Burglary in English law
Encyclopedia
Burglary in English law is defined by section 9 of the Theft Act 1968
which created two variants:
, it was held that entry had to be "substantial" and "effective". The issue arose in R v Brown 1985 71 Cr App R 15 in which the defendant had been found on the pavement
outside a shop with the top half of his body through the broken window, sorting though property on display for sale; this was held by the Court of Appeal
to constitute an effective entry, while regarding the use of the word "substantial" as unnecessarily wide. It was ruled that the jury had been entitled to conclude that the entry had been effective. Furthermore, in R v Ryan 1996 160 JP 610, the defendant had been found partially within a building, having been trapped by a window, and argued that this was not a sufficient entry. However, he was convicted as it was held that a partial entry was sufficient and that it was irrelevant that he was due to circumstances incapable of stealing anything.
Burglary can also be committed in "part of a building" and in R v Walkington 1979 1 WLR 1169 the defendant had entered a large shop during trading hours but went behind a counter and put his hand in an empty till
. The court held that he had entered that part of the building normally reserved for staff as a trespasser with intention to steal money and was therefore guilty of burglary.
is entering or remaining another's property without authority; a person having permission to enter property for one purpose who in fact enters for another purpose may become a trespasser, and in R v Jones and Smith, a defendant who had a general permission to enter his father's home became a trespasser when he did so in order to steal a television set, because doing so was inconsistent with the general permission. In recent years, the terms "distraction burglary", "artifice burglary" and "burglary by trick" have been used in crime prevention circles when access to premises is granted as a result of some deception on the occupier, usually by a pretence that the burglar represents some body who might reasonably request access such as a water, gas or electricity supplier. There is no separate legal definition of this variant.
is authority for the proposition that the defendant must at least be reckless as to whether his entry is a trespass. For the Section 9(1)(a) offence, proof beyond reasonable doubt is required that the defendant intended to commit the offence specified as part of the burglary. In the Section 9(1)(b) offence, the mens rea is that of the offence committed, such that, for example, if grievous bodily harm is inflicted, recklessness will be sufficient to establish liability.
.
Burglary comprising the commission of, or an intention to commit, an offence which is triable only on indictment, is triable only on indictment.
Burglary in a dwelling is triable only on indictment if any person in the dwelling was subjected to violence or the threat of violence.
Section 9(3) of the Theft Act 1968
, as substituted by section 26(2) of the Criminal Justice Act 1991, provides that:
The reference in that section to a building which is a dwelling, applies also to an inhabited vehicle or vessel, and applies 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.
A person guilty of burglary is liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum
, or to both.
Minimum
Section 4 of the Crime (Sentences) Act 1997 specified a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances applied. That section is replaced by section 111 of the Powers of Criminal Courts (Sentencing) Act 2000
.
Authorities
Higher courts have consistently upheld lengthy custodial sentences for burglaries of dwellings; see, for example R v Brewster 1998 1 Cr App R (S) 181
of for any shorter term.
replace sections 24 to 27 and 28(4) of the Larceny Act 1916
.
Section 24 created the offence of sacrilege
.
Section 25 created the offence of burglary.
Section 26 created an offence described by its marginal note as "housebreaking and committing felony" (it could be committed in respect of buildings other than dwelling-houses and at the time of its repeal it consisted of committing an arrestable offence
).
Section 27 created an offence described by its marginal note as "housebreaking with intent to commit felony" (and see the words in parentheses above).
At the time of its repeal, section 28(4) created offence of being found by night in any building with intent to commit any arrestable offence (previously felony) therein.
Sections 51 and 52 of the Larceny Act 1861
related to burglary.
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
which created two variants:
"Enters"
Although physical evidence of entry is not normally difficult to obtain, it can be difficult on occasions to decide whether an entry has occurred in law. In R v CollinsR v Collins
R v Collins 1973 QB 100 is a case decided by the Court of Appeal of England and Wales which examined the meaning of "enters as a trespasser" in the definition of burglary...
