Burglary

Burglary

 



Burglary is generally thought of as the typical situation of someone breaking into a private home and stealing from it. In law, burglary does cover this situation but it goes further.

The Law on Burglary is divided into two parts:

Section 9(1)(a) and Section 9(1)(b) of the Theft Act 1968.

-          Section 9(1)(a) states that a person is guilty of burglary if he enters any building or part of a building as a trespasser with intention to steal or inflict Grievous Bodily Harm or do unlawful damage to the building or anything in it.

This essentially means that the defendant has to be a trespasser on private property uninvited. In the Section 9(1)(a) there must be ‘Intent’ to steal property this is specific intention to steal or cause harm or unlawful damage.

-          Section 9(1)(b) states that a person is guilty of burglary if having entered as a trespasser and steals unintentionally or attempts to steal anything in the building or possibly inflicts or attempts to inflict GBH on any person in the building without specific intention of doing so.

This essentially means that you have to be a trespasser on private property uninvited. Section 9(1)(b) outlines a different intention of ‘Attempt’ or ‘Attempted’ to steal, meaning without specific intention to steal also meaning that there is no specific intention to cause or inflict GBH or unlawful damage to anyone or anything in the building.

Background and Sentencing

Given that burglary is quite an intrusive offence there is a difference in maximum sentences if there is a threat to a home. There is no higher maximum sentence if the property burgled was a dwelling meaning a home or house and therefore technically Section 9 creates four offences.

-          Section 9(1)(a) of a dwelling

-          Section 9(1)(a) of a non-dwelling

-          Section 9(1)(b)of a dwelling

-          Section 9(1)(b) of a non-dwelling

Within both Section 9(1)(a) and Section 9 (1)(b) there are a number of common elements specifically in Actus Reus –

-          Entry

-          Of a Building

-          As a trespasser

And in Mens Rea –

-          Knowledge or recklessness as to entering as a trespasser.

However there are individual features of the offences which will make them quite distinct.

The offences of 9(1)(a) and 9(1)(b) will therefore be considered in turn.

The Actus Reus of Section 9(1)(a) has three elements –

-          Entered

-          A building or part of a building

-          As a trespasser

The Mens Rea has two elements –

-          Intention or recklessness to entre as a trespasser

-          Intention to commit the ulterior offence

The defendant must know or be subjectively reckless as to whether he is trespassing.

Burglary under Section 9 (1)(b)

The Actus Reus of Section 9(1)(b) has four elements –

-          Entered

-          A building or part of a building

-          As a trespasser

-          Actus Reus of Theft or GBH

The Mens Rea has two elements –

-          Intention or recklessness to entre as a trespasser

-          Intention to commit the ulterior offence

Entry

The defendant must entre, or has entered a building in order to be guilty of burglary. Weather there has been an entry is s question of fact for the jury. In giving them guidance, the Court of Appeal has held that there has to be an ‘effective’ entry. This essentially means that there must have been enough of the defendant in the building to achieve the ulterior intention like committing or attempting to commit one of the ulterior offences.

A case to support this is R v Collins 1972 where the court decided that the defendant had made an effective entry.

The Victim a woman following an evening of drinking went to bed, the defendant had gone to her house, taken off his clothes and climbed a ladder in order to enter her bedroom and have intimacy with her. The defendant claimed that whilst balancing on the window sill the girl had invited him in assuming he was her boyfriend. However during the intimacy she realised he was not her boyfriend and she demanded him to leave.

His convictions where quashed for burglary as a trespasser as the jury must be satisfied that the defendant had made an effective and substantial entry into the building. Meaning he was found not guilty.

However a Guilty case is R v Brown 1985 – where the defendant was convicted because he had made an ‘effective’ entry because he could handle enough of the goods inside the shop window to commit the ulterior offence.

The defendant was arrested whilst standing on the pavement outside a shop, with the upper body and arms through a broken window as he was rummaging through the goods inside.

His convictions for burglary were upheld by the Court of Appeal who said this was a ‘sufficient entry’ as long as the ulterior intent was present.

R v Ryan outlines the principle that there is no requirement for a successful theft under Section 9(1)(a) is illustrated.

The defendant was found trapped in a window frame, with his head and one arm inside the house and the rest of him outside. His appeal against his conviction for burglary was dismissed even though he could not in fact steal anything because of being stuck, his entry was sufficient.

The place which the defendant enters as a trespasser must be a building or a part of a building. Under the act there is no formal definition of a building, but section 9 (3) states that it must be a fairly permanent fixed structure or a substantial portable structure that is designed to be lived in, for example it includes inhabited vehicles or vessels e.g. caravans and house boats.

Section 9 (3) states – References in subsection 1 and 2 above to a building shall also apply to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having habitation in it is not there as well as times where he is.

