Burglary

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Burglary

Section 9 Theft Act 1968

(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 is 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 anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.
(2) The offences referred to in subsection (1)(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 therein, and of doing unlawful damage to the building or anything therein.
(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding—
(a)where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;
(b) in any other case, ten years.
(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.
Sexual Offences Act 2003: Trespass with intent to commit a sexual offence

Section 63 makes it an offence for A to intend to commit a "relevant sexual offence" (defined at subsection (2) of section 62) whilst he is on any premises where he is a trespasser, either knowing, or being reckless as to whether, he is trespassing. A person is a trespasser if he is on any premises without the owner's or occupier's consent, or other lawful excuse. This offence is intended to capture, for example, the situation where a person (A) enters a building owned by (B), or goes into (B's) garden or garage without (B's) consent, and he intends to commit a sexual offence against the occupier. The offence applies regardless of whether or not the substantive sexual offence is committed. (A) will commit the offence if he has the intent to commit a relevant sexual offence at any time while he is a trespasser. The intent is likely to be inferred from what the defendant says or does to the intended victim (if there is one) or from items in possession of the defendant at the time he commits the trespass (for example, condoms, pornographic images, rope etc.). A separate offence is needed to cover trespass (as opposed to relying on section 62) because trespass is a civil tort and not a criminal offence.

Section 9 of the Theft Act 1968 creates two offences

Section 9 of the Theft Act 1968 creates two offences

  • Entry as a trespasser in any building or part of building with the intention of stealing, inflicting GBH or unlawful damage therein (section 9(1)(a) of the 1968 Act
  • Having entered as a trespasser any building or part of a building stealing, attempting to steal or inflicting or attempting to inflict GBH on any person therein (section 9(1)(b) of the 1968 Act

Burglary is an offence, which carries a maximum penalty on conviction on indictment of imprisonment for fourteen years and/or an unlimited fine if the offence is committed in relation to a building or part of a building, which is a dwelling. Otherwise the maximum penalty is ten years and/or an unlimited fine. On summary conviction, the maximum penalty is imprisonment for six months and/or a fine up to the statutory maximum. Burglary is an either way offence except in the following circumstances when it is an indictable only offence:

  • it comprises the commission of, or an intention to commit, an offence which is triable only on indictment;
  • the offence is committed in a dwelling and any person in the dwelling was subjected to violence or the threat of violence - section 17(1) and paragraph 28 of Schedule 1 Magistrates' Court Act 1980
  • the accused, if convicted, is liable to a minimum term of imprisonment for a period of three years under the provisions of 111 section 111 Powers of Criminal Courts (Sentencing) Act 2000. This applies when the accused is alleged to have committed a domestic burglary after 30 November 1999 and he has two convictions on separate occasions for domestic burglaries, both of which were committed after 30 November 1999, and s/he was 18 or over at the date of commission of the third burglary.

The elements of both offences of burglary are

Entry as a trespasser

Trespass means entry or presence on the premises without authority and can include a partial entry, for example, by a hand or an instrument through a letterbox or an open window.

The Court's preferred view of trespass was that of Professor Griew. In Regina v Collins EDMUND DAVIES L.J. said: The matter has also been dealt with by Professor Griew, who in paragraph 4-05 of his work The Theft Act 1968 has this passage:

"What if D wrongly believes that he is not trespassing? His belief may rest on facts which, if true, would mean that he was not trespassing: for instance, he may enter a building by mistake, thinking that it is the one he has been invited to enter. Or his belief may be based on a false view of the legal effect of the known facts: for instance, he may misunderstand the effect of a contract granting him a right of passage through a building. Neither kind of mistake will protect him from tortiability for trespass. In either case, then, satisfies the literal terms of section 9 (1): he `enters . . . as a trespasser.' But for the purposes of criminal liability a man should be judged on the basis of the facts as he believed them to be, and this should include making allowances for a mistake as to rights under the civil law. This is another way of saying that a serious offence like burglary should be held to 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. Unhappily it is common for Parliament to omit to make clear whether mens rea is intended to be an element in a statutory offence. It is also, though not equally, common for the courts to supply the mental element by construction of the statute."
Building or part of a building

Building includes outhouses or sheds and inhabited vehicles or vessels. The offence of burglary contrary to section 9(1)(a) involves the further element of an intention to commit one of the offences referred to in section 9(2).

The offence contrary to section 9(1)(b) involves the accused having committed one of the offences referred to in that sub-section.

Part of a building

R v Walkington 1979 'Staff only' area may be part of a building in burglary

Professor Smith’s publication The Law of Theft, 3rd edn 1978, at Paragraph 331

“It would seem that the whole reason for the words ‘or part of a building’ is that D may enter or be in part of a building without trespass and it is desirable that he should be liable as a burglar if he trespasses in the remainder of the building with the necessary intent. It is submitted that the building need not be physically divided into ‘parts’. It ought to be sufficient if a notice in the middle of a hall stated, ‘No customers beyond this point’. These considerations suggest that, for the present purposes, a building falls into two parts only; first, that part in which D was lawfully present and, second, the remainder of the building. This interpretation avoids anomalies which arise if physical divisions within a building are held to create ‘parts’.”

