Burglary and Blackmail - The Law - Herring

Question 1

Burglary - overview

Answer 1

> S. 9 of TA 1968 defines the offence of burglary.
It is important to appreciate that there are 2 kinds of burglary:
1. S. 9(1)(a): entering a building or part of a building as a trespasser with an intent to commit one of the following in the building:
a) theft
b) criminal damage, or
c) infliction of GBH.
2. S. 9(1)(b): having entered a building or part of a building as a trespasser, committing either:
a)theft or attempted theft; or
b) infliction or attempted infliction of GBH.
Difference between two is that s. 9(1)(a) is committed when D enters building whereas s. 9(1)(b) is committed when, once inside building, D commits one of the listed crimes.
Possible to be guilty of both forms of burglary.
Max penalty for domestic premises = 14yrs & non-domestic = 10yrs.

Question 2

Burglary - broken down

Answer 2

1. Building or part of building
2. Entry
3. Trespasser
4. MR for burglary

Question 3

Burglary - broken down - building or part of building

Answer 3

> Building must involve a permanent structure.
S. 9(4) states that an inhabited vehicle is included within the definition of a building.
If D enters a building with owner’s consent (so isn’t a trespasser) then enters part of building he isn’t permitted to enter with intent to steal, can be guilty of burglary.
To constitute part of building there must be some kind of physical mark or barrier, e.g. no-entry sign or another room.
If dwelling then higher sentences of 14yrs.
Hudson v CPS, clearest guidance as to dwelling the court could offer was that the more habitable the building, the more likely it would be regarded as a building.

Question 4

Burglary - broken down - entry

Answer 4

> ‘Enter’ doesn’t mean whole body needs to enter building.
CA in Brown [1985] held there must be an ‘effective entry’. D was held to have made an ‘effective entry’ by sticking his top half through a shop window while investigating the shop. This rejected test in Collins 1973 where there had to be ‘an effective and substantial entry’.
CA in Ryan rejected argument that test should be whether there was a sufficient amount of D’s body inside to enable them to carry out one of the crimes.
Jury decides.
Use of object to enter property sufficient for burglary and so too is if D trained child or dog to enter and steal.

Question 5

Burglary - broken down - trespasser - overview

Answer 5

> Must be a trespasser and be aware that they are a trespasser.
Most common form of legal authorisation is to have consent of owner of land or owner’s family.
R v Collins key issue = had owner’s daughter invited D into house before he had entered?

Question 6

Burglary - broken down - trespasser - R v Collins

Answer 6

> R v Collins [1973].
D was drunk and climbed up a ladder to V’s bedroom window to seek sex.
V, who was drunk as well, beckoned him in as she thought he was her boyfriend.
V was convicted with burglary with intent to commit rape under s9 Theft Act 1968.
D appealed on the basis that the jury was not directed to consider whether D entered as a trespasser knowing he had no permission or was reckless as to that fact.
Was the entry intentional or reckless?
Lord Justice Edmund Davies:
-“According to the leaned editors of Archbold: ‘Any intentional, reckless or negligent entry into a building will, it would appear, constitute a trespass if the building is in the possession of another person who does not consent to the entry. Nor will it make any difference that the entry was the result of a reasonable mistake on the part of the defendant, so far as trespass is concerned.”
-“There cannot be a conviction for entering premises “as a trespasser” within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent.”
-The concept of trespass is a civil law concept in tort that did not involve a mental element, this case added a mental element to trespass within the meaning of s9.
Burglary requires the defendant to know or be reckless as to whether he was entering without permission.
Appeal allowed. Conviction quashed.

Question 7

Burglary - broken down - trespasser - difficulties - list

Answer 7

1. Withdrawal of permission.
2. Acting in excess of permission.
3. Consent to enter based on a mistake.
4. MR of a trespasser.

Question 8

Burglary - broken down - trespasser - difficulties - withdrawal of permission

Answer 8

> D trespasser if after V withdraws permission, fails to leave the premises within a reasonable length of time.
Have to enter a building as a burglar to be guilty of burglary so unless enters another ‘part’ of building with intent to steal, there cannot be burglary if D stole on way out.

Question 9

Burglary - broken down - trespasser - difficulties - acting in excess of permission

Answer 9

> If D has permission to enter property for particular reason but acts in excess of this permission then they are trespassing and so can be convicted of burglary.
Established in Jones and Smith [1975].

Question 10

Burglary - broken down - trespasser - difficulties - consent to enter based on a mistake

Answer 10

> What if D is given consent to enter a building on the basis of a fundamental mistake?
Presumed criminal courts adopt the civil law position that the consent is invalid if it follows a fundamental mistake (e.g. individual’s identity), but if it isn’t fundamental (e.g. irrelevant matter) then remains valid.
However, as seen in Collins, D must know he is a trespasser otherwise lacks MR.

Question 11

Burglary - broken down - trespasser - difficulties - MR of a trespasser

Answer 11

> D must know they are trespassers or be reckless as emphasised by Edmund Davies LJ in Collins.
Needn’t understand the law of trespass, it is enough if Ds are aware of facts that render them a trespasser.
If D believes (even if unreasonably) that they have permission to enter then they aren’t guilty.

