Criminal Law - Burglary (7) Flashcards
What is burglary?
Burglary: Burglary comprises two either-way offences (s9 TA 1968). There is also an aggravated version of the offence.
(1) s9(1)(a): Offence committed upon entry.
(2) s9(1)(b): Offence committed after entry.
What is a s9(1)(a) Burglary?
s9(1)(a) Burglary: Entering into a building or part of it with intent to either: a) commit theft in the building or the part of it entered as trespasser; b) inflict GBH in the building or the part of it entered as trespasser; or c) cause criminal damage in the building or any part of it.
(1) Actus Reus: Entering a building or part of a building as a trespasser.
(2) Mens Rea: Knowledge or recklessness to trespass with intent to commit the relevant offence in the building or the part of it entered as trespasser.
Entering (AR)
Entering: ‘Entering’ is generally given its ordinary dictionary definition.
(1) Partial Entry: Partial entry, such as merely a hand, can amount to entry, but is decided by the jury (Brown; Ryan).
(2) Instruments: Insertion of instruments into a building was entry historically, so may still be.
(3) Use of Children: Use of children to enter a property may amount to entry, but the defendant will typically instead be charged as a principal offender (‘Doctrine of Innocent Agency’).
Building or Part of a Building (AR)
Building or Part of Building: Buildings are generally ‘structures of permanence’.
(1) Scope: Buildings may be physical premises, as well as vehicles and vessels if inhabited at the time of entry (s9(4)).
Habitation: This means the vehicle or vessel is used as a domicile, though the occupier need not be physically present at the time of offence.
(2) Part of Building: This is entry into a part of a building the defendant has no permission to enter, such as behind a till or an adjacent flat to their own (R v Walkington).
As a Trespasser (AR)
As a Trespasser: Entering without permission of the owner, either knowingly or recklessly (R v Collins).
(1) Consent by Fraud: Obtaining permission to enter by fraud is trespass (R v Boyle).
(2) Exceeding Permissions: Exceeding the permissions of entry can amount to trespass (R v Jones and Smith).
Requirement: Entering with permission and then deciding to commit the relevant offence will not amount to s9(1)(a) burglary (Laing).
Knowledge or Recklessness to Trespass (MR)
Knowledge or Recklessness to Trespass: Defendant entered knowing or reckless to the fact they did not have permission to do so.
(1) Carelessness: Mere carelessness to the fact does not suffice (Collins).
(2) Test: Defendant must have knowledge or recklessness to the facts that make them a trespasser. They need not know they are a trespasser in law.
Intention to Commit Offence (MR)
Intention to Commit Offence: At time of entry, the Defendant must have intended to commit theft, grievous bodily harm, or criminal damage.
(1) Intention: This must be the defendant’s aim, desire or purpose (R v Moloney).
Conditional Intent: Intent which relies on certain conditions being met is still intent (AG Reference No 1 & 2).
(2) Theft: Intention to dishonestly and permanently deprive (s1 TA).
(3) GBH: Intention to cause ‘really serious harm’ (s18 or s20 OAPA).
(4) Criminal Damage: Intention to damage or destroy property belonging to another (s1(1) CDA).
In Relevant Part of Building
In Relevant Part of Building: The defendant must have intended to commit the crime in the requisite part of the building.
(1) Whole Building: If entry into the entire building constituted trespass, then the defendant need merely have intended to commit the offence in that building.
(2) Theft: The defendant must have intended to commit theft in the part of the building entered as trespasser.
(3) GBH: The defendant must have intended to commit GBH in the part of the building entered as trespasser.
(4) Criminal Damage: The defendant must have intended to commit criminal damage in any part of the building, regardless of where he entered.
What is a s9(1)(b) Burglary?
s9(1)(a) Burglary: Upon entry into a building or part of it as trespasser, the defendant either: a) commits or attempts to commit theft in the building or the part of it entered as trespasser; b) inflicts or attempts to inflict GBH in the building or the part of it entered as trespasser.
