In the three years to 2018 burglary reports in England and Wales rose by 6% while criminal charges for burglary fell by 33%. The number of police officers available to investigate burglary and other crimes also fell during that time.[1]
Statute
The offence of burglary is now defined by section 9 of the Theft Act 1968 which now reads:
(1) A person is guilty of burglary if—
(a) he or she enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) 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 grievous bodily harm.
(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm ... therein, and of doing unlawful damage to the building or anything therein.
(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding—
(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;
(b) in any other case, ten years.
(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also 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.][2]
Burglary with intent to rape
Section 9(2) originally referred to the offence of raping any woman in the building or part of the building in question.[3] The words "raping any person" were substituted for the words "raping any woman"[4] on 3 November 1994.[5][6] This was consequential on the changes to the definition of rape made by the Criminal Justice and Public Order Act 1994. The words "or raping any person" were in turn repealed[7] on 1 May 2004.[8] The offence of burglary with intent to rape is replaced by the offence of trespassing with intent to commit a sexual offence, contrary to section 63 of the Sexual Offences Act 2003.[9]
Amendments to ss 9(3) & (4)
Sections 9(3) and (4) were substituted[10] on 1 October 1992.[11]
Elements of the offence
"Enters"
Although physical evidence of entry is not normally difficult to obtain, it can be difficult on occasions to decide whether an entry has occurred in law. In R v Collins, it was held that entry had to be "substantial" and "effective". The issue arose in R v Brown (1985) 71 Cr App R 15 in which the defendant had been found on the pavement outside a shop with the top half of his body through the broken window, sorting through property on display for sale; this was held by the Court of Appeal to constitute an effective entry, while regarding the use of the word "substantial" as unnecessarily wide. It was ruled that the jury had been entitled to conclude that the entry had been effective. Furthermore, in R v Ryan (1996) 160 JP 610, the defendant had been found partially within a building, having been trapped by a window, and argued that this was not a sufficient entry. However, he was convicted as it was held that a partial entry was sufficient and that it was irrelevant that he was due to circumstances incapable of stealing anything.
"Building or part of a building"
The Theft Act 1968 does not define a building, so this must be a matter of fact for the jury, however, Section 9(4) specifically states that the term includes an "inhabited vehicle or vessel"; hence motor homes, caravans and houseboats are protected by the section even when temporarily unoccupied.[12] Burglary can also be committed in "part of a building" and in R v Walkington 1979 1 WLR 1169 the defendant had entered a large shop during trading hours but went behind a counter and put his hand in an empty till. The court held that he had entered that part of the building normally reserved for staff as a trespasser with intention to steal money and was therefore guilty of burglary.
"As a trespasser"
The essence of trespass is entering or remaining in another's property without authority; a person having permission to enter property for one purpose who in fact enters for another purpose may become a trespasser, and in R v Jones and Smith,[13] a defendant who had a general permission to enter his father's home became a trespasser when he did so in order to steal a television set, because doing so was inconsistent with the general permission. In recent years, the terms "distraction burglary", "artifice burglary" and "burglary by trick" have been used in crime prevention circles when access to premises is granted as a result of some deception on the occupier, usually by a pretence that the burglar represents some body who might reasonably request access such as a water, gas or electricity supplier.[14][15] There is no separate legal definition of this variant.
"With intent"
The intention to commit an offence (theft, grievous bodily harm or, for s9(1)(a), criminal damage), being an essential element of burglary, requires proof beyond reasonable doubt. For example, if entry is made to regain property which the defendant honestly believes he has a legal right to take, there is no intention to steal and the defendant is entitled to be acquitted. However, it has been held that a conditional intent to steal anything found to be of value is enough to satisfy this requirement.[16]
Mens Rea
R v Collins is authority for the proposition that the defendant must at least be reckless as to whether his entry is a trespass. For the Section 9(1)(a) offence, proof beyond reasonable doubt is required that the defendant intended to commit the offence specified as part of the burglary. In the Section 9(1)(b) offence, the mens rea is that of the offence committed, such that, for example, if grievous bodily harm is inflicted, recklessness will be sufficient to establish liability.
Mode of trial
Subject to the following exceptions, the offence of burglary is triable either way.[17]
Burglary comprising the commission of, or an intention to commit, an offence which is triable only on indictment, is triable only on indictment.[18]
Burglary in a dwelling is triable only on indictment if any person in the dwelling was subjected to violence or the threat of violence.[19]
A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding -
(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;
(b) in any other case, ten years.