Question 12

Burglary - broken down - trespasser - R v Jones and Smith - facts & judgment

Answer 12

> R v Jones; R v Smith [1975]:
-Ds entered Smith’s father’s house & stole 2 television sets.
-Ds appealed against charge of burglary on ground Smith hadn’t entered his father’s house as a trespasser.
Lord Justice James:
-“A person is a trespasser for the purpose of s. 9(1)(b) of TA 1968, if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless as to whether he is entering in excess of the permission that has been given to him to enter.”
-“Provided the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission, then that is sufficient for the jury to decide that he is in fact a trespasser.”
-“The jury were, by their verdict satisfied of that.”
-Appeals dismissed.

Question 13

Burglary - broken down - trespasser - R v Jones and Smith - criticism

Answer 13

> Controversial decision as means that whether a person is a trespasser depends on their mental state.
I.e. at point of entry, D intended to commit a crime.
Taken to its logical conclusion, the Jones and Smith rule would been every shoplifter was a burglar as knows acting in excess of the permission of shop owner but in Walkington [1979], that Jones and Smith rule won’t be taken that far.
In Walkington, CA required proof that D, having entered the shop intending to steal, entered a separate part of the shop he wasn’t permitted to go in.

Question 14

Burglary - broken down - MR for burglary

Answer 14

> For s. 9(1)(a), must be shown D had an intention to commit one of listed offences at time D entered the building.
-NB: if changed mind once inside than the offence is still committed. Conversely, if decides once inside to commit theft but didn’t on entry then no burglary.
For s. 9(1)(b), MR for burglary is same as MR for stealing.
-Less clear if where crime is GBH as CA in Wilson & Jenkins suggest doesn’t require proof of any MR, but many commentators say that is incorrect and at least Cunningham recklessness as to the infliction of GBH is required.
Conditional intent, where D enters property to see if anything is worth stealing, amounts to an intent to steal for purposes of burglary. (A-G’s References (Nos 1 and 2 of 1979).

Question 15

Aggravated burglary

Answer 15

> S. 10 of TA 1968.
Aggravated burglary involves a D who has with them at time of burglary a firearm, imitation firearm, a weapon of offence, or an explosive.
Must be in possession of weapon at time offence of burglary is committed, e.g. on entry for s. 9(1)(a) and at time of committing further offence for s. 9(1)(b).
Definition of ‘weapon of offence’ is wide.
Russell (1985); Kelly [1993]: D must be shown to have been aware that had weapon with them at time of burglary.
Stones (1989); Kelly [1993]: No need to show D intended to use in that particular burglary, as long as there was intention to use the item against someone on some occasion.

Question 16

Trespass with intent to commit a sexual offence

Answer 16

> S. 63 of SOA 2003:
1. A person commits an offence if -
a) he is a trespasser on any premises,
b) he intends to commit a relevant sexual offence on the premises, and
c) he knows that, or is reckless as to whether, he is a trespasser.
Notably offence refers to a structure (rather than building).

Question 17

Blackmail - definition

Answer 17

> AR =
1. D makes an unwarranted demand;
2. with menaces.
MR =
1. D must act with a view to gain for himself or another or with intent to cause loss to another;
2. D either;
a) doesn’t believe that he has reasonable ground for making the demand; or
b) doesn’t believe that the use of menaces is a proper means of reinforcing the demand.
Use of threats to acquire property or cause a loss to V.
Offence of blackmail is defined in s. 21 of Theft Act 1968.

Question 18

Blackmail - key elements - list

Answer 18

1. A demand
2. With a view to a gain or loss
3. Menaces
4. The demand must be unwarranted

Question 19

Blackmail - key elements - a demand

Answer 19

> Oral or written.
Normally explicit but can be implicit (Collister & Warhurst 1955).
Demand given ordinary meaning.
D only needs to issue demand, it doesn’t need to be heard/received by V.
Demand is letter put in post box then committed at time of posting.

Question 20

Blackmail - key elements - with a view to a gain or loss

Answer 20

> Financial gain/loss.
Clarified in s. 34(2)(a) of TA 1968:
“gain and loss are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent”.
In Bevans (1987), D demanded doctor give him morphine otherwise he would shoot him and D was convicted of blackmail as morphine was of some monetary value.
Dispute over whether being paid money legally due to you is a ‘gain. Such authority there is suggests that is is (Parkes [1973]).

Question 21

Blackmail - key elements - menaces

Answer 21

> CA in Lawrence and Pomroy (1973) said jury need to be told only that ‘menace’ is to have its normal meaning and the judge needn’t explain further.
Lord Wright in Thorne v Motor Trade Association [1937]: jury likely to decide that the menace will involve a threat of ‘any action detrimental to or unpleasant to the person addressed.’
Unpleasant can’t be of minor nature.
Sellers LJ in Clear [1968] held that to amount to menaces the threats must be “of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand.”
‘Menacing pressures’ sufficient in Lambert [2009].
Hardest cases on menaces are those where V responds to D’s words in an unusual way.

Question 22

Blackmail - key elements - the demand must be unwarranted

Answer 22

> 2 stages:
1. Jury must decide whether or not they think the demand is unwarranted.
2. If decide it is unwarranted then s. 21(1) explains that D’s demand will be unwarranted unless it is made in the belief that:
1. there are reasonable grounds for making it; and
2. that the use of the menaces is a proper means of enforcing the demand.
If D is aware that he is threatening to commit a crime, he can’t claim that the demand is reasonable.
Bribery Act 2010 creates an offence of bribery which involves giving someone an inducement to encourage someone to perform an official function improperly.
Like blackmail this involves seeking to manipulate another person to make a gain.