Burglary Flashcards
Burglary—Theft Act 1968, s. 9
- Triable on indictment if ‘ulterior offence’ is so triable, or if committed in dwelling and violence used; otherwise triable either way
- 14 years’ imprisonment if building/part of building is dwelling
- Otherwise 10 years’ imprisonment on indictment
- Six months’ imprisonment and/or a fine summarily
The Theft Act 1968, s. 9 states:
(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 . . .
(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, of inflicting on any person therein any grievous bodily harm and of doing unlawful damage to the building or anything therein.
Enters
The Theft Act 1968 does not define the term ‘entry’ and so we are left to resolve the meaning of this term by reference to case law and the decisions of the courts. The common law rule was that the insertion of any part of the body, however small, was sufficient to be considered an ‘entry’. So where D pushed in a window pane and the forepart of his finger was observed in the building, that was enough (R v Davis (1823) Russ & Ry 499). This approach was narrowed considerably in R v Collins [1973] QB 100, where it was said that entry needed to be ‘effective and substantial’. The ruling in Collins was rejected by the Court of Appeal in R v Brown [1985] Crim LR 212, where it was stated that the ‘substantial’ element was surplus to requirements and that entry need only be ‘effective’. Whether an entry was ‘effective’ or not was for the jury to decide. So the decision of the court in Brown appears to be the current accepted approach to defining the term; entry must therefore be ‘effective’.
An ‘effective’ entry does not mean that the defendant has to enter a building or part of a building to such a degree that the ulterior offence, which he/she is entering with the intention to commit (the theft, grievous bodily harm or criminal damage), can be committed (R v Ryan [1996] Crim LR 320). Nor does it mean that the defendant must get his/her whole body into the building. In Brown, the defendant had his feet on the ground outside the building with the upper half of his body inside the building as he searched for goods to steal; this was held to be an entry. In Ryan, the defendant, who had become trapped by his neck with only his head and right arm inside the window, was held to have ‘entered’ the building. In Brown, the Court of Appeal stated that it would be astounding if a smash-and-grab raider, who inserted his hand through a shop window to grab goods, was not considered to have ‘entered’ the building.
At common law, the insertion of an instrument would constitute entry as long as the instrument was inserted to enable the ulterior offence to take place, e.g. a hook inserted into premises to steal property or the muzzle of a gun pushed through a letterbox with a view to cause grievous bodily harm. Insertion of an instrument merely to facilitate entry, e.g. using a coat hanger to open a window lock, would not be entry. Although there is no recent authority on the issue, it is likely that this line of reasoning in relation to the use of instruments in burglary is still acceptable.
Entry must be deliberate and not accidental.
Ultimately, whether the defendant has entered a building or not will be a question of fact for the jury or magistrate(s).
Trespasser
To be guilty of the offence of burglary, the defendant must know or be reckless as to the fact that they are entering as a trespasser (i.e. they must know they are entering without a right by law or with express or implied permission to do so) or be reckless as to that fact. Sometimes a defendant may have general permission to enter a building or part of a building for a legitimate purpose; however, the true intention of the defendant when entering is not for that legitimate purpose but in order to steal or commit grievous bodily harm or to cause criminal damage. As these intentions invariably form no part of the permission to enter the building or part of it, any entry in such circumstances means that the defendant becomes a trespasser the moment he/she enters the building or part of the building. In such circumstances, the exceeding of the granted permission places the defendant in a position of being a trespasser from the outset.
Example
X has a key to Y’s home and has permission from Y to enter Y’s home at any time and sleep in one of the bedrooms. Intending to steal from Y’s home, X uses the key to get into Y’s house. This means that X has committed a burglary under s. 9(1)(a) at Y’s house. Y did not give X the keys to the house so that he could steal.
This example is very similar to the circumstances in R v Jones and Smith [1976] 1 WLR 672, where the defendant was convicted of burglary when he took two televisions from his father’s home. He had a key to the premises and was free to come and go as he liked but when he entered his father’s house (using the key) accompanied by a friend at 3 am and stole the television sets, he committed burglary as it was his intention to steal as such an intent voids the general permission to enter.
The Theft Act 1968, s. 9 states:
(4)
References in subsections (1) and (2) above to a building . . . which is a dwelling, 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 at times when he is.
Building
A building is generally considered to be a structure of a permanent nature (Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167), although a substantial portable structure with most of the attributes of a building can be a ‘building’ for the purposes of burglary. For example, in B & S v Leathley [1979] Crim LR 314 a portable container measuring 25 ft by 7 ft by 7 ft and weighing three tons, which had occupied the same position for three years and was connected to mains electricity and which was due to remain in the same position for the foreseeable future, was considered to be a building for the purposes of burglary. An unfinished house can be a building for the purposes of burglary (R v Manning (1871) LR 1 CCR 338), although at what precise point a pile of building materials becomes an ‘unfinished house’ and therefore a building or part of a building would be a question of fact for the jury to decide. Tents and marquees are considered to fall outside the term, even if the tent is someone’s home (the Criminal Law Revision Committee intended tents to be outside the protection of burglary).
The effect of s. 9(4) is to include inhabited vehicles and vessels (such as house boats or motor homes) within the term. A canal boat that is not inhabited is not a building as, whilst it may be capable of habitation, it is not being lived in.
Part of a Building
People may commit burglary when, although they are in one part of a building with legitimate access, they enter another part of it as a trespasser.
