Chapter 10 - Burglary and Aggravated Burglary

Question 1

What is burglary?

Answer 1

Burglary is an offense that combines elements of offenses against property and against the person. It is more than just theft and must involve entering a building belonging to someone other than the defendant.

Question 2

What is the maximum sentence for burglary?

Answer 2

Burglary is an either-way offense. If convicted in the Crown Court, the maximum sentence is 10 years for burglary of commercial premises and 14 years for burglary of domestic premises.

Question 3

Why is the sentence for burglary of a dwelling higher than the sentence for burglary of a commercial premise?

Answer 3

The higher sentence for burglary of a dwelling recognizes that being a victim of dwelling burglary is often a frightening and upsetting experience and reflects public concern about this common offense.

Question 4

What are the two types of burglary under Section 9 of the Theft Act 1968?

Answer 4

Section 9(1)(a) focuses on the defendant’s intent when entering a building and can be called “burglary with intent.” Section 9(1)(b) rests on the defendant’s actions once inside the building and is simply called “burglary.”

Question 5

What elements are similar in both types of burglary?

Answer 5

Both s 9(1)(a) and s 9(1)(b) burglary offenses require the defendant to enter a building or part of a building as a trespasser. They must also know or be reckless in knowing that they are a trespasser.

Question 6

What are the key differences between s 9(1)(a) and s 9(1)(b) burglary?

Answer 6

Section 9(1)(a) burglary requires that the defendant intends to commit theft, inflict grievous bodily harm, or cause criminal damage. Section 9(1)(b) burglary requires the defendant to commit or attempt theft or grievous bodily harm.

Question 7

What does “entry” mean in the context of burglary?

Answer 7

“Entry” is a common word but its meaning in the legal context has been considered in a number of court cases. The courts have found that the defendant does not need to enter the building entirely and need only make an “effective” entry.

Question 8

What happened in the case of R v Collins?

Answer 8

In R v Collins, the defendant climbed up a ladder and was invited in by the victim who thought the defendant was her boyfriend. It was determined that if the defendant was outside the building when invited in, then he was innocent of burglary. But if he had entered the building with any part of his anatomy before being invited in, he was guilty. The Court of Appeal held that the jury must be satisfied that the defendant made an “effective and substantial” entry into the building.

Question 9

What happened in the case of R v Brown?

Answer 9

In R v Brown, the defendant leaned into a shop window to steal items and was convicted of burglary. The Court of Appeal upheld his conviction, confirming that there must be an “effective” entry for the purpose of burglary and it was up to the jury to decide whether there had been such an entry.

Question 10

What happened in the case of R v Ryan?

Answer 10

In R v Ryan, the defendant was found stuck with his head and arm inside a window and was convicted of burglary. The Court of Appeal upheld his conviction, finding that entry of some part of the defendant’s body into the property could amount to an “effective” entry and that being unable to commit a crime was irrelevant.

Question 11

If a defendant uses an innocent party to enter a building for them, are they guilty of burglary?

Answer 11

There is no authority on this point. The jury must determine whether the defendant made an entry and using an innocent party to enter, such as a child, may be seen as an instrument inserted into the property to facilitate entry.

Question 12

If a defendant uses an instrument to gain entry to a building, is that considered burglary?

Answer 12

There is no authority on this point, but the courts held that under old law, the insertion of an instrument into a building was an entry if it was used to commit an offense (such as theft). It was not considered entry if the instrument was only used to gain entry to the property.

Question 13

What constitutes a “building” in burglary offenses?

Answer 13

Case law suggests that a building must have some permanence, including houses, factories, shops, or sheds. Section 9(4) of the Theft Act 1968 states that the term also includes inhabited vehicles and vessels, whether or not the inhabitant is there at the time.

Question 14

Give some examples of “buildings” in burglary offenses.

Answer 14

Houses, factories, sheds, garages, greenhouses, shops, houseboats, mobile homes, and caravans are all examples of buildings. Tents and marquees are not considered buildings as they lack permanence.

Question 15

Does a camper van qualify as a “building?”

Answer 15

Whether a camper van falls within the definition of a “building” depends on whether the van is inhabited. If it is a permanent home to someone or is being used as a holiday home at the time of the burglary, it will qualify as a building.

Question 16

What does “part of a building” mean in the context of burglary?

Answer 16

It means that a defendant can be guilty of burglary even if they entered a building lawfully but then moved to another part of the building where they did not have permission to go.

Question 17

Give an example of “part of a building” in burglary offenses.

Answer 17

A defendant who is lawfully in an apartment as a guest but then goes into another apartment through an open door would be considered to have entered “part of a building” without permission.

Question 18

What happened in the case of R v Walkington?

Answer 18

In R v Walkington, the defendant went behind a three-sided counter in a shop to get to the till. The court held that the till area was a separate part of the building, which the defendant entered as a trespasser.

Question 19

What constitutes a “trespasser?”

Answer 19

In burglary, trespass requires proof that the defendant entered without consent or permission and that they knew or were reckless in knowing this. The defendant’s state of mind on entry is important.

Question 20

Give an example of a trespasser.

Answer 20

A defendant who is invited into a friend’s house for coffee but is told to leave after an argument, yet still goes upstairs to use the toilet, is considered a trespasser because they exceeded the implied license.

Question 21

Is a defendant who entered a building using fraud considered a trespasser?

Answer 21

Although there is no direct authority on this point under the Theft Act 1968, under old law the courts held that permission to enter obtained by fraud is not a true permission.

