#4619 - Burglary - GDL Criminal Law

Section 9 Theft Act 1968:

Distinguishing 9(1)(a) from 9(1)(b)

• For 9(1)(a) burglary – the D must enter as a trespasser – with the intention to steal, inflict GBH or unlawfully damage property (ulterior offence)– burglary is committed at the point of entry

  • Doesn’t matter if the D goes on to commit the ulterior offence – as long as the D intended to commit the offence at the point of entry

• For 9(1)(b) – the D must have entered as a trespasser and once inside, actually steal or attempt to steal or inflict or attempt to inflict GBH – burglary is committed at the point of commission or attempted commission of the ulterior offence

• Sentencing is the same for both – matter of evidence which one the prosecution decides to charge

Section 9(1)(a)

AR:

1. That the D “enters”

2. “a building or part of a building”

3. “as a trespasser”

MR:

4. Knowing or being reckless as to his entry as a trespasser; and

5. At the time of entry D intended to (i) steal (ii) to inflict GBH on any person or (iii) to damage unlawfully the building or anything therein (see 9(2))

When is the offence committed?

• Complete upon entry – provided it is accompanied with intention to commit ulterior offence

AR

• Enters

• Old Common Law rule - entry was satisfied when any part of a person’s body entered a building (or part of a building) – Davies (1923) – no matter how small – any part of a body, however small

• R v Collins – Jury must be satisfied that entry was ‘effective and substantial’ … narrow definition – whole body had to be within the body

• R v Brown – CA declined to follow ‘limited’ meaning from Collins – D was seen with body partially inside a front shop display – appeal dismissed – CA said that ‘substantial’ was not helpful – entry need only be ‘effective’

• R v Ryan – D became stuck by his neck in the window – so was not effective OR substantial – court said that it was irrelevant whether or not the accused was capable of stealing - so didn’t need to be ‘effective’ or ‘substantial’ – jury must decide whether there had been an entry

• Smith & Hogan think that leaving ‘entry’ up to the jury is insufficient – best course would be to accept the continued existence of the common law rule – i.e. that entry of any part of the body, however small, will suffice

• Building or part of building

1. Building

• Theft Act only contains a partial defence of this element – 9(4) – building for the purposes of 9(1) and 9(2) includes an inhabited vehicle or vessel – whether the person is living there at present or not

• Stevens v Gourley – building must be of ‘a structure of considerable size and intended to be permanent or at least endure for a considerable time’

• B and S v Leathley - a freezer container used to store frozen food which was detatched from its chassis and was resting on railway sleepers - it had been there for 2 years and was fitted with electricity – 25x7 ft – held to be a building

  • Norfolk Constabulary v Seekings & Gould – 2 similar containers – still on their wheeled chassis – positioned at the rear of a supermarket – for temporary storage – were not buildings despite having electricity– not sufficient permanence – only way burglary could be committed was if they were inhabited (9(4))

2. Part of a building

• R v Walkington – question of fact for the jury to decide – here it was clear that the D knew he was not allowed into the till area behind a three-sided counter – so jury found that he HAD entered part of a building – 2 parts of the building (where D was entitled to be and where he was not)

• As a trespasser

1. No consent

• Borrow laws from tort – trespass where the building or part is entered is in the possession of another, who does not consent to the entry

• Where at the time of entering a person is NOT a trespasser but later becomes one – there can be NO conviction for burglary – R v Laing

2. Entry in excess of authority

• R v Collins – invitation by victim to enter her bedroom for sex precluded trespass for burglary – but at the times the D can still be a trespasser even if he was given consent to enter

• R v Jones & Smith – J and S entered the home of S’s father and stole 2 TV sets – court held that this was in excess of permission given them – court was satisfied that it was vs. the consent or in excess of the consent given by Mr Smith to his son

MR

• Enters knowing or being reckless that the entry was a trespass

• D must either know or be reckless to the facts which made him a trespasser – it need not be proved that he knew in law that he was a trespasser

• Collins - ‘If she in fact appeared to be welcoming him, the Crown do not suggest that he should have realised or even suspected that she was so behaving because, despite the moonlight, she thought he was someone else.’

• Intended to commit one of the ulterior offences contained in s9(2) at the time of entry

• Must be proved that upon entry the defendant intended to commit one of the ulterior offences in 9(2) – must either:

1. Intend to steal from therein;

2. Intend to inflict GBH on any person therein; and/or

3. Intend unlawfully to damage the building or anything therein

Conditional intent- if the D’s intention is simply to look around and steal only if there is something worth stealing – this has been held to satisfy 9(1)(a) – A-G References (Nos 1 & 2)

Section 9(1)(b)

Prosecution must establish:

AR:

1. That the defendant ‘entered’;

2. A ‘building or part of a building’;

3. As a ‘tresspasser’

4. Steals or attempts to steal OR inflicts/attempts to inflict GBH

MR:

5. Knowing or being reckless as to his entry as a trespasser; and

6. Did one of the following ulterior offences (Must have the requisite MR):

1. Stole

2. Attempted to steal

3. Inflicted GBH

4. Attempted to inflict GBH

N.B – criminal damage not included in 9(1)(b)

When? – requires that once inside the building, having entered as a trespasser, the D goes on to commit the ulterior offence or attempts to commit the ulterior offence – committed at the time of the commission or attempted commission of the ulterior offence

• If the ulterior offence is theft then the D must have the full AR/MR for theft

• But it is infliction of GBH – a number of offences can fall within 9(1)(b):

  • S18 OAP 1861

  • S20 OAP

  • S23 OAP

  • There is authority which says that no MR is required at all for GBH – R v Jenkins- CA suggested that from the wording of the statute the infliction of GBH within s9(1)(b) can be committed without any corresponding mens rea

    • Infliction of GBH – causation issue – if you have caused GBH then this is enough: e.g. entering a property and someone suffers a stroke – you have caused it by your entrance – so factual causation – ‘having entered the building he inflicts or attempts to inflict’ – doesn’t mention ‘the offence’ of GBH or mention MR

    • Jenkins – HL quashed CA’s decision but not on these grounds – didn’t mention it

    • Smith & Hogan – criticism of Jenkins – thinks that you should need the MR – legal certainty

AGGRAVATED BURGLARY

S10 TA

• “Weapon of Offence”

1. Any article made or adapted for causing injury to or incapacitating a person

2. Any article which at the time of committing the burglary, the D possesses with the intention of causing injury to or incapacitating a person

• R v Stones – phrase ‘intended by the person having it with him for such use’ – doesn’t impose requirement to prove that the intended use was with respect to that particular burglary

• Item can become a weapon of offence:

  • R v Kelly – K used a screwdriver to break into a house – when surprised by the householder he used it stab the householder...