, it was held that entry had to be "substantial" and "effective". The issue arose in R v Brown 1985 71 Cr App R 15 in which the defendant had been found on the pavement
Sidewalk
A sidewalk, or pavement, footpath, footway, and sometimes platform, is a path along the side of a road. A sidewalk may accommodate moderate changes in grade and is normally separated from the vehicular section by a curb...
outside a shop with the top half of his body through the broken window, sorting though property on display for sale; this was held by the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
to constitute an effective entry, while regarding the use of the word "substantial" as unnecessarily wide. It was ruled that the jury had been entitled to conclude that the entry had been effective. Furthermore, in R v Ryan 1996 160 JP 610, the defendant had been found partially within a building, having been trapped by a window, and argued that this was not a sufficient entry. However, he was convicted as it was held that a partial entry was sufficient and that it was irrelevant that he was due to circumstances incapable of stealing anything.
"Building or part of a building"
The Theft Act 1968 does not define a building, so this must be a matter of fact for the jury, however Section 9(3) specifically states that the term includes an "inhabited vehicle or vessel"; hence motor homes, caravans and houseboats are protected by the section even when temporarily unoccupied.Burglary can also be committed in "part of a building" and in R v Walkington 1979 1 WLR 1169 the defendant had entered a large shop during trading hours but went behind a counter and put his hand in an empty till
Cash register
A cash register or till is a mechanical or electronic device for calculating and recording sales transactions, and an attached cash drawer for storing cash...
. The court held that he had entered that part of the building normally reserved for staff as a trespasser with intention to steal money and was therefore guilty of burglary.
"As a trespasser"
The essence of trespassTrespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
is entering or remaining another's property without authority; a person having permission to enter property for one purpose who in fact enters for another purpose may become a trespasser, and in R v Jones and Smith, a defendant who had a general permission to enter his father's home became a trespasser when he did so in order to steal a television set, because doing so was inconsistent with the general permission. In recent years, the terms "distraction burglary", "artifice burglary" and "burglary by trick" have been used in crime prevention circles when access to premises is granted as a result of some deception on the occupier, usually by a pretence that the burglar represents some body who might reasonably request access such as a water, gas or electricity supplier. There is no separate legal definition of this variant.
"With intent"
The intention to commit an offence (Theft, Grievous Bodily Harm or ,for S9(1)(a), Criminal Damage) , being an essential element of burglary, requires proof beyond reasonable doubt. For example, if entry is made to regain property which the defendant honestly believes he has a legal right to take, there is no intention to steal and the defendant is entitled to be acquitted. However, it has been held that a conditional intent to steal anything found to be of value is enough to satisfy this requirement.Mens Rea
R v CollinsR v Collins
R v Collins 1973 QB 100 is a case decided by the Court of Appeal of England and Wales which examined the meaning of "enters as a trespasser" in the definition of burglary...
is authority for the proposition that the defendant must at least be reckless as to whether his entry is a trespass. For the Section 9(1)(a) offence, proof beyond reasonable doubt is required that the defendant intended to commit the offence specified as part of the burglary. In the Section 9(1)(b) offence, the mens rea is that of the offence committed, such that, for example, if grievous bodily harm is inflicted, recklessness will be sufficient to establish liability.
Mode of trial
Subject to the following exceptions, the offence of burglary is triable either wayEither Way
"Either Way" is a song by The Twang, which was released as their second single under the B-Unique Records on May 28, 2007, and it is also the second single to be taken from the band's debut album Love It When I Feel Like This...
.
Burglary comprising the commission of, or an intention to commit, an offence which is triable only on indictment, is triable only on indictment.
Burglary in a dwelling is triable only on indictment if any person in the dwelling was subjected to violence or the threat of violence.
Sentence
MaximumSection 9(3) of the Theft Act 1968
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
, as substituted by section 26(2) of the Criminal Justice Act 1991, provides that:
The reference in that section to a building which is a dwelling, applies also to an inhabited vehicle or vessel, and applies 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.
A person guilty of burglary is liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum
Prescribed sum
The prescribed sum is the maximum fine that may be imposed on summary conviction of certain offences in the United Kingdom. In England and Wales and Northern Ireland, it is now equivalent to level 5 on the standard scale, which it predates...
