commits an offence of burglary (either a s. 9(1)(a) or a s. 9(1)(b)) and at the time he/she has with him/her a WIFE.
W –
Weapon of offence
I –
Imitation firearm
F –
Firearm
E –
Explosive
At the Time
These words require consideration of the type of burglary the defendant is charged with. The moment at which a burglary under s. 9(1)(a) is committed is at the point of entry, therefore it is essential that the defendant has the WIFE with him/her when entering a building or part of a building with the intention of committing one of the trigger offences under s. 9(1)(a). If that is the case, the defendant commits aggravated burglary. The moment at which a burglary under s. 9(1)(b) is committed is when the defendant steals, inflicts grievous bodily harm on any person or attempts to do either. If the defendant has the WIFE with him/her when committing or attempting to commit either offence, an aggravated burglary is committed.
At the time - Example
A person (X) enters the kitchen of a house as a trespasser intending to steal property. At the point of entry, X does not have any WIFE item with him, so at this point in time X has committed a s. 9(1)(a) burglary. While X is in the kitchen, the occupier of the house enters the kitchen and disturbs him. X picks up a carving knife (not intending to steal it but intending to hurt the occupier with it if necessary) and threatens the occupier with it. At this point, the carving knife becomes a weapon of offence (intended to cause injury and because of the concept of ‘instant arming’ (see below)) but this is not an aggravated burglary as X has not committed or attempted to commit theft or to inflict GBH. The occupier rushes towards X who stabs the occupier, inflicting GBH in the process. This is a s. 9(1)(b) burglary and at the time of its commission X has a WIFE item with him; as a result, this becomes an aggravated burglary.
Has with Him
‘Has with him’ is more restrictive than the term ‘possession’. It will require the defendant to have some degree of immediate control of the item (R v Pawlicki [1992] 1 WLR 827) and will normally (but not exclusively) be the same as ‘carrying’ (R v Klass [1998] 1 Cr App R 453) although the defendant need not actually have the WIFE item on his/her person to be in immediate control of it. It is also essential that the individual has knowledge of the presence of the WIFE item. So if a burglary is committed by a single offender who knows he/she has a bayonet in his/her coat pocket when the offence is committed, the issue of aggravated burglary is clear. However, what of the situation where two offenders commit such a burglary? Liability depends on knowledge.
Has with him - Example
X and Y decide to commit a burglary together. X is concerned about being disturbed during the burglary and decides to take a knuckleduster (a weapon of offence per se as it is made for causing injury) along with him when the burglary takes place; he does not tell Y about the knuckleduster. When X and Y enter the building, they intend to burgle; both commit a s. 9(1)(a) burglary. As X has a knuckleduster with him at the time, X commits an aggravated burglary. However, Y does not commit the aggravated offence because he has no knowledge of the existence of the WIFE item. If X had told Y about the knuckleduster, then Y would have the required knowledge and would be deemed to have it with him so both would be guilty under s. 10 (R v Jones [1979] CLY 411).
Therefore, if the defendant has no knowledge of the WIFE item, he/she does not commit the aggravated offence.
If several people are charged with the offence of aggravated burglary, it must be shown that one of the defendants who actually entered the building or part of a building had the weapon with him/her. The offence is not committed if the WIFE item was being carried by a person who did not enter the building (R v Klass [1998] 1 Cr App R 453). In Klass, the court considered the example of an armed getaway driver who remains in a car outside the building while his colleagues burgle a nearby house. The fact that the driver has, for example, a weapon of offence with him would not mean that an aggravated burglary, rather than a burglary, has been committed.
It is important to note that the aggravated offence is committed due to the presence of the WIFE when the s. 9(1)(a) or s. 9(1)(b) burglary is carried out. It is irrelevant that the defendant had the item with him/her for some other purpose unconnected with the burglary offence.
Instant Arming
Ordinary items can, instantaneously, change into weapons of offence; it is the intention of the person to use an item in a particular way that allows this to take place. In R v Kelly (1993) 97 Cr App R 245, the defendant entered a building using a screwdriver to facilitate entry. When he was confronted, he prodded the person confronting him in the stomach with the screwdriver. At that moment, the screwdriver instantly became a weapon of offence and the defendant was later convicted of aggravated burglary.
The Theft Act 1968, s. 10 goes on to state:
(1)
. . . and for this purpose—
(a)
‘firearm’ includes an airgun or pistol, and ‘imitation firearm’ means anything which has the appearance of being a firearm, whether capable of being discharged or not, and
(b)
‘weapon of offence’ means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; and
(c)
‘explosive’ means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.
Weapon of Offence
This includes:
- items made for causing injury, e.g. a bayonet or a knuckleduster (see para. 3.5.1);
- items adapted for causing injury, e.g. a screwdriver that has been sharpened at the tip;p. 500
- items intended for causing injury, e.g. an ordinary cutlery knife. The cutlery knife is certainly inoffensive in everyday use but if the defendant intends to use it to injure, it will fall into this category;
- items made, adapted or intended to incapacitate a person, e.g. handcuffs, rope, CS spray and chloroform.
The defendant must not only know of the presence of the weapon but also that it is a weapon of offence (this element of the offence does not apply to weapons of offence per se (they are what they are) but only to items adapted or intended to cause injury/incapacitate).
Note that the defences of lawful authority or reasonable excuse in relation to the possession of an offensive weapon appear not to apply to the offence of aggravated burglary.
Imitation Firearm
This includes anything which has the appearance of being a firearm, whether capable of being discharged or not (but note that this will not include the defendant’s fingers pointed at someone under a coat to resemble a firearm (R v Bentham [2005] UKHL 18)).
Firearm
This does not relate to the definition under the Firearms Act 1968. Indeed, the term is not defined other than to include airguns and air pistols.
Explosive
This would cover explosives such as TNT and items such as grenades as they are both manufactured to produce a practical effect by explosion. It also covers an item intended by the person having it with him/her for such a purpose, potentially bringing home-made devices or substances into the equation. The issue in relation to fireworks has yet to be firmly resolved by the courts, although they may well be excluded from the definition as fireworks are, by and large, manufactured to produce a pyrotechnic rather than practical effect by explosion and have been described as ‘things that are made for amusement’ (Bliss v Lilley (1862) 32 LJMC 3).
