Burglary 1st year PDF

Preview

Summary

Burglary in the sense of s. 9 (1)(a)/ (b)...

Description

Burglary The offence of burglary is set out in s.9 of the Theft Act 1968. There are two offences of burglary set out under s.9. Burglary under s.9(1)(a) and burglary under s.(9)(1)(b), and a third offence of aggravated burglary set out under s.10 of the Theft Act 1968. 2.1 Section 9(1)(a) A defendant commits burglary under this section if they enter into a building, or any part of a building, as a trespasser, with intent to either: -steal anything in the building; or -inflict grievous bodily harm on any person in the building; or -do unlawful damage 2.1.1 Actus Reus   

Enters; A building or part of a building; As a trespasser

Enters Initially it was considered that entry must be substantial and effective, however the evolvement of case law in this area suggests this is no longer necessary. In R v Brown [1985] smashing a window and leaning through was sufficient for entry and further in R v Ryan [1996] the defendant’s head and right arm being inside the property whilst the defendant himself remained outside was sufficient. Furthermore, in Ryan the defendant was stuck and unable to move, which meant his entry was far from effective, however this did not prevent it from being held to have occurred. Whether or not the defendant will be deemed to have entered the building is a question of fact the jury to decide. A building or part of a building 

Building

The Theft Act 1968 provides no statutory definition of building and for the most part the term is quite self-explanatory, taken as the ordinary meaning of the word. Section 9(4) of the Theft Act 1968 does provide that an inhabited vehicles or vessels will be classed as a building even where they are not inhabited at the time of the offence. For example, a caravan would be classed as such. Case in Focus B & S v Leathley [1979] A lorry container was kept in a farm yard for over two years. It was affixed to sleepers and utilised as refrigeration storage. It was accordingly connected to an electricity supply in order to power the refrigeration system. It was held that for the purposes of the Theft Act 1968 the container should be considered a building. In contrast to the Leathley ruling, Norfolk Constabulary v Seekings & Gould [1986] held that lorry trailers being used as storage during a supermarket refurbishment that were still on wheels despite being stationary for about a year did not amount to a building. It can be suggested from these cases that a building seems require a degree of permanence. 

Part of a Building

Entering part of a building covers situations where there is permission to be in the building, but only certain areas. For example, permission to be in a shop but not in the areas marked ‘staff only’, or permission to be in a restaurant but not the kitchen. The case of R v Walkington [1979] considers that in order to constitute a part of a building it must be physically separated from the rest of the building, however there is no authority that states what this physical separation must constitute and it will be left to a considered argument on the facts of each case. Case in Focus R v Walkington [1979]. The defendant was shopping in Debenhams and came across an unsupervised till which was partially opened. He reached over the counter and fully opened the till but realised it was empty. He was unsuccessfully charged under s.9(1)(a) on the pretence that in reaching over the counter he had entered part of a building with intent to steal. It was held that as the

counter was not physically separated from the rest of the shop it could not constitute a part of a building. As a trespasser This carries the same definition as for civil law trespass. If the owner provides permission to be in the building or part of it then no trespass will occur. This was demonstrated in the case of R v Collins [1973] Case in Focus R v Collins [1973] 3 WLR 243 The defendant climbed up a ladder to an open window. Inside a girl was asleep on her bed, naked. Seeing this, he climbed back down the ladder and removed all of this clothes, bar his socks and climbed back up. The girl woke up and saw him at the window. In the dark, she mistakenly thought he was her boyfriend and invited him in whereupon they engaged in sexual intercourse. She then realised her mistake and panicked, screaming at him to get off. He obliged and quickly ran away. He was charged with burglary under s.9(1)(a) on the basis that he had entered her bedroom as a trespasser with the intent to commit rape. At the time rape was a qualifying offence under s.9(1)(a) and he could not be charged with the offence of rape itself as she had consented to the sexual intercourse. The charge was not upheld as although he held the intention to rape the girl he was not a trespasser as she had invited him in. There may be instances where the defendant has permission to be in the building but exceeds this permission by doing something which they were not invited to do. For example, they may have permission to go to their office after hours to pick up something they left behind at work, but they will exceed that permission by going to your office after hours to steal a computer! Case in Focus R v Jones & Smith [1976] The two defendants together went to the house belonging to one of the defendant’s father. They removed two televisions from the property and were charged with burglary. At trial, the father stated in evidence that his son had his permission to be in the house, however the defendants had exceeded that permission by stealing and were thus trespassers. 2.1.2 Mens Rea

  

Intent to steal, inflict grievous bodily harm or commit criminal damage. At the point of entry Knowing or being reckless as to trespassing.

