Burglary

Question 1

What are the 2 forms of burglary?

Answer 1

s9(1)(a) and s9(1)(b)

Question 2

What is the law on s9(1)(a) burglary?

Answer 2

Theft Act 1968
(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

Question 3

What is the sentence?

Answer 3

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

Question 4

What are the points to prove?

Answer 4

Enters
Building or part of a building
Trespasser
Intent
Steal, commit GBH, commit unlawful damage

Question 5

What does the term entry mean?

Answer 5

The Theft Act 1968 does not define the term ‘entry’
Common law rule- the insertion of any part of the body, however small, was sufficient to be considered an ‘entry’
Whether D has entered a building or not will be question of fact for the jury or magistrate(s)

Question 6

Accepted case on the term entry

Answer 6

R v Brown [1985]
COA ruled that the entry needs to only be ‘effective’ and not ‘substantial’, as previously suggested in R v Collins [1973]

Question 7

What are the facts of R v Brown?

Answer 7

D had his feet on the ground outside the building as he searched for goods to steal; this was held to be an entry
COA 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

Question 8

What does an effective entry mean?

Answer 8

An ‘effective’ entry does not mean that D 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]). Nor does it mean D must get his/her whole body into the building

Question 9

What are the facts in R v Ryan?

Answer 9

D, who had become trapped by his neck with only his head and right arm inside the window, was held to have ‘entered’ the building

Question 10

Does the insertion of an instrument constitute entry?

Answer 10

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 GBH. 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

Question 11

Can entry be accidental?

Answer 11

Entry must be deliberate and not accidental

Question 12

What if someone uses an innocent agent (eg: child or trained animal) to gain entry and commit burglary?

Answer 12

The person giving the order would still be guilty of burglary, if they did not themselves enter the property.

Question 13

What does trespasser mean?

Answer 13

D must know or be reckless as to the fact 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

Question 14

What if D enters for a legitimate purpose?

Answer 14

Sometimes D may have general permission to enter a building or part of a building for a legitimate purpose; however, the true intention of D when entering is not for that legitimate purpose but in order to steal or commit GBH 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 D becomes a trespasser the moment he/she enters the building or part of the building.

Question 15

What happens if D exceeds the granted permission?

Answer 15

The exceeding of the granted permission places the defendant in a position of being a trespasser from the outset

Question 16

Case- trespasser

Answer 16

R v Jones and Smith [1976], where D was convicted of burglary when he took 2 TV’s 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 3am 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

Question 17

What is meant by building? Case?

Answer 17

A building is generally considered to be a structure of a permanent nature with walls and a roof. (Gould [1986])
Eg: houses, shops etc… but also includes out houses, sheds etc…

Question 18

What about structures that have attributes of a building? Case?

Answer 18

Substantial portable structures with most of the attributes of a building can be a building for the purposes of burglary
B & S v Leathley [1979]- portable container measuring 25ft by 7ft by 7ft 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

Question 19

Is an unfinished house a building? Case?

Answer 19

An unfinished house can be a building for the purposes of burglary (R v Manning (1871), 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

Question 20

Are tents and marquees buildings?

Answer 20

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)

Question 21

Are inhabited vehicles and vessels buildings?

Answer 21

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.
Eg: vessels will be buildings when they are someone’s permanent home. If it is only used as a holiday home for example then it will be a building whilst it is being used for those periods.
Tents are not buildings are at all!!

Question 22

What is meant by part of a building?

Answer 22

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
Eg: tenant in a block of flats with access to communal foyer and their own room
COA decided it is for the jury to decide whether an area physically marked out is sufficiently segregated to amount to ‘part of a building’

Question 23

Case- part of a building

Answer 23

R v Walkington [1979]- D 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

Question 24

What must the intentions be at the time of entry?

Answer 24

1. Stealing- Intention to commit theft under s1. Doesn’t include abstracting electricity, as it is not property under s1 (Low v Blease [1975]), neither will it include taking a conveyance (no intention to permanently deprive). The property which D intends to steal must be in a building or part of a building
2. Inflicting GBH (s18)- Not necessary to prove a wounding/GBH offence was actually committed (Met Police Commissioner v Wilson [1984]).
3. Causing unlawful damage- Includes damage to the building and anything in it

Question 25

What is conditional intent?

Answer 25

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]). The same will be true if the person to whom D intends to cause serious harm is not in the building or part of the building at the time

Question 26

Does D have to ACTUALLY steal, inflict GBH or cause damage?

Answer 26

NO! Just has to intention to do one of the 3 offences.

Question 27

What is a s9(1)(b) burglary?

Answer 27

Theft Act 1968
(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

Question 28

What is the sentence for a 9(1)(b)?

Answer 28

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 a dwelling
Otherwise 10 years’ imprisonment on indictment
Twelve months’ imprisonment and/or a fine summarily

Question 29

Does s9(1)(b) include criminal damage?

Answer 29

NO! The offence would just be criminal damage- it is stealing or inflicting GBH or attempting to do so.

Question 30

What is the difference between (a) and (b) in intention and entry?

Answer 30

(a)- D had the intention prior to entering and only needs the intention to commit one of the three offences. Does not include an attempt. D can become a trespass after entry.
(b)- D developed the intention having already made an entry and then successfully steals or inflicts GBH OR attempts to. D must be a trespasser upon entry or become a trespasser when he enters another part of the building. It does not include damage!

Question 31

What is a s9(1)(b) burglary?

Answer 31

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.

Question 32

What is the trespasser element of the offence?

Answer 32

D must have entered the building or part of a building as a trespasser; it is not enough that D 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

Question 33

How do people gain permission? What are the two types?

Answer 33

Express permission- given specifically eg: words or in writing
Implied permission- suggested but not directly expressed

Question 34

What is the rule of door?

Answer 34

Every time the suspect enters through a different door/part of a building, stop and ask- what is his intention?
1. Ask yourself what is the intention of D BEFORE he crosses that door threshold to another part of the building
2. If D has the necessary intention it is an (a), if he DOES NOT then (a) disappears and the only offence available is (b)

Question 35

Example for rule of door

Answer 35

Eg: I go into pub for a drink. Not a trespasser (implied permission).
If I steal something from the pub, I am a thief not a burglar.
Just before closing, I go into the toilet. I am so drunk and fall asleep. I wake up at 2am confused. I go back to the bar. As I move from the toilet to the bar area, I am a trespasser.
I had permission to be here until closing, but not have after hours permission.
My intention is to get home- not a burglar.
As I go past the bar, I have the intention to grab a drink, but do not do so. An intention to steal a drink, but I did not have this intention when I entered.
I go behind the bar (trespasser) and enter another part of the building. I have the intention to pour myself a whiskey. This is s9(1)(a)- entered part of the building as a trespasser with the intention to steal!
I then pour myself a whiskey- this is a 9(1)(b).

Question 36

Summary of (a) and (b)

Answer 36

(a)- must have intention to commit one of the three offences at the time of entry as a trespasser.
(b)- covers cases where there was no initial intention to commit one of the three at the time of entry, but having entered as a trespasser he then commits one of the three or attempts to commit one of the three