, or to both.
Minimum
Section 4 of the Crime (Sentences) Act 1997 specified a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances applied. That section is replaced by section 111 of the Powers of Criminal Courts (Sentencing) Act 2000
Powers of Criminal Courts (Sentencing) Act 2000
The Powers of Criminal Courts Act 2000 is a consolidation Act of the Parliament of the United Kingdom that brings together parts of several other Acts dealing with the sentencing treatment of offenders and defaulters...
.
Authorities
Higher courts have consistently upheld lengthy custodial sentences for burglaries of dwellings; see, for example R v Brewster 1998 1 Cr App R (S) 181
Aggravated burglary
Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm, imitation firearm, weapon of offence, or any explosive"."Has with him"
In R v Kelt 1977 65 Cr App R 74 it was held that this phrase will normally mean mean "carrying", and in R v Klass 162 JP 105, The Times, 17 December 1997 (CA) others had entered a building for criminal purposes while the defendant remained outside, but in possession of a scaffolding pole which had been used to break a window. This did not, in law, constitute an entry for the purposes of burglary. It was held that since Klass had not himself entered the building, he was guilty of burglary and not aggravated burglary."At the time"
- In R v O'Leary 1986 82 Cr App R 337, the defendant entered a house unarmed but picked up a kitchen knife once inside; he then used it to force the occupier to hand over property. It was held that this constituted aggravated burglary because the offence which was part of the enterprise had been committed while in possession of the weapon.
- In R v Kelly, 1992 The Times, December 2, the defendant had used a screwdriver to gain entry; once inside the premises, he was confronted by the occupiers and used the screwdriver as a weapon to force them to hand over a video recorderVideo recorderA video recorder may be any of several related devices:*Digital video recorder ; Personal video recorder *DVD recorder*Videocassette recorder *Video tape recorder...
. It was held that the screwdriver became an offensive weapon when he formed an intention to use it for causing injury to the occupier at the time of the theft, and therefore he was guilty of aggravated burglary.
Mens Rea
It is necessary to prove that the defendant was aware of his possession of a weapon to convict of aggravated burglary. In R v Russell 1984 Crim L R 425, the defendant was found in possession of a knife but had forgotten that he had it; it was held that he was not guilty of aggravated burglary. A plea that the defendant did not intend to use the weapon is not a defence to this charge (R v Stones 1989 1 WLR 156).Mode of trial and sentence
Aggravated burglary is an indictable-only offence. It is punishable with imprisonment for lifeLife imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
of for any shorter term.
History
Sections 9 and 10 of the Theft Act 1968Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
replace sections 24 to 27 and 28(4) of the Larceny Act 1916
Larceny Act 1916
The Larceny Act 1916 was an Act of the Parliament of the United Kingdom. Its purpose was to consolidate and simplify the law relating to larceny triable on indictment and to kindred offences ....
.
Section 24 created the offence of sacrilege
Sacrilege
Sacrilege is the violation or injurious treatment of a sacred object. In a less proper sense, any transgression against the virtue of religion would be a sacrilege. It can come in the form of irreverence to sacred persons, places, and things...
.
Section 25 created the offence of burglary.
Section 26 created an offence described by its marginal note as "housebreaking and committing felony" (it could be committed in respect of buildings other than dwelling-houses and at the time of its repeal it consisted of committing an arrestable offence
Arrestable offence
Arrestable offence is a legal term now obsolete in English law and the legal system of Northern Ireland, but still used in the legal system of the Republic of Ireland. The Criminal Law Act 1967 introduced the category to replace the ancient term felony...
).
Section 27 created an offence described by its marginal note as "housebreaking with intent to commit felony" (and see the words in parentheses above).
At the time of its repeal, section 28(4) created offence of being found by night in any building with intent to commit any arrestable offence (previously felony) therein.
Sections 51 and 52 of the Larceny Act 1861
Larceny Act 1861
The Larceny Act 1861 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland . It consolidated provisions related to larceny and similar offences from a number of earlier statutes into a single Act...
related to burglary.