Topic 14

1. Topic 14 Burglary

2. Introduction Burglary is defined in the Theft Act 1968. According to s.9(1), a person is guilty of burglary if: he or she enters any building or part of a building as a trespasser and with intent to commit any such offence as mentioned in s.9(2) (stealing, inflicting grievous bodily harm or causing criminal damage), or (b) having entered any building or part of a building as a trespasser, he or she 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

3. Actus reus (1) Entry The actus reus of burglary requires the defendant to have entered the building (R v Collins, 1973; R v Brown, 1985; R v Ryan, 1996).

4. Actus reus (2) The definition of building The type of building that is burgled affects the length of sentence that the defendant will receive. ‘Building’ is discussed in s.9(4) of the Theft Act 1968: ‘References in subsections (1) and (2) above to a building…shall also apply 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.’

5. Actus reus (3) • Stevens v Gourley (1859) • Judge Byles defined a building as ‘a structure of considerable size and intended to be permanent or at least endure for a considerable time’.

6. Actus reus (4) Part of a building: R v Walkington (1979) The defendant went into a department store. He went behind the till to look in an open cash register. When he saw that there was nothing in it he closed the drawer. The defendant was charged with burglary under s.9(1)(a). His conviction was upheld, as the Court of Appeal believed that what constitutes ‘part of a building’ is a question of fact for the jury to decide.

7. Actus reus (5) The requirement of a trespass If the defendant has permission to enter a building or part of a building, he or she is not a trespasser. However, the defendant will be a trespasser if he or she goes beyond the permission given to him or her. In R v Jones and Smith (1976), the defendant had permission to enter his parent’s house, but when he did so in the middle of the night with his friend and took two television sets, the court held that he was a trespasser. The Court of Appeal said: ‘A person is a trespasser if he enters premises of another knowing that he is entering in excess of the permission that he has been given to him to enter, or being reckless whether he is in excess of that permission.’

8. Mens rea The mens rea of burglary requires the defendant to either intend or be reckless that he or she is a trespasser. In order to have the mens rea for s.9(1)(a), he or she must intend to commit one of the ulterior offences in s.9(2) – causing criminal damage, stealing or inflicting grievous bodily harm. Section 9(1)(b) requires that the defendant have the required mens rea for the offence when he or she commits it or attempts to commit it. He or she need not have the mens rea for the offence at the time of entry.

9. Evaluation • There is no definition of ‘building’. • The ‘ulterior offences’ are confusing for the jury. • The interpretation of ‘entry’ and ‘trespasser’ has changed many times.