Actus reus of burglary - Lecture notes 7 PDF

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Actus reus of s9(1)(a) burglary The actus reus of section 9(1)(a) burglary is deceptively simple: entry to a building, or part of a building, as a trespasser. However, within this, areas of complication have arisen: A) Entry: D ‘enters’ a building, or part of a building, if any part of her person crosses the threshold. In the case of Collins,113 discussed in the following section, Edmund Davies LJ said that entry must be ‘effective and substantial’. However, such terms are not useful, as they erroneously suggest that D must have fully entered or that her entry must be such that she could commit the intended offence. As illustrated in Ryan, such a degree of entry is not required.114

Ryan [1996] Crim LR 320 D attempted to break into V’s house but became wedged in the kitchen window with his arm and head inside the building. D was charged with section 9(1)(a) burglary. • Crown Court: guilty of burglary. • Court of Appeal: conviction upheld on appeal. Although most of D’s body was not inside the building, and although he was not in a position to commit the intended offence, the jury were still entitled to find a valid entry. Under the (pre-1968) common law, entry could also be found indirectly as where D used an instrument such as a long hook rather than her body to enter the building. It is uncertain whether such conduct could constitute entry under the current law, and there is no authority directly on this point. In such cases, where D uses the instrument to commit the intended offence (eg theft), it is better to charge that intended offence rather than burglary, or an attempt of the intended offence where it is not carried out.115 B) Building or part of a building: The word ‘building’ is given its ordinary meaning by the courts.116 However, a judge must still advise the jury whether the structure entered by D is capable of being found to be a building. This is not always straightforward. A standard house is clearly a building whether occupied or not, as are work buildings; outhouses; sheds; and so on. The term has been interpreted broadly to include part-built or damaged structures, as well as semi-permanent containers.117 Section 9(4) also extends the term to include ‘inhabited’ vehicles or vessels whether occupied or not, which includes caravans, houseboats, and so on. However, where the vehicle or vessel is not inhabited, or the structure is insufficiently permanent (eg a tent), a court may find that there is no building and therefore no burglary.118

Don’t be confused … The orthodox interpretation of a ‘building’ includes the entire structure. Where D breaks into Flat 1 in order to gain access to Flat 2 to commit theft, D commits section 9(1)(a) burglary at the point of entry to the building that houses the two flats (we do not have to wait until she enters Flat 2).119 Reference to ‘part of a building’ is included to deal with cases where D has permission to enter the building (eg the shop) but not into certain areas (eg behind the counter).120 Where such areas constitute ‘part of a building’, D may be liable under section 9(1)(a) for entering them as a trespasser with the required mens rea. As with the definition of

‘building’, there are core examples such as separate rooms within a house or hotel; behind a shop counter; etc, but there will also be uncertainty, as with a roped-off area within a shop.121 C) As a trespasser: Where D enters a building without permission from the owner or possessor, or the owner or possessor’s family, or some other legal authorisation,122 she enters as a trespasser. Trespass is a tortious concept, but its definition in the criminal law need not be identical to that in tort.123 Whether D is a trespasser will usually be clear, but two cases should be highlighted. First, where V mistakenly permits D to enter (eg V thinks D is the plumber), D enters as a trespasser.124 Secondly, where D enters in excess of her permission, she is also trespassing. This is illustrated in Jones and Smith.

Jones and Smith [1976] 3 All ER 54 D and another entered his father’s house, at night, with the intention to steal. D had a general permission to enter, but not for the purposes of stealing. D was charged with burglary. • Crown Court: guilty of burglary. • Court of Appeal: conviction upheld on appeal. D entered the building in excess of the general permission given by his father, thus as a trespasser. The logical conclusion from this is that D commits burglary whenever she enters a shop with intent to steal: she is a trespasser because her permission to enter does not extend to entry for the purposes of theft.125 This seems correct on the law. However, prosecutors have been, and are likely to remain, reluctant to prosecute shoplifting as burglary unless D enters a specifically restricted area within a shop.126

Extra detail … Interesting problems emerge where D enters with permission which is subsequently withdrawn. Where D fails to leave in a reasonable time, she becomes a trespasser. However, as she has not ‘entered’ as a trespasser, we would still need some kind of crossing (eg into a new area of the building) as a trespasser in order for D to be potentially caught within burglary....