For example where: Professor J C Smith’s book The Law of Theft where he says:

“A customer in a shop who goes behind the counter and takes money from the till during a short absence of the shopkeeper would be guilty of burglary even though he entered the shop with the shopkeeper’s permission. The permission did not extend to his going behind the counter.”

Charging considerations

  • When they are any factual difficulties with the degree of entry, consideration should be given to charging another offence, for example theft.
  • Complications may arise when a spouse or partner who has been excluded from the former matrimonial home returns there and takes property. When the issue of trespass is or may be difficult to prove, you should consider charging theft or attempted theft. Remember that the DPP's consent is required for such cases. (Refer to Consents to Prosecute, elsewhere in this guidance).
  • When an accused has been formally barred from shop premises, the circumstances, which have resulted in the accused being excluded, may not be admissible in evidence on the basis that they result from alleged previous misconduct by the accused. If you form the view that the facts, which led to the accused being excluded, are unlikely to be admitted in evidence, or that it cannot be proved that the defendant knew about the notice, you should consider charging theft or attempted theft. The sentence for such a burglary would be unlikely to be more than for theft. The exclusion notice could be drawn to the court's attention when sentencing for theft.When the issue of trespass is or may be difficult to prove, you should consider charging theft or attempted theft.
  • A person acting as lookout for a burglar should be charged as a principal with the full offence.
  • Although an intent to steal may be readily inferred from possession of housebreaking equipment, the specific intent required under section 9(1)(a) to inflict GBH, to rape or to cause damage may be difficult to infer in the absence of admissions. Offences contrary to section 9 (1)(a) require proof of the specific intent at the time of entry to the premises. In the case of 'intent to steal', this may be readily inferred from the possession of housebreaking equipment. The specific intent to commit GBH, rape, or criminal damage may be more difficult to infer in the absence of admissions. In such circumstances, it may be appropriate to charge an offence of GBH, rape or criminal damage assuming there is sufficient evidence. The unauthorised entry would be an aggravating feature.
  • When an accused enters premises and removes a motor vehicle, in order to charge an offence of burglary, it is necessary to prove an intention to permanently deprive the owner of the vehicle or of the vehicle keys. If the evidence in relation to the vehicle is consistent only with an offence of taking without consent, burglary should not be charged in relation to the entry to the premises unless other property such as the vehicle keys are taken and not recovered.
Alternative Charges
  • Being found on enclosed premises - section 4 Vagrancy Act 1824 is a summary only offence and carries a maximum sentence of 3 months imprisonment and/or a level 3 fine. This charge will be appropriate for an accused against whom there is insufficient evidence of burglary or attempt burglary, but who is found within an enclosed area for an unlawful purpose.
  • Theft, GBH or Criminal Damage - if the element of trespass required for a charge under section 9(1)(a) cannot be proved.
  • Trespass with intent to commit a sexual offence, contrary to section 63 Sexual Offences Act 2003.
  • Going equipped to steal - if the accused is in possession of housebreaking implements.
  • Taking without consent or aggravated taking without consent if the entry to the premises was solely to take a motor vehicle for the purpose of joy-riding.
  • Attempted burglary - this may be appropriate if the degree of entry is in dispute, but the circumstances clearly demonstrate that an unauthorised entry to the premises was intended.

Attempt Burglary

Burglary should only be charged if there is clear evidence that he attempted entry with the necessary intent. Criminal Attempts Act 1981: A person is guilty of attempting to commit an offence if they engage in a course of conduct that would, if allowed to continue uninterrupted, have resulted in the commission of the full offence. The acts done must be more than merely preparatory. Alternative charges are:

  • Criminal Damage
  • Going Equipped

Case Law

Saw & Ors, R v (16 January 2009)

In Saw & Ors, R v [2009] EWCA Crim 1 (16 January 2009) The Lord Chief Justice provided guidelines for sentencing in cases of domestic burglary.

Collier, R v (20 January 2009)

Collier, R v [2009] EWCA Crim 160 (20 January 2009) The appellant pleaded guilty to three counts of domestic burglary and was sentenced to 7 years' imprisonment on each count to run concurrently. Held: Appealed against sentence refused.

Diamond, R v (12 October 2009)

Diamond, R v [2009] EWCA Crim 2193 (12 October 2009) The appellant pleaded guilty to one count of dwelling house burglary and was sentenced to 3 years' imprisonment. Sentence of 3 years quashed and a sentence of 12 months substituted.

Grantham, R v (19 December 2008)

Grantham, R v [2008] EWCA Crim 3208 (19 December 2008) the appellant, a man now aged 34, pleaded guilty to a single count of burglary. He was sentenced to a term of five-and-a-half years' imprisonment. He appeals by leave of the single judge. The judge in sentencing showed an understandable degree of exasperation with this particular appellant, noting that he had in fact voluntarily engaged on a lifetime of crime. What the judge said was this:

"Martin Lee Grantham, you are 34 years of age and the real purpose of sentencing you is to protect the public from your criminality. As your counsel properly indicated, the only mitigation in your case is your guilty plea and I am going to give you credit for that, but I am not giving you the maximum credit because you were caught red handed."