The reference in that section to a building which is a dwelling, applies also to an inhabited vehicle or vessel, and applies 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.[20]
A person guilty of burglary is liable on summary conviction to imprisonment for a term not exceeding six months, or to a fine not exceeding the prescribed sum, or to both.[21]
Higher courts have consistently upheld lengthy custodial sentences for burglaries of dwellings; see, for example R v Brewster 1998 1 Cr App R (S) 181[23]
Aggravated burglary
Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm,[24] imitation firearm,[25] weapon of offence,[26] or any explosive[27]".
"Has with him"
In R v Kelt [1977] 65 Cr App R 74 it was held that this phrase will normally mean "carrying", and in R v Klass 162 JP 105,[28]The Times, 17 December 1997 (CA) others had entered a building for criminal purposes while the defendant remained outside, but in possession of a scaffolding pole which had been used to break a window. This did not, in law, constitute an entry for the purposes of burglary. It was held that since Klass had not himself entered the building, he was guilty of burglary and not aggravated burglary.
"At the time"
In R v O'Leary 1986 82 Cr App R 337, the defendant entered a house unarmed but picked up a kitchen knife once inside; he then used it to force the occupier to hand over property. It was held that this constituted aggravated burglary because the offence which was part of the enterprise had been committed while in possession of the weapon.
In R v Kelly, 1992 The Times, 2 December, the defendant had used a screwdriver to gain entry; once inside the premises, he was confronted by the occupiers and used the screwdriver as a weapon to force them to hand over a video recorder. It was held that the screwdriver became an offensive weapon when he formed an intention to use it for causing injury to the occupier at the time of the theft, and therefore he was guilty of aggravated burglary.
Mens Rea
A plea that the defendant did not intend to use the weapon is not a defence to this charge (R v Stones [1989] 1 WLR 156).
Section 26 created an offence described by its marginal note as "housebreaking and committing felony" (it could be committed in respect of buildings other than dwelling-houses and at the time of its repeal it consisted of committing an arrestable offence).
Section 27 created an offence described by its marginal note as "housebreaking with intent to commit felony" (and see the words in parentheses above).
At the time of its repeal, section 28(4) created offence of being found by night in any building with intent to commit any arrestable offence (previously felony) therein.
↑ which means anything which has the appearance of being a firearm, whether capable of being discharged or not
↑ means any article made or adapted for causing injury to or incapacitating a person, or intended by the person having it with him for such use
↑ 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
In many common law jurisdictions, an indictable offence is an offence which can only be tried on an indictment after a preliminary hearing to determine whether there is a prima facie case to answer or by a grand jury. A similar concept in the United States is known as a felony, which for federal crimes, also requires an indictment. In Scotland, which is a hybrid common law jurisdiction, the procurator fiscal will commence solemn proceedings for serious crimes to be prosecuted on indictment before a jury.
Theft is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word theft is also used as a synonym or informal shorthand term for some crimes against property, such as larceny, robbery, embezzlement, extortion, blackmail, or receiving stolen property. In some jurisdictions, theft is considered to be synonymous with larceny, while in others, theft is defined more narrowly. A person who engages in theft is known as a thief.
Robbery is the crime of taking or attempting to take anything of value by force, threat of force, or by use of fear. According to common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear; that is, it is a larceny or theft accomplished by an assault. Precise definitions of the offence may vary between jurisdictions. Robbery is differentiated from other forms of theft by its inherently violent nature ; whereas many lesser forms of theft are punished as misdemeanors, robbery is always a felony in jurisdictions that distinguish between the two. Under English law, most forms of theft are triable either way, whereas robbery is triable only on indictment. The word "rob" came via French from Late Latin words of Germanic origin, from Common Germanic raub "theft".
Burglary, also called breaking and entering (B&E) and housebreaking, is the act of illegally entering a building or other areas without permission, typically with the intention of committing a further criminal offence. Usually that offence is theft, larceny, robbery, or murder, but most jurisdictions include others within the ambit of burglary. To commit burglary is to burgle, a term back-formed from the word burglar, or to burglarize.
Sacrilege is the violation or injurious treatment of a sacred object, site or person. This can take the form of irreverence to sacred persons, places, and things. When the sacrilegious offence is verbal, it is called blasphemy, and when physical, it is often called desecration. In a more general sense, any transgression against what is seen as the virtue of religion would be a sacrilege, and so is coming near a sacred site without permission.
The Theft Act 1968 is an act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.
A hybrid offence, dual offence, Crown option offence, dual procedure offence, offence triable either way, or