Burglary

Burglary is an offence we don't see a lot of in the Magistrates' Court, but given the recent uplift of the court's sentencing powers it is something we will deal with a lot more in the future.

When I say we don't see a lot of it, that doesn't mean burglary is particularly uncommon - although readers can be reassured that it is certainly a lot less common than it was even a decade ago. It means that a significant proportion of burglary offences, domestic burglaries in particular, are sent straight to the Crown Court.

In today's article I shall describe the nuts and bolts of the offence of burglary. Legal readers aside, many people are of the opinion this means breaking into somewhere and stealing something. The true extent of burglary is actually far broader than that.

Legislation:

Burglary is an offence under either sections 9(1)(a) or 9(1)(b) of the Theft Act 1968.

The section 9(1)(a) offence, which is often referred to as burglary with intent, is as follows:

"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 and such offences as is mentioned in subsection (2) below (namely theft or attempted theft of any item; attempted to inflict or inflicting grievous bodily harm)."

The section 9(1)(b) offence is as follows:

"A person is guilty of burglary if:

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm."

It therefore follows that a person can be guilty of burglary without the requirement that they break in and steal something. For example:

• They walk through the open door of a building with the intention of vandalising it (section 9(1)(a));
• Once inside a building they decide to give someone therein a good beating (section 9(1)(b)).

Actus reus and mens rea:

This is summarised in the table below.

Note that for the offence to be made out the relevant actus reus and mens rea need to coincide. For that reason it would be incorrect to charge a person with section 9(1)(a) burglary if they entered a building as a trespasser with innocent intent, but later decided to steal something.

Penalties:

In accordance with section 9(3) of the Act the maximum sentence for burglary is 14 years' custody in relation to a dwelling; 10 years' custody in relation to a non-dwelling.

The maximum sentence on summary conviction is 12 months' custody.

Entering:

In the early days of the Theft Act 1968 the initial train of thought was that the defendant had to make "effective" and "substantial" entry to a building, or part of a building, in order to commit burglary (R v Collins [1973] 1 QB 100). However, with the passage of time judges have considered quite a few variations on the theme.

In R v Brown [1985] Crim LR 320 the court upheld a defendant's conviction for burglary, when he failed in his argument that his entry to the building had not been substantial. In that case the defendant leant through an open shop window and swiped mechandise that was on display within reach.

In R v Ryan [1996] Crim LR 320 the defendant became stuck in the window as he was entering a building with the intention of stealing property. Given that only his head had made it through the window, his legs flailing frantically outside, he argued that his entry had not been effective. The court disagreed, persuaded by his clear intention to steal and active attempt to do so.

Those cases demonstrate that burglary can still be committed even if only a proportion of the defendant's body trespasses into the building or part building concerned.

Buildings and parts of buildings:

In order to be considered a building a structure has to have a degree of permanence - e.g. a house, factory, garage or shed.

Section 9(4) of the Act states that any reference to a dwelling shall be interpreted as to include inhabited vehicle and vessels, even if the person who inhabits them is not doing so at the relevant time - e.g. camper vans, house boats and similar.

A part of a building encompasses any room or part of a room where the defendant has no permission to be. This covers situations where the defendant might be in a building legitimately, but accesses a part they should not - e.g. a staff room, office, bedroom, store room etc.

Part of a building can also mean part of a room that they are excluded from - e.g. stepping over the rope barrier in a museum; going beyond a sign saying "no public access"; wandering around to the staff-only side of a shop counter (R v Walkington [1979] 1 WLR 1169).

As a trespasser:

I have previously covered trespass in some detail (Aggravated Trespass and Social Media Auditing), so I'll keep this section fairly brief.

A trespasser is a person who does not have permission, either express or implied, to be in a particular place at a particular time. This could be a person who has permission, but somehow exceeds it - e.g. they stay beyond the permitted time; or wander into an area they are told to keep out of.

There are two other situation, which are particularly relevant in the case of burglary.

The first is where a person fraudulently obtains permission to enter a building, in which case the law deems them a trespasser (R v Boyle [1954] 2 QB 292).

The second is where a person enters a building with the intention of doing something contrary to the general permission to enter, in which case the law deems them a trespasser - e.g. they enter a shop with the intention of stealing goods (R v Jones and Smith [1976] 1 WLR 672).

Shops regularly copper-bottom the matter of trespass by issuing banning orders to people they do not want in their premises.

In conclusion:

That's pretty much it for my whistle-stop tour of the offence of burglary.

The essential ingredient in every burglary is that the defendant, or at least part of their body, is present as a trespasser.

They might enter a building with the specific intention of committing an offence (section 9(1)(a)), or they might already be inside the building when they have the urge to do so (section 9(1)(b)).

As usual, I very much welcome feedback in the comments if you think I've missed or need to clarify anything.