Held: We can well understand the judge's sentencing remarks, if one focuses simply on the offender himself. But of course the court also has to focus as well on the offence. We are persuaded that on a plea a sentence of five-and-a-half years' imprisonment for what was a single count of burglary and with no real aggravating factors in the offence (apart from the fact - and an important fact - that this was committed at night-time when occupants were in the house) cannot be maintained. Accordingly, we quash the sentence of five-and-a-half years' imprisonment and substitute for it a sentence of four years' imprisonment. The appeal is allowed to that extent accordingly.

Gibbs, R v (25th June, 1999)

Gibbs, R v [1999] EWCA Crim 1786 (25th June, 1999) The starting point, generally speaking, in relation to dwelling-house burglary is, of course, Brewster & Others [1998] 1 Cr App R(S) 181, where the relevant factors in relation to domestic burglary are identified in the course of the judgment given by the Lord Chief Justice, Lord Bingham who said this:

"Generally speaking, domestic burglaries are the more serious if they are of occupied houses at night; if they are the result of professional planning, organisation or execution; if they are targeted at the elderly, the disabled and the sick; if there are repeated visits to the same premises; if they are committed by persistent offenders; if they are accompanied by vandalism or any wanton injury to the victim, if they are shown to have a seriously traumatic effect on the victim; if the offender operates as one of a group; if goods of high value (whether actual or sentimental) are targeted or taken; if force is used or threatened; if there is a pattern of repeat offending it mitigates the seriousness of an offence if the offender pleads guilty, particularly if the plea is indicated at an early stage and there is hard evidence of genuine regret and remorse."
Megarry, R v (11 June 2002)

Megarry, R v [2002] NICA 29 (11 June 2002) R v Brewster Lord Bingham said at page 185:

“Domestic burglary is, and always has been, regarded as a very serious offence. It may involve considerable loss to the victim. Even when it does not, the victim may lose possessions of particular value to him or her. To those who are insured, the receipt of financial compensation does not replace what is lost. But many victims are uninsured; because they may have fewer possessions, they are the more seriously injured by the loss of those they do have. The loss of material possessions is, however, only part (and often a minor part) of the reason why domestic burglary is a serious offence. Most people, perfectly legitimately, attach importance to the privacy and security of their own homes. That an intruder should break in or enter, for his own dishonest purposes, leaves the victim with a sense of violation and insecurity. Even where the victim is unaware at the time, that the burglar is in the house, it can be a frightening experience to learn that a burglary has taken place; and it is all the more frightening if the victim confronts or hears the burglar. Generally speaking, it is more frightening if the victim is in the house when the burglary takes place, and if the intrusion takes place at night; but that does not mean that the offence is not serious if the victim returns to an empty house during the daytime to find that it has been burgled.”
Brown, R. v (18 January 1985)

Brown, R. v [1985] EWCA Crim 3 (18 January 1985) The defendant was witnessed who said that the top half of the defendant was inside and he was rummaging about. The witness said: "I assumed his feet were on the ground." He was partly obscured by one of the other men. The defendant was convicted of burglary. He appealed on the ground that he had not "entered" the building, since his body was not entirely within it. Held: that the word "enter" in section 9 Theft Act 1968 did not require that the whole of the defendant's body be within a building. The statement of Edmund-Davies LJ in R v Collins [1973] that entry must be "substantial and effective" did not support the defendant's contention. "Substantial" did not materially assist in the matter, but a jury should be directed that, in order to convict, they must be satisfied that the entry was "effective". There had clearly been an entry in the present case.

Collins R. v (1972)

R v Collins [1972] 2 All ER 1105 A most extraordinary case dealing with 'entry as a trespasser' re burglary. The Court Held: “We hold that, for the purposes of section 9 of the Theft Act, a person entering a building is not guilty of trespass if he enters without knowledge that he is trespassing or at least without acting recklessly as to whether or not he is unlawfully entering.”

Jones R. v (1976)

R v. Jones and Smith [1976] 1 WLR 672 A person is a trespasser if he enters a building or part of a building where he enters without permission or in excess of the permission given. In R v Smith and Jones the defendants removed two television sets for the home of Smith’s father during the night and were convicted of burglary. Smith’s father had reported the television sets had been stolen in a burglary earlier in the evening prior to the defendants arrest. Smiths father gave evidence at the trial of the two defendants for burglary and told the Court that his son was not a trespasser because he had unreserved permission to enter his home at any time. The defendants were convicted. On appeal the Court held that a person was a trespasser for the purpose of section 9(1)(b) if he entered premises knowing that or being reckless as to whether he was entering in excess of any permission that had been given to him to enter provided facts were known to the accused which enabled him to realise that he was acting in excess of the permission given.

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