Burglary The offence of burglary is set out in ss.9 and 10 of the Theft Act 1968.

. A person is guilty of burglary [s.9] 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 ( ! 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 grie"ous bodily harm.

 Although commonly regarded as a property offence because it involves an element of trespass but this offence need not in"ol"e any unlawful ac#uisition of property by $ and may in fact involve trespass in order to commit an offence against the person. [inflict gbh] !n recognition of the fact that the impact upon " of a burglary may often involve an in"asion of personal space or assault rather than a loss of property the offence now carries two different ma#imum penalties depending on whether the burglary too% place in a dwelling house (1& years! or in commercial or other premises (10 years!. Burglary of someone's house is therefore regarded as a more serious offence $ because of the personal impact upon a victim than burglary of some other premises %such as a school or a factory& where the victim is more li%ely to ha"e merely lost property or had property damaged.

 There are essentially three types of burglary which will be outlined below but all three have the common actus reus re#uirement that $ enters a building or a part of a building as a trespasser.

Actus (eus !n order to be guilty of burglary ' must enter a building or part of a building as a trespasser. The following (uestions must be as)ed therefore in connection with both forms of the offence. )as there an entry* +f yes, $id the person entering enter as a trespasser* +f yes, )as the entry to a building or part of a building*

1. -ntering a building or part of a building as a trespasser The re(uirement that $ 'enters' a building has been a contentious element of this offence. *ection 9 merely uses the word +enters+ but does not specify what this may mean in different circumstances. The courts have therefore had to consider whether '+s whole person must enter a building %or whether a part of '+s body would suffice& and whether entry can be made using another person or an instrument.

.ull entry is not re#uired but need Substantial and effective [restricted in the case below]- V invite him when he still outside considered not yet substantial and effective entry /ollins [,9-.] ' who was na)ed %e#cept for his soc)s& climbed up a ladder and onto the windowsill of "+s bedroom intending to have se#ual intercourse with " %with or without her consent&. " thin)ing ' was her boyfriend invited him into her bedroom where ' and " had se#ual intercourse. /nly after this did " realise that ' was not her boyfriend and ' was accused of burglary under s.9%,&%a& of the Theft Act ,9-0.

 Although ' eventually entered the building in order to have se# with " in order to be guilty of burglary he had to have entered as a trespasser. !t was not clear from the evidence in this case whether " had invited ' in while he was on the outer windowsill of the bedroom or whether he had climbed onto the inner windowsill. The court therefore had to consider whether when he was on the outer windowsill he had +entered+ the building. The 1ourt of Appeal stated that full entry of $'s entire body was not necessary. 2hat was re(uired was a +substantial and effective entry+. The 3ury had not been properly directed to consider this and so '+s conviction was (uashed.

 The implication made by the 1ourt of Appeal was that had $ still been on the outer windowsill at the time that 0 in"ited him in then he would not ha"e made a substantial and effecti"e entry at the time that he was a trespasser. The direction in 1ollins on the issue of +entry+ into a building has been modified and rela1ed in subse#uent cases.

Brown [,904]$ substantial no important but effecti"e$ effective even though feet on outside Brown ' had leaned through a bro)en shop window and was found rummaging around for goods. The 1ourt of Appeal in Brown said that the word 'substantial' was of no assistance and that the test is whether the entry is 'effecti"e'. !n this case $ had made an effecti"e entry for the purposes of burglary e"en though only the top part of his body had entered the shop and his feet remained on the ground outside.

(yan [,995]$ even effective if in fact he cannot steal anything while part of his body trapped inside the window 2effecti"e add no meaning anymore3 ' leaned inside a window but became trapped with only his head and right arm inside the window. Ryan was held to have made an 'effecti"e' entry e"en though he was not able to steal anything as only his head and right arm were inside the window and both were trapped.

1ommentary: The decision in Ryan does not rest easily alongside the decision in Brown as it is difficult to see how Ryan's entry was in any way effective for the purposes of burglary. The courts have provided a test for entry: it must be +effective+ but it is still not clear what the word +effective+ means here and what the entry needs to be effective for. 6ote that entry for the purposes of burglary does not ha"e to be forced and the offence is no longer described as 'brea%ing and entering'.

!f ' did not enter then no burglary *uppose then that A while remaining outside the building uses some instrument to withdraw property from the building or A guilty of burglary when the bullet from his gun, fired from the highway, enters the "ictim4s house* !f regard is paid to the wording of s.9 it would appear that these two illustrations cannot constitute burglary. A person is guilty of burglary if 5he enters6 with certain intents, or 5ha"ing entered . . . he7 commits certain offences. To hold that 8he7 enters or has entered when an instrument is inserted by him would seem to be at odds with what the section e1pressly re#uires.