A case to support this is – B and S v Leathley 1979 – where a 25 foot long freezer container had been in a farmyard for over two years and was used as a storage facility. It rested on Sleepers and had doors with locks and was connected to the electricity supply. It was held to be a building. However Stevens v Gourley 1859 – where a building is defined as a structure of considerable size and intended to be permanent or at least to endure for a considerable time. However in contradiction to this is that it could not be generalised to more relative cases closer to the current date period as in the case of Norfolk Constabulary v Seekings and Gould 1986 – where a lorry trailer with wheels which had been used for storage for over a year and had steps providing access and was connected to an electricity supply was held not to be a building, it in fact had wheels meaning that it was a vehicle which contradicted the definition in Stevens v Gourley.

Trespass

This occurs when a person intentionally or recklessly enters a building in the possession of another without permission or legal right or does so. This essentially means that entry has to be voluntary, not forced or purely accidental.

Usually it will be easy to show that the wrongdoer is trespassing but occasionally there are problems, as, for example when the defendant claims he has a right to be there for the offence of burglary to be made out there must be a finding of civil trespass. However the Court of Appeal has held that a defendant charged with burglary must have Mens Rea to whether or not he is trespassing. That is, d must enter ‘knowing that he is a trespasser or, at the very least is reckless whether or not he is entering the premises of another without the other party’s consent’.

As in the case of R v Collins 1973 –

The defendant went past a house where he knew a young lady lived. He climbed a ladder up to her window and peered in. She was lying naked on the bed, which was near the window. Collins descended the ladder, took off all his clothes, except his socks, and climbed back up the ladder. As he reached the window, the young lady woke up saw a naked man with an erect penis and, thinking he was her boyfriend invited him in; they then had sexual intercourse. She then realised that it was not her boyfriend.

 It was held: In order to be convicted of burglary, the defendant had to have made a substantial and effective entry as a trespasser before consent was given. Meaning he was not guilty.

The jury had not been asked to consider the vital question whether he had entered the building as a trespasser and whether he knew or was reckless as to whether he was entering as a trespasser. It was accepted that an invitation from the young lady would have been sufficient to make Collins’s entry not trespasser and so consideration should have been given to when her invitation was made, that is, whether he was outside the building at that time or not. Presumably someone could override such permission with a greater interest in the building in question.

The court expressed its view on Mens Rea as follows

“there cannot be a conviction for entering premises ‘as a trespasser’ … 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"

Edmund Davies LJ:

"A serious offence like burglary should require Mens Rea in the fullest sense of the phrase: D should be liable for burglary only if he knowingly trespasses or is reckless as to whether he trespasses or not"

Permission to enter a building or part of a building can be given expressly or impliedly from the circumstances.  For example, at college, you have implied permission to enter the common areas of the building, and other areas only with permission e.g. emergency stairwells etc.  A sign on an office door saying “meeting in progress” means do not enter.  Any student who has been suspended or excluded from college does not have permission to be on site and therefore would be classed as a trespasser.

A person who is given permission to enter for one purpose but in fact enters for another purpose is entering as a trespasser.    For example in the case of R v Jones and Smith 1976 –

The defendant had stolen two televisions from his father's house, which he had general permission to enter. He had left home but was allowed to visit.  It was held that the defendant was a trespasser if he entered premises knowing that or being reckless whether he was entering in excess of any permission that had been given to him to enter. He was found to be Guilty.

The underlying principle is that if a person enters a building with intent to steal, cause GBH or cause criminal damage, he does so as a trespasser except in the unlikely event of the occupier giving him permission to do so.

Coincidence in time

The defendant must be a trespasser at the time of entry into the building or part of the building as in the case of R v Laing 1995 –

The defendant hid himself in the stock area of a department store.  When the store had closed he was discovered. There was no evidence that he was a trespasser when he entered the store.  It was held the prosecution should have alleged he was a trespasser when entering the stock room. He was found to be not guilty.

The Actus Reus of s9(1)(b)

The prosecution must prove all the elements of the Actus Reus of s9 (1)(a) offence and in addition prove that the Actus Reus of the ulterior offence, such as stealing, attempting to steal, inflicting or attempting to inflict GBH has been carried out. This offence is committed not at the time of entry but at the time of committing the ulterior offence.

Mens Rea of Burglary

The Mens Rea of 9(1)(a)

There are 2 elements: intention or recklessness as to the trespass, and intention to commit the ulterior offence.

1)      Intention or recklessness as to the trespass.

In civil law there is no need for Mens Rea to be proved in relation to a civil trespass, but in criminal law it is necessary in the context of burglary. The relevant form of Mens Rea is intention or subjective recklessness. In the case of Collins the defendant probably lacked intention or recklessness to trespass if he enters the house after the girl had invited him in.

2)      Intention to commit the ulterior offence

The defendant must intend to commit one of the offences listed in Section 9(2), known as the ulterior offences: theft; inflicting GBH; unlawful damage to the building or anything in it. The intention must exist at the time of entry. Provided the defendant enters with the relevant intention, the full offence of burglary is committed at the point of entry; the defendant need not actually proceed to commit the ulterior offence.

