Property offence - Burglary Flashcards
Burglary:
Legal definition
Theft Act 1968 - S.9(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 mentioned in subsection (2) below: or
(B) Having entered any building or part of a building as a trespasser he steals or attempts to steal inflicts or attempts to inflict on any person therein grievously bodily harm”
What are the Actus Reus elements and the Mens Rea elements of robbery?
Actus Reus:
“attempts to steal inflicts or attempts to inflict on any person” / committing GBH
“Enters any building or part of a building as a trespasser”
Mens Rea:
“Intent to commit any such offence”
Ulterior intent
The theft act 1968 - S.9:
“The offences referred to in subsection (!) (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 F2…… therein, and of doing unlawful damage to the building or anything therein”.
Entry
Common elements:
- In most cases the defendant will enter the property in the ordinary sense - with his whole body. However:
- Partial entery: if the defendant puts only part of his body into a building (e.g hand through open window to steal purse) this will suffice ‘entry’ (Brown [1985])
- Use of an instrument or innocent agent: If defendant remains totally outside of building but uses some other means to access the inside of the building, this will still amount to ‘entry’ for the purpose of burglary (E.g sends a small child through cat flap or uses something to grab keys).
Building or part of a building:
Buildings are usually straightforward but there are two tricky areas:
- Non - typical structures - S9(4) specifies that inhabited vehicles and vessels are within the meaning of building. Other structures are judged according to whether they are of sufficient size and permanence [Stevens V. Gourley (1859)]
- Separate areas - separate areas within a building
As a trespasser
As a trespasser:
The defendant must enter the building or part of building as a trespasser i.e. without the knowledge or permission of the owner or person otherwise entitled to grant permissions
Case law has considered whether it is enough that he lacks permission or whether he must know that he has no permission to enter:
R v. Collins [1973]
Facts:
The defendant, naked apart from his socks, climbed a ladder and looked through the victim bedroom window, She assumed it was her boyfriend and beckoned him into the room. She realised her mistake during intercourse. He was charged with S.9 (1)(a) burglary. at the time, including intent to rape within ulterior motive.
Legal principle:
Trespass requires entry without permission so if the defendant believed he had permission to enter, any part of his body crossing the threshold that he would not be a trespasser, so cannot be liable for burglary.
The highlights the dual aspects of trespass in burglary:
- Entry into a building (or part of) without permission: actus reaus
- Knowledge that there is no permission or awareness that there is a risk that there is no permission to enter: mens rea
Permission to enter may be express or implied and may be limited to particular parts of the building or to enter for a specific purpose. For example, permission to enter a hotel may include the lounge but will exclude the kitchens. A person who exceeds the extent of his permission may still be a trespasser
Trespassing is not considered a criminal offence but a civil matter.
(R V. Jones and Smith [1967])
Facts:
The defendant entered his fathers house with a friend to steal two televisions. He general permission to enter the house and argued that this meant that he was not a trespasser for the purpose of burglary.
Legal principle:
It was held that a person who enters a building for an unlawful purpose will be a trespase in that building irrespective of any express or implied permission to enter that has been extended to him.
This highlight the dual aspects of trespass in burglary:
Entry into a building (or part off) without permission: actus reus
Knowledge that there is no permission or awareness that there is a risk that there is no permission to enter: mens rea
Permission to enter may be express or implied and may be limited to particular parts of the building or to enter for a specific purpose. For example, permission to enter a hotel may include the lounge but will exclude the kitchens. A person who exceeds the extent of his permission any still be a trespasser.
Summary:
The R V Jones and Smith case is important because it establishes that a person who does have permission o enter a building can still be a trespasser ( and therefore liable for burglary if he acts in a way inconstant with the permission granted. (e.g a supermarket extends permission to the public to enter the shop but not to steal.)
In itself, trespass in a civil wrong, not a criminal wrong. It only becomes part of a criminal offence when coupled with criminal act.
Ulterior intent:
S.9(1) Requires an ulterior intent to commit theft, GBH or criminal damage at the time that the defendant entered the building. If the intent is not present upon entry. Subsequent formation of ulterior intent will not amount to burglary.
Tip: Focus on what was in the defendant’s mind at the point of entry into the building. Conditions intent will suffice (where the defendant intended to steal only if he could find something of value. This will satisfy the ulterior intent requirement. (Attorney - General’s Reference (Nos 1 and 2 of 1979 QB 180 (CA))
This can be applied to the other offences:
Does the defndant intend to cause harm if a particluar person is in the building?
Does the defendant intent to smash particular property if he can find it?
Remember: There is no need for the defendant to actually do anything - it is his intention to liability, not - his actions
Section 9 (1) (b)
Section 9(1) (b) requires actual or attempted offending once the defendant is within the building so that he must either satisfy:
- All 5 elements of theft
- The elements of S.20 (offences against the person act) - for GBH
- The requirements for liability for attempting either offence (where the defendant attempts to commit a crime but doesn’t manage to fulfil it)
Robbery and Burglary.
Test question
R v Dan
Dan taps an elderly lady on the arm to attract her attention and ask directions to the town centre. Whilst she is pointing and her attention is distracted, he removes her purse from her bag without her noticing. Dan decides to steal a bottle of wine from the local off-license. He hides the wine under his coat but is spotted by the shopkeeper who tries to stop him from leaving so Dan trips him over causing the shopkeeper to break his leg.
Part 1: Robbery
Appropriate
Property
Belonging to another
Intents/dishonesty
Part 2: Burglary
Even though the defendant had entered an open shop which is for the whole of the public, as he had come into the shop and had stolen we can then deem him as a trespasser, we can see this from the case Jones v Smith. Using Jones v Smith shows us that even though he has permission to enter the property, it does not give him the right to steal from the shop. As Dan had tripped the shopkeeper and caused him to break his leg, this will then be GBH, even though he may not wanted to make the shopkeeper to break his leg, there is still recklessness meaning that he had done this without thinking about what may happen after he had tripped him. Yet even though Dan didnt intend
Actus reus - Enter/building/part of/trespasser
Mens rea - Intent/recklessness/ulterior intent
Recklessness
Is tapping the lady’s shoulder ‘force’?
Was the tapping used as part of the strategy to commit theft?
Did Dan formulate the plan to steal the wine take place prior to entering the shop? ((If so, then he is potentially liable for s.9(1)(a) - intent - burglary as he entered the premises with the intention to steal
However, if he only this intention after entering the store, he can only be liable for theft.
As soon as he removes the wine with intent to steal, he is liable under s.9(1)(b) – if you can identify all 5 elements of theft
Did force happen at the right time to turn theft of the wine into robbery? (think s.8 but also Hale)
The broken leg would be regarded as ‘really serious harm ‘ under s.20 of Offences Against the Person Act 1861 - GBH