9eaning of :building; included inhabited "ehicle or "essel ' must enter a building or a part of a building. 7ection 9(8! gives some further guidance on what constitutes a building by stating that a building includes: An inhabited "ehicle or "essel... at times when the person ha"ing a habitation in it is not there as well as at times when he is. This would therefore include a cara"an or a houseboat which is inhabited. 7o, if ordinary car without inhabited, then it is e1cluded 9orry used as a store with electric supply still not a building Norfolk Constabulaiy " Seeking and Gould

9eaning of :building; included uninhabited building provided is permanent and complete and even included :container free<e; /ther uninhabited structures may also be buildings though such as a barn or garage. The definition can be rather wide as illustrated by the case of B and 7 " 9eathley [,9-9] in which a free:er container that had been placed in a farmyard for goods storage with loc%ed doors which had been resting on sleepers for two or three years connected to mains electricity was held to be a building. Argument: merely rest on railway sleeper that mean no permanent foundation 2re;eceted by court3

 The particular points of fact relied on to designate the free:er container as a building were: %,& the container was about .4 feet long with - feel s(uare cross$section 2considerable si:e3 weighed about three tons and had been in position for two or three years. The owner intended to lea"e it there for the foreseeable future. !t was therefore 8a structure of considerable si:e and intended to be permanent or at least to endure for a considerable time7 Steven v Gourley %.& its doors were e#uipped with loc%s to )eep trespassers out; and %=& it was connected to an outside source of electricity.

 The structure needs to be relatively permanent %Royal Exchange Theatre Trust v The Commissioners [,9-0]& and complete % anning and Rogers [,0-,]& so the foundations of a building without complete walls or a roof would not suffice. Tent may not permanent

:>art of building; must have permission *ection 9 specifies that burglary may be committed where $ has entered 'part of a building'. This may be important where $ has permission to be in one part of a building but enters another part where he is trespassing. This was the case in )al%ington [,9-9] $ was in a shop and went behind a mo"eable counter in the shop to put his hands in the till . <e was permitted to enter the shop and so, in order to be guilty of burglary he would have had to enter a part of the building as a trespasser. !n this case ' was held to have done so as he entered a part of the building (behind a mo"eable

counter! from which $ %new the public were e1cluded.

Extend application +f someone as customer autorised to be at =, if he want to go to > to steal, e"en he caught in the middle way, ?, he still be will liable e"en though ? is not his destination if =, ? and > is connected one as part of building +f ? and > is not connected as part of building, he only will be liable trespass to ? but not burglary since he did not intent to conduct crime @in the building4 2he only intent to commit in > but not ?3

:?nter as trespass; without permission @inally $ must enter as a trespasser. Trespass is not a criminal offence but a tort %a civil wrong& and the word bears its civil law meaning in the Theft Act ,950. Ander civil law a trespass is committed where $ intentionally, rec%lessly or negligently enters the property without the owner or occupier's consent. (ec%less applied /unningham, ("A @or the purposes of burglary it must be a building or part of a building that is entered and $ must not ha"e consent of the occupier or owner at the time that he enters. As we saw above /ollins may not ha"e entered as a trespasser if he had been in"ited in before he crossed the threshold between the outer and the inner windowsill. !f " invited him in as he was on the outer

sill then he entered as an invitee with permission and was therefore not a trespasser.

ay exceed what was permitted then considered as trespass The courts have stretched this point further in the case of Bones and 7mith [,9-5]. !n this case $ entered his father's house, with his father's permission. /nce inside $ and his friend stole two tele"isions. ' was con"icted of burglary on the grounds that he had e1ceeded his father's permission to enter the house because at the time that he entered he intended to steal. The father's permission to enter the house did not e1tend to permission to enter a house to steal something. $ had therefore intentionally entered as a trespasser as he %new that his father did not

consent to his entry to the house for this purpose. Commentary! This has substantially widened the actus reus of burglary as any defendant who enters a building intending to commit an offence even with permission is li%ely to %now that that permission will be e1ceeded by the commission of the offence. !t could be argued for e#ample that /ollins e1ceeded the in"itation by 0 to enter her bedroom since at the time of entry he intended to ha"e se1ual intercourse with her without her consent and he %new that this e1ceeded her permission to enter. Another point is 7ub;ecti"e "iewC +f $ mista%enly belie"e he has the consent, then he will not be liable -"en e1ceeding consent, he must %new it and of course $

definitely will %now steal in someone house will be e1ceeding consent

"urther extending the application! can be even liable even entering the supermar#et with intent to offence 2here B is charged under s.9%l&%b& it would seem that mens rea to entry as a trespasser is not needed until the moment the crime is committed. *o that if B enters a building thin)ing he has the consent to enter it would suffice that he realised that he did not ha"e consent by the time he committed the theft inside. Asually a trespasser enters by stealth but it is by no means un)nown for a person to gain entry by tric)ing the owner into giving his assent to entry. 'oes this mean that if B enters a supermar)et intending to steal from within he commits burglary as he entersC = %nows that if the shop%eeper %new of his intentions he would not allow him into the shop.