Conditional Intent

Conditional intention is not enough for theft. However for burglary conditional intent can be sufficient, so if for e.g. a defendant breaks into a house intending to steal if they find anything worth taking, or to commit GBH to a particular person if that person is in the house, then that intention may be sufficient for burglary.

A case to support this is R v Walkington (1979) –

The defendant went behind a counter in a large store and opened a till drawer. The counter was movable, but occupied a clearly identified area. It was empty so he slammed it shut.  The defendant was convicted for burglary.  The defendant claimed he did not realise that he was not allowed to go behind the counter and therefore had not entered as a trespasser.  It was held that it is for the jury to decide whether the area physically marked out by a counter was sufficiently segregated to amount to a "part of a building" from which the general public are excluded. It was clear that the public was impliedly prohibited from entering the counter area and the defendant knew this. He was found Guilty even though nothing in the till.

Or in the case of Attorney-Generals References Nos 1+2 of 1979 –

The defendant 2 was caught inside a house.  The defendant no 1 found attempting to burgle a house through French windows he admitted he intended to steal “anything lying around”.  Both acquitted by the trial judge because it had not been specified by the prosecution what items they intended to steal. It was held that Conditional intent will suffice; meaning quite simply that all that is required is intent to steal at the time of entry. It is not necessary to prove what was the objected that D intended to steal.

If it subsequently turns out that there is nothing worth stealing in the building, the defendant still may be prosecuted for burglary.
Similar considerations apply where the charge relates to attempted burglary. They were found to not be guilty, but would be now.

Aggravated burglary

This is defined in the Theft Act 1968, s10 as:

‘A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive’

This means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.

Articles made for incapacitating a person might include a pair of handcuffs, articles adapted for incapacitating include a pair of socks made into a gag, and articles intended might include sleeping pills to put in someone’s tea, a rope to tie someone up, pepper to throw in someone’s face etc.

This means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

A box of matches would not be an explosive under the Theft Act.

Actus Reus

Aggravated burglary involves committing a burglary when equipped with a weapon. The defendant must be in possession of the weapon at the time of the burglary. NB The moment at which the burglary occurs depends on whether it is s9(1)(a) or s9(1)(b).

A case to support this is R v O'Leary 1986 -

The defendant entered a house without a weapon. Once inside he took a knife from the kitchen and took it upstairs to affect the burglary. It was held that the offence was charged under Section 9(1)(b) and there was thus no requirement that he had the knife at the time of entry. His conviction was upheld.

Whether the defendant arms himself only to escape, having already completed the burglary e.g. by stealing, being guilty of the aggravated offence is debatable. By analogy with the courts approach in Watson (1989) and the courts’ willingness to treat theft act offences as continuing it is likely that the offence would be held to have been committed.

R v Watson 1989 set out –

The appellant smashed a window and broke into the house of an 87 year old man, Harold Moyler. Moyler went to investigate and the appellant shouted abuse at him and ran off. The police arrived and Moyler suffered a heart attack and died 90 minutes after the initial break in. it was held that his conviction was quashed as it could not be established that the break in was the cause of the heart attack. However, the Court of Appeal held that a sober and reasonable person would regard the act of the appellant as dangerous as they would have known of the age and frail condition of the victim.

Mens Rea

The defendant must have the Mens Rea of burglary and also know that he or she has the weapon.

The expression ‘has with him’ appears in the Prevention of Crime Act 1953 and reference should be made to discussion of that Act, particularly as regards the controversial issues of the defendant claiming to have forgotten that he ‘has with him’ the forbidden article.

It was held that a common sense approach to this question should be taken as in the case of R v Bradish 2004 –

In the circumstances of the instant case, where the defendants were armed with firearms whilst intending to commit a robbery, an offence of having a firearm with intent to commit an indictable offence, contrary to Section 18 of the in relation to a third firearm, which had been left at an associates flat at least two miles from the scene, had not been made out. Essentially meaning the firearm could not be said to be with that defendant for the purposes of the Firearms Act 1968 Section 18.

When the prosecution have proved that the article was made or adapted for causing injury or incapacitating, they need not prove that the defendant intended to use the weapon in the course of burglary. Where the article was not so made or adapted, but the prosecution proved the defendant had it with him for such use it is not necessary to show that he intended so to use it in the course of the burglary.

As in the case of R v Stones 1989 –

The defendant was caught by the police during the course of committing a burglary. He had a knife on him at the time and was charged and convicted of aggravated burglary. He appealed contending that he had no intention to use the knife in the burglary and was only carrying it as the lads from Blyth were after him. It was held that the Conviction be upheld. Possession of the weapon at the time of the burglary is all that is required for aggravated burglary. There is no Mens Rea required as to the possession. He was found guilty Therefore, conditional intent to use a weapon suffices for the offence.