Burglary

This is usually seen as a typical situation was someone breaks into a home and stealing possessions. Even though law does cover this type of situation it also goes a lot further.

Law is divided in to two parts Section9-1(a) and Section9-1(b) of the Theft Act 1968

Definition of burglary states that:

A person is guilty of burglary if the enters any building or part of a building as trespasser with intent to steal inflicts damage to the building or anything in it. This means that you have to be a trespasser with the intention to steal or inflict GBH intention to cause GBH to building or people.

Section9-1(b) states:

A person is guilty of burglary if having entered as a trespasser he steals or attempts to steal anything in the building or inflict or attempt to inflict GBH on anyone or the building this means you have to be  a trespasser but with no intention at the time of break in attempts to cause GBH to another person.

Background and sentencing

Burglary is an intrusive offence therefore there is a difference in the maximum sentence if there is a threat at home. There is a higher sentence if the property is burgled was a swelling such as a home. Therefore section 9 has 4 offences

• S.9-1(a)of a dwelling
• S9-1(b) of a non-dwelling
• S9-1(a) of a dwelling
• S9-1(b) of a non-dwelling

In both sections a and b there are a number of elements that are specific in the Actus Reus

• Entry
• Of a building
• As a trespasser

Mens Rea

Knowledge of recklessness as to entering as a trespasser.

Burglary S9-1(a) has three elements

• Entered
• A building/part of a building
• As a trespasser

Mens Rea has two elements

• Intention/recklessness to enter as a trespasser
• Intention to commit the ulterior offence

 Burglary under S9-1(b)

Actus Reus has 4 elements

• Entered
• A building/part of a building
• As a trespasser
• Actus Reus of theft/GBH

Mens Rea has one element

D must possess the GBH / theft at the point of committing or attempting to commit the offences of a building.

Entry

The defendant must enter or have entered a building to be found guilty of burglary. The court of appeal held that there must be an effective entry which means that there must have been enough for the d in the building to achieve the ulterior intent

R v Collins

A female victim following an evening of drinking had gone to bed. The d had gone to her house, taken off his clothes and climbed up a ladder in order to enter the victim’s room and have intimacy with her. The defendant claimed that whilst balanced on the ladder the v had invited him in assuming he was her boyfriend. However during their intimacy she realised he was not her boyfriend and demanded he left. His conviction for burglary as a trespasser was quashed by the Court of Appeal as the jury must be completely satisfied. D had made an effective and substantially entry into the building.

R v brown (1985)

D was arrested whilst standing on the pavement outside a shop with his upper body and arms through a broken window as he rummaged through the goods inside. His conviction of burglary was upheld by the court of appeal who said this was a sufficiently entry as long as the ulterior intention was present.

R v Ryan (1996)

D was found trapped in a window fame with his head and one arm inside the house. 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.

Section9-3 states that:

References to the above shall also apply to an inhabited vehicle or vessel and shall apply you any at times when the person having habitation in it is not there as well as times when he is.

Stevens’ V Gourley (1859)

A building comprised a structure of considerable size and intended to be permanent or at least to endure for considerable time

B and S V Leathley (1979)

A 25 foot long freezer container had been used in a farmyard for over two years and was used as a storage facility. It rested on sleepers; it had doors/ locks and was connected to electricity this was held as a building.

Norfolk constabulary v Seekings and Gould (1986)

A lorry trailer with wheels which had been used for storage for over a year had steps provided access and was connected to electricity, it was held as a building. The fact it and wheels means it remains as a vehicle

R v Walkington (1979)

D went into a counter area at a shop and opened a till. He was guilty of burglary under Section9-1(a) because he had entered part of a building area as a trespasser with the intention of stealing. The counter area was not an area where customers were permitted to go. It was for the use of the staff only.

Trespass

 Trespass has been defines as occurring when a person intentionally or recklessly enters a building into the possession of another without permission or the legal right to do so. This means that the entry must be voluntary and must not be forced or purely accidental.

It is usually easy to show that the defendant has trespassed but occasionally there can be problems such as when the defendant claims that they had the right to be there

For the crime of burglary to be an offence there it has to be made out that there is a finding of civil trespass however the court of appeal has held that a defendant charged with burglary, they must have the Mens Rea as to whether or not it is trespassing.

D must enter the building knowing that he is a trespasser or that they are entering the premises of another person without their consent.

R V Collins(1973)

You must first have permission to enter a building or part of a building which can be given expressly or implied for the circumstances before entering. Such as a college you must be a student at a college before you can enter, you must also have proof that you are a student with the use of student cards. If you enter without being a student at the college you are seen as a trespasser and could be prosecuted.

A person who has permission to enter a building or part of a building for one purpose but in fact enters for another reason is still seen as a trespasser.

R V Jones and Smith (1976)

D stole two TV’s from his father’s house which he had general permission to enter; he had left home but was allowed to visit. The principle is that a person enters a building with the intention to steal, cause GBH or criminal damage, he does this as a trespasser except when he is given the permission to enter the building.

Coincidence in time

The defendant has to be a trespasser at the time of entry as seen in cases of:

R v Laing (1995)

D hid himself in the stock area of a department store when the store had closed, until he was discovered. There was no evidence that he was trespasser when he entered the store. He was not guilty since there is no evidence that he was not a trespasser when entering the store.

Actus Reus of S9-1(b)

The prosecution must prove that all elements of Actus Reus of S9-1(a) offences, in addition to this they must prove that the Actus Reus of the ulterior offence such as stealing attempting to steal inflicting or attempting to inflict GBH has to be carried out. This offence is not committed at the time of entry but at the time of committing the ulterior offence.

Mens Rea of S9-1(a)

There is two elements intention or recklessness as a trespass and intention to commit the ulterior offence

Intention or recklessness as a trespass

No Mens Rea is to be proved in relation to civil trespass however criminal law it I necessary in the context of burglary. The Mens rea is intention or subjective recklessness, this can be seen in the case of Collins as the defendant lacked the intention or recklessness to trespass if he entered the house after the girl had invited him in.

Intention to commit the ulterior offence

The d must have the intention to commit one of the offences that is listed on S9(2) which are known as the ulterior offences, theft, inflicting GBH, unlawful damage to the building or anything from inside of the building. The intention must only exist at the time of entry. And that the d enters with the relevant intention, the process of burglary is committed at the point of entry. The d does not have to proceed to commit the ulterior offence.

Conditional intention

Means when the d is entering and intending to steal anything they can find that is worth stealing.

Conditional intention is not enough for theft to be committed however for burglary the conditional intention has to be sufficient such as when a d breaks into a house intending to steal if they find something worth taking or to commit GBH to the owner of the home than that intention is sufficient for burglary.

R v walkington (1979)

D went into a counter area at a shop and opened a till. He was guilty of burglary under section9 (1a) because he had entered part of a building area as a trespasser with the intention of stealing. The counter area was not an area where customers were permitted to go. It was for the use of the staff only.

Attorney generals references no1/2 (1979)

Two conjoined references where burglars had entered without the intention of stealing a specific item. The two were found not guilty. 

Mens Rea 9-1(b)

The prosecution must prove the intention of the recklessness of the trespass, they must first prove the Mens rea of the ulterior offence, and the d need not have the Mens rea for when the ulterior offence is committed at the time of entry