- A tenant of a block of flats has a key that provides access to a communal foyer of the block of flats. He uses the key to enter the foyer (entering a building and plainly not a trespasser at this stage). Instead of entering his own flat, he forces entry to a neighbour’s flat by breaking down the neighbour’s door that can be accessed via the communal foyer (moving from one part of a building to another in the process and certainly a trespasser at this stage).
The Court of Appeal decided that it is for the jury to decide whether an area physically marked out is sufficiently segregated to amount to ‘part of a building’. In R v Walkington [1979] 1 WLR 1169, the defendant walked behind a movable sales counter in a shop with the intention to steal and was found guilty of burglary as this was held to be ‘part of a building’. A ‘No Entry’ sign or a rope could mark off one part of a building from another.
Intentions at the Time of Entry
The intentions at the time of entry (not before or after) must be as follows:
- Stealing. This means an intention to commit theft under s. 1 (and ‘thief’ and ‘steal’ will be construed accordingly). It will not include abstracting electricity because electricity is not ‘property’ for the purposes of theft (Low v Blease [1975] Crim LR 513), neither will it include taking a conveyance (no intention to permanently deprive). The property which the defendant intends to steal must be in a building or part of a building.
- Inflicting grievous bodily harm. In proving an intention to commit grievous bodily harm under s. 9(1)(a), it is not necessary to prove that a wounding/grievous bodily harm offence was actually committed (Metropolitan Police Commissioner v Wilson [1984] AC 242). The offence in question in respect of a burglary under s. 9(1)(a) is of grievous bodily harm contrary to s. 18 of the Offences Against the Person Act 1861.
- Causing unlawful damage. This includes damage not only to the building but to anything in it (see chapter 3.10).
Conditional Intent
Provided the required intention can be proved, it is immaterial whether or not there is anything ‘worth stealing’ within the building (R v Walkington [1979] 1 WLR 1169). The same will be true if the person to whom the defendant intends to cause serious harm is not in the building or part of the building at the time (see also para. 1.3.4).
The Theft Act 1968, s. 9 states:
(1)
A person is guilty of burglary if—
. . .
(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.
Section 9(1)(b)
This type of burglary involves a defendant’s behaviour after entering a building or part of a building as a trespasser.
The defendant must have entered the building or part of a building as a trespasser; it is not enough that the defendant subsequently became a trespasser in that part of the building by exceeding a condition of entry (e.g. hiding in the public area of a shop during opening hours until the shop closed). However, where a person has entered a particular building (such as a shop) lawfully and without trespassing, if he/she later moves to another part of the building as a trespasser, this element of the offence will be made out.
Unlike s. 9(1)(a), there are only two further elements to the offence under s. 9(1)(b): the subsequent attempted theft of anything in the building or part of it, or the subsequent inflicting/attempted inflicting of grievous bodily harm to any person therein. The assault offences in question in respect of a burglary under s. 9(1)(b) are grievous bodily harm contrary to s. 18 or s. 20 of the Offences Against the Person Act 1861.
It has been suggested that if, having entered a building or part of a building as a trespasser, the defendant commits an offence of criminal damage, this will be an offence under s. 9(1)(b) of the Act as to damage or destroy something is also to steal it. This is not the case. If a person enters in such circumstances and causes criminal damage, there is little argument that such an activity would satisfy part of the offence of theft, i.e. appropriating property (see para. 3.1.5), but where is the ‘dishonesty’? In addition, this would clearly be an unwarranted extension of the burglary offence under s. 9(1)(b) of the Theft Act 1968. If Parliament wanted such activity to be caught by the legislation, it would have included the offence of criminal damage within the definition of burglary under s. 9(1)(b).
Example
D enters a public house near closing time with a friend who buys him a drink from the bar. D’s entry onto that part of the premises has been authorised by the implied licence extended to members of the adult public by the publican and therefore D is not a trespasser. D then goes into the lavatories to use them as such. At this point, he has entered another part of a building but again his entry is made under the implied licence to customers wishing to use the lavatories. While inside the lavatory area, D decides to hide until after closing time in order to avoid buying his friend a drink.
Once the publican has shut the pub for the night, D becomes a trespasser in the lavatory. This is because he is not supposed to be there, i.e. he has no express or implied permission or lawful right to be in the lavatory after the pub has closed. While D is a trespasser at this point in time, if he went on to steal from the lavatory he would not commit burglary because he did not enter the lavatory as a trespasser, he became one at a later stage by exceeding a condition of entry. It is essential, for an offence of burglary to occur, that the defendant has entered the building or part of a building as a trespasser. D then leaves the lavatory and walks into the lounge area. Now D has entered a part of a building as a trespasser. Having no particular intention at this point, however, D has still not committed an offence of burglary.
On seeing the gaming machines in the lounge, D decides to break into them and steal the money inside. At this point, although he has two of the required intentions for s. 9(1)(a) (an intention to steal and an intention to cause unlawful damage), those intentions were formed after his entry into the lounge. Therefore, D has not committed burglary under s. 9(1)(a). Because he has not stolen/attempted to steal or inflicted/attempted to inflict grievous bodily harm on any person therein, D has not committed burglary under s. 9(1)(b) either.
D then breaks open a gaming machine in order to steal the cash contents. At this point, he commits burglary under s. 9(1)(b). This is because, having entered a part of a building (the lounge) as a trespasser (because the pub is closed and D knows that to be the case), he attempts to steal. If he simply caused criminal damage to the machine without an intention of stealing the contents, D would not commit this offence because causing unlawful damage is only relevant to the offence under s. 9(1)(a).