 The ma3or difficulty here is that the 3ury will have to be sure that he had that intention when he entered the store it is normally will be approved by what he brought into the supermar)et Dnly difficult here is to pro"e the intention of defendant to commit crime +f can, then definitely $ will be con"icted as burglary

.. Dffence 1C s.9%,&%a&$ burglary convicted as enter as trespasser with intent to commit theftEinflict AB<Ecriminal damage /nce the essential actus reus elements above are satisfied the Theft Act ,950 sets out three ways in which burglary can be committed. @irstly under s.9%,&%a& if ' enters a building or part of a building as a trespasser with intent to commit one of the ulterior offences listed in s.9( ! then he may be guilty of burglary e"en though the ulterior offence is not committed. The relevant ulterior offences are: Theft (steal smtg! inflicting AB< criminal damage.

 As intent to commit one of the ulterior offences is re(uired burglary is a specific intent crime. This may be important where ' is into#icated and pleads the defence of into1ication +nto1ication pro"ide defence for specific crime as long as satisfied the re(uirement

s.9%,&%b&$ actual commit the offence of stealing or inflict gbh The second form of burglary in s.9%,& %b& occurs where ' enters a building or part of a building as a trespasser and actually commits one of the subsidiary offences set out in s.9(1!(b! which are: theft or attempted theft (stealEattempt to steal! infliction or attempted infliction of AB<. All actus reus and mens rea re(uirements of the ulterior offence must be established for the charge of burglary. *o where $ enters a building as a trespasser and once inside steals he may be guilty of both theft and burglary. 6ote that criminal damage is not a subsidiary offence for the purposes of s.9%,&%b& although it is for s.9%,&%a&.

8. Dffence C Trespass with intent to commit a se1ual offence *e#ual /ffences Act .DD= rape was removed from s.9%,&%a& of the Theft Act ,950 and replaced with a new and separate offence of trespass with intent to commit a se#ual offence. The offence is defined in s.68 of the 7e1ual Dffences Act 008 as follows: A person commits an offence if: he is a trespasser on any premises he intends to commit a rele"ant se1ual act %i.e. one contained in >art ! */A .DD=& he %nows that or is rec%less as to whether he is a trespasser.

 This is significantly wider than burglary since it covers any of the new se#ual offences %including but not limited to rape& created in >art ! of the .DD= Act %see 1hapter ,D&. <owe"er, for this syllabus only in"ol"e rape in se1ual offence This offence also does not re(uire an entry into a building or part of a building but merely that $ is %nowingly or rec%lessly trespassing in 'premises+ which may include a building but is much wider and may also include nonFtemporary structures or simply ;ust land. The ulterior se1ual offence need not be committed but $ must ha"e the intent to commit the offence at the time that he is trespassing.

1onditional !ntent is enough This range of specified offences is wider under s.9(l!(a! than under s.9(l!(b!. As determined in Attorney$Eeneral;s Feferences %6os , and . of !9-9& is a conditional intent will suffice in relation to the s.9(l!(a! offence. Thus where $ enters a building as a trespasser intending to steal 2criminal damageEinflict gbhErape3 if he finds any item of value [find no propertyGpeopleGwoman] but in fact nothing then a sufficient intent for burglary has been made out

Dffence 8C Aggra"ated burglary A third and more serious form of burglary is set out in s.10 of the Theft Act 1968. The actus reus and mens rea elements of this offence are identical to those of the standard burglary offence in s.9 with an additional actus reus element that $ at the time of committing the burglary, has with him one or more of the following (10!(1!C a firearm or imitation firearm a weapon of offence an e1plosi"e. This more serious offence carries a higher ma1imum penalty in view of the potential harm that ' might cause if he were to use one of these forms of weapons.

 7.(10!(1!C %a& 'firearm4 includes an airgun or air pistol and +imitation firearm; means anything which has the appearance of being a firearm whether capable of being discharged or not; and %b& 'weapon of offence4 means any article made or adapted for use for causing in;ury to or incapacitating a person or intended by the person ha"ing it with him for such use; and %c& 'e1plosi"e4 means any article manufactured for the purpose of producing a practical effect by e1plosion or intended by the person ha"ing it with him for that purpose.