Question 22

Give some examples of a defendant who entered a building using fraud.

Answer 22

A defendant who persuades a neighbor to let them into their former husband’s house with a spare key after being served a court order banning them from the home. Another example is a defendant who tells an elderly lady that they are a police officer in order to gain entry into her home.

Question 23

If a person is asked to leave a property, are they allowed to leave?

Answer 23

They have an implied right to leave by the most direct route.

Question 24

What happened in the case of R v Jones and Smith?

Answer 24

In this case, the defendant was given permission to enter his father’s house but he intended to steal. The Court of Appeal concluded that a defendant could be a trespasser if they entered for an unlawful purpose when given permission to enter for a lawful purpose.

Question 25

Give an example of a defendant who entered for an unlawful purpose.

Answer 25

A defendant who goes to a department store planning to steal some perfume but is invited into the store by the doorman.

Question 26

What are the actus reus and mens rea for burglary?

Answer 26

The actus reus for both s 9(1)(a) and s 9(1)(b) burglary is entering a building or part of a building as a trespasser. The mens rea for both is knowledge or recklessness as to being a trespasser. But in addition, the mens rea for s 9(1)(a) is intent to commit theft, grievous bodily harm, or criminal damage. And the mens rea for s 9(1)(b) is having the mens rea for theft, attempted theft, grievous bodily harm, or attempted grievous bodily harm.

Question 27

How is trespassing different in civil law and criminal law?

Answer 27

In civil law, just showing that someone entered a building without permission is enough to establish that they are a trespasser. But under criminal law, the prosecution must also prove that the defendant had a particular state of mind in relation to trespassing. Both the actus reus and mens rea must be proved.

Question 28

When must the defendant be aware that they are trespassing?

Answer 28

The defendant must be aware that they are trespassing at the time of entry into the building, according to the Court of Appeal in R v Collins.

Question 29

What are the additional mens rea requirements for s 9(1)(a) burglary?

Answer 29

The prosecution must show that at the time of entry, the defendant intended to steal, cause criminal damage, or inflict grievous bodily harm. If this can’t be proven, the defendant may not be convicted under s 9(1)(a) burglary.

Question 30

What is conditional intent?

Answer 30

Conditional intent occurs when the defendant intends to commit an offense only if certain conditions are met.

Question 31

What happened in the Attorney-General’s Reference (Nos 1 and 2 of 1979) case?

Answer 31

The Court of Appeal confirmed that a conditional intent to steal was enough to establish mens rea in a charge of burglary.

Question 32

What are the additional mens rea requirements for s 9(1)(b) burglary?

Answer 32

In contrast to s 9(1)(a), the defendant can form the mens rea for the offense of theft or causing grievous bodily harm after they have entered the building. The prosecution must prove that once inside, the defendant either stole or attempted to steal or inflict or attempted to inflict grievous bodily harm.

Question 33

Can a defendant be guilty of both s 9(1)(a) and s 9(1)(b) burglary?

Answer 33

It is quite common for the defendant to be guilty of both types of burglary. For example, they could be guilty of s 9(1)(a) burglary if they entered as a trespasser intending to steal. They would also be guilty of s 9(1)(b) if, once inside, they stole something.

Question 34

What is aggravated burglary?

Answer 34

Aggravated burglary occurs when a defendant commits burglary while in possession of a weapon at the time of the burglary. It is a separate offense from “basic” burglary.

Question 35

What is the maximum sentence for aggravated burglary?

Answer 35

Aggravated burglary is an indictable offense, meaning it can only be tried in the Crown Court. The maximum sentence is life imprisonment.

Question 36

What constitutes a “weapon” in aggravated burglary?

Answer 36

Section 10(1) of the Theft Act 1968 lists items that are considered “weapons” in aggravated burglary. These include firearms, imitation firearms, weapons of offense, and explosives. A “weapon of offense” is defined as any article made or adapted for causing injury to or incapacitating a person.

Question 37

Does the defendant need to intend to use the weapon during the burglary?

Answer 37

The defendant only needs to know that they have the weapon with them. In R v Stones, the defendant was convicted of aggravated burglary even though he claimed the knife in his possession was for self-defense.

Question 38

What does “at the time” mean in the context of aggravated burglary?

Answer 38

“At the time” refers to when the defendant had the weapon in their possession. For s 9(1)(a) burglary, it is at the time of entry. But for s 9(1)(b) burglary, it is when the ulterior offense (theft, grievous bodily harm, or attempts) is committed.

Question 39

Give examples of “at the time.”

Answer 39

In R v Francis, the defendant entered a home with sticks but discarded them before committing theft. He was not guilty of aggravated burglary because he didn’t have the weapons at the time of the theft. But in R v O’Leary, the defendant took a knife from the kitchen of the home he entered before confronting the occupants. He was found guilty of aggravated burglary because he had the weapon with him at the time he committed the theft.

Question 40

When is aggravated burglary the relevant offense?

Answer 40

If the defendant is armed with a weapon, aggravated burglary is the likely charge. But the prosecution must first establish that there was a burglary under s 9.

Question 41

What is the difference between the intention to use an object to gain entry and the intention to use an object to cause harm?

Answer 41

In Activity, Maurice planned to use a hammer to break into the home but left a knife in the bushes. He was not guilty of aggravated burglary in relation to the hammer because it was not a “weapon of offense.” However, he was guilty of aggravated burglary for the child’s toy pistol found in his pocket because it was considered an “imitation firearm.”