(1) Actus Reus: Having entered as a trespasser, stealing or attempting to steal, or committing or attempting to commit GBH.
(2) Mens Rea: Knowledge or recklessness to trespass, with the mens rea of the requisite offence.
Entering (AR)
Entering: ‘Entering’ is generally given its ordinary dictionary definition.
(1) Partial Entry: Partial entry, such as merely a hand, can amount to entry, but is decided by the jury (Brown; Ryan).
(2) Instruments: Insertion of instruments into a building was entry historically, so may still be.
(3) Use of Children: Use of children to enter a property may amount to entry, but the defendant will typically instead be charged as a principal offender (‘Doctrine of Innocent Agency’).
Building or Part of a Building (AR)
Building or Part of Building: Buildings are generally ‘structures of permanence’.
(1) Scope: Buildings may be physical premises, as well as vehicles and vessels if inhabited at the time of entry (s9(4)).
Habitation: This means the vehicle or vessel is used as a domicile, though the occupier need not be physically present at the time of offence.
(2) Part of Building: This is entry into a part of a building the defendant has no permission to enter, such as behind a till or an adjacent flat to their own (R v Walkington).
As a Trespasser (AR)
As a Trespasser: Entering without permission of the owner, either knowingly or recklessly (R v Collins).
(1) Consent by Fraud: Obtaining permission to enter by fraud is trespass (R v Boyle).
(2) Exceeding Permissions: Exceeding the permissions of entry can amount to trespass (R v Jones and Smith).
Requirement: Entering with permission and then deciding to commit the relevant offence will not amount to s9(1)(a) burglary (Laing).
Theft (AR)
Theft: Appropriation of property belonging to another (s1 TA).
(1) Time Frame: Theft occurs upon appropriation, not upon leaving the premises.
(2) Attempted: Attempted theft is embarking on a more than preparatory action in respect of the offence.
GBH (AR)
GBH: Causing really serious harm of another (s18 or s20 OAPA).
(1) Wounding: Wounding is insufficient, unless also really serious.
(2) Attempted: Attempted GBH is embarking on a more than preparatory action in respect of the offence.
Knowledge or Recklessness to Trespass (MR)
Knowledge or Recklessness to Trespass: Defendant entered knowing or reckless to the fact they did not have permission to do so.
(1) Carelessness: Mere carelessness to the fact does not suffice (Collins).
(2) Test: Defendant must have knowledge or recklessness to the facts that make them a trespasser. They need not know they are a trespasser in law.
Theft (MR)
Theft: Dishonesty with intention permanently to deprive (s1 TA).
GBH (MR)
GBH 1: Intention to cause grievous bodily harm.
GBH 2: Intention to resist lawful apprehension and maliciousness to causing actual bodily harm.
What is aggravated burglary?
Aggravated Burglary: To commit an offence of burglary, and at the time have with them any firearm, imitation firearm, weapon of offence, or explosive (s10(1) TA 1968).
Actus Reus
Actus Reus: The AR of either burglary offence, and the possession of a relevant weapon.
(1) Burglary: See burglary.
(2) Weapon: Weapons may include:
Firearms: Guns, air guns, air pistols, imitation firearms (whether capable of discharge or not).
Weapons of Offence: Any article made or adapted for causing injury or incapacitating a person, or intended for such use by the defendant (such as bottles, bricks, rope).
Explosives: Standard dictionary definition.
(3) At Time: The weapon must be in the possession ‘at the time’ the relevant burglary offence is committed (R v O’Leary).
Mens Rea
Mens Rea: The MR of either burglary offence (must match with the relevant AR), and knowledge of the weapon.
(1) Burglary: See burglary.
(2) Knowledge of Weapon: The defendant must know that they were armed at the time of offence, but need not have used or intended to use the weapon at the time of offence (Stones; Kelly).