9ust with the weapon when committing burglary within (9!(1!(b! .rancis Their Hordships clearly stated that if at the time of entry @rancis had with him a weapon of offence he was guilty of aggra"ated burglary. 6ote that it seems apparent that where $ enters with a weapon of offence but lac%ing an intent to steal then discards the weapon of offence inside the building then decides to steal, liability will e1ist for burglary but not aggra"ated burglary. Act stated the @weapon4 must with him when commit burglary

?ven no liable if one of man brought the weapon but not enter the :building; if another one commit burglary Glass The defendant and two other men one of whom had a piece of pole in his hand wrenched open the door of a cara"an and demanded money from the occupant who told them he did not have any. The man with the pole then hit the occupant of the caravan over the head and pursued him as he ran away hitting him repeatedly. 2hen the defendant subse(uently arrested he admitted being outside the caravan %building& but denied entering it.

 1/A held that the purpose of s.,D was to deter people from ta)ing weapons into buildings and other people;s houses while committing burglary @or e#ample the fact that a getaway dri"er had a weapon with him in the car would not be sufficient to turn an offence of burglary into one of aggra"ated burglary. !n the circumstances the conviction of aggravated burglary had to be (uashed. To commit an offence of aggravated burglary a person must ha"e with him a weapon of offence at the time of entry %for s.9%l&%a& type of burglary&. The offence could not be committed if the weapon was not being carried by one of the people effecting entry to the building

2eapon must with ' when actually commit the ulterior offence within s.9(1!(b! e"en unarmed during entry 2here the s.9%l&%b& variety of burglary is committed by which a defendant enters as a trespasser then commits the ulterior offence of stealing or grievous bodily harm upon " the relevant time to evaluate whether an article of aggravation is carried will be the very time he actually commits the ulterior offence. This was laid down by the court in D49eary The defendant entered unarmed as a trespasser into a dwelling$ house. 7ubse#uently he pic%ed up a %nife from the )itchen and proceeded upstairs where he was confronted by the occupants a husband and wife.

 <e inflicted in;uries on the occupants and also stole cash and a bracelet.

 The 1ourt of Appeal held that the time at which a defendant must be proved to have with him a weapon of offence to ma)e him guilty of aggravated burglary was the time at which he actually stole; i.e. in the instant case when he confronted the householders and demanded their cash and 3ewellery which was the theft when he still had the )itchen )nife in his hand. *imilar principles were applied in Ielly where a screwdriver was used as a weapon of offence inside a dwelling$house.

$ must aware the present of the weapon at the time of burglary The defendant must actually %now that heF has the weapon, for e#ample a flic) )nife with him at the relevant time; see e.g. Cugullere %,95,& !t does not constitute 5%nowingly7 where $ has forgotten the e1istence of the weapon for e#ample a cosh ; Russell [,904]

!ncluded even where ' had no intent to use the weapon during burglary as long as it is intended to use against someone !t is not a prere#uisite for the offence of aggravated burglary that the prosecution need demonstrate that the article of aggra"ation was intended to be actually used by the defendant during the burglary. 7tones The defendant was arrested when running away from a house that he had burgled. A search revealed that he was carrying a household %nife which he claimed was 8for selfFdefence because some lads from Blyth are after me6. Jis con"iction for aggra"ated burglary was upheld.

 !n his leading 3udgment Elidewell H.K. held that the mischief at which the section was aimed was that if a burglar had a weapon of offence with him which he intended to use to in;ure some person unconnected with the premises burgled, he might be 5tempted to use it if challenged during the course of the burglary;.

7ummary !n this section we have outlined the three ways in which a burglary may be committed as well as the new offence of trespass with intent to commit a se#ual offence which replaces the offence of burglary where ' intends to commit a se#ual offence whilst trespassing. @or all of these offences $ must be a trespasser under ci"il law. @or the standard and aggravated offences of burglary $ must also enter a building or part of a building as a trespasser. /nce these elements have been fulfilled ' must either intend to commit one of the ulterior offences set out in s.9(1!(a! or actually commit an ulterior offence committed in s.9(1!(b! and for aggra"ated burglary he must do this whilst in possession of a weapon.

 The new se#ual offence also involves trespass but of premises %which may include a building but e#tends further& and there must be an intention to commit a se#ual offence in >art ! of the *e#ual /ffences Act .DD=. The ulterior se1ual offence need not actually be committed.