Intent to steal, inflict grievous bodily harm or commit criminal damage In order for this to be satisfied the mens rea for each of the three qualifying offences must be established. Intent upon entry Section 9(1)(a) is wholly concerned with the intent of the defendant at the point which he enters the building or part of the building as a trespasser. There is no need to prove that the intended offence was actually committed as the intention alone is sufficient. It is vital for this section that the intention is formed at the point in time of entering the building. If a person is already inside the building when they form the intention this will be insufficient and the actus reus will not be established. Knowing or being reckless as to trespassing This is a straight forward element. Often the defendant will know they are a trespasser but they may also be subjectively reckless as to whether they are. If they stumble into the wrong house drunk for example, this is reckless trespassing. 2.2 Section 9(1)(b) A person commits a burglary under this section if, having entered as a trespasser, he steals, attempts to steal anything in the building or inflict or attempts to inflict grievous bodily harm on any person therein. Two things should be noted here: (i) unlawful damage is excluded from this section as a qualifying offence. (ii)The intention to commit one of the qualifying offences does not have to be held at the point of entry into the building. It can be formed by the defendant at a later point. 2.2.1 Actus Reus  

Entry Into a building or part of a building;

 

As a trespasser; Attempt to, or indeed does, steal or inflict grievous bodily harm.

Entry, into a building or part of a building as a trespasser These elements carry the same definition as with the s.9(1)(a) provision. Attempts to, or does indeed, steal or inflict grievous bodily harm. This requires the attempt or the successful completion of one of these two qualifying offences. It is therefore necessary to establish the commission of the offence itself or in relation to the attempt, that the defendant held the mens rea for the offence. In order to do this it is necessary to assess the elements of the offences set out under s.1 Theft Act 1968 (steals or attempts to steal); or s.18 and 20 Offences Against the Persons Act 1861 (inflicts or intends to inflict GBH). 2.2.2 Mens Rea  

Knowing or being reckless as to trespassing Holding the mens rea for either of the qualifying offences

Knowing or being reckless as to trespassing This is applied in the same way as for the s.9(1)(a) offence. Holding the mens rea for either of the qualifying offences This will require establishing either: (i) A dishonest intention to permanently deprive another of property; or (ii) Intention to commit grievous bodily harm; or (iii) Recklessness as to whether grievous bodily harm is committed. 2.3 Aggravated burglary Section 10 of the Theft Act 1968 provides that a person will be guilty of aggravated burglary if he: commits any burglary and at the time of the burglary has with him any firearm or imitation firearm, any weapon of offence or any explosive. “firearm” includes an airgun or air pistol.

“imitation firearm” means anything which has the appearance of being a firearm, whether capable of being discharged or not. “weapon of offence” means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use. “explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose. The point at which the weapon must be possessed for the purposes of the offence depends wholly on whether the charge is under s.9(1)(a) or s.9(1)(b):  

If the charge is under s.9(1)(a) then the possession of the weapon must be effective at the time of entry into the building or part of it as a trespasser. If the charge is under s.9(1)(b) then possession of the weapon need only occur at point in which the qualifying offence is committed, once inside the building.

There is no need to establish any intention to actually use the weapon. Case in focus R v Stones [1989] The defendant was arrested in the middle of committing a burglary. The police searched the defendant and found on his person a knife. Accordingly, he was charged with aggravated burglary. The defendant contended that he had absolutely no intention to use the weapon in the course of the burglary and merely carried it out as a habit of protection as he knew the certain people were after him that he may need to defend himself from. The Court were disinterested in this fact and it was established that possession of a weapon at the time of committing the offence is sufficient for aggravated burglary. There is no requirement of an additional mens rea as to the reason for possession.

Charging and Sentencing The s.9 offences are triable either way and charged under the Theft Act 1968 in conjunction with the relevant sections. In relation to the s.9 offences the

maximum imprisonment is 10 years which rises to14 years in the case of a dwelling property. The s.10 offence is indictable only and carries a maximum sentence of life imprisonment. The sentencing guidelines were set out in R v Saw [2009] and are designed to reflect the impact of the burglary rather than the value of what is taken. Accordingly, aggravating factors that will increase the sentence are set out and include things such as targeting a vulnerable victim, or targeting victims out of spite or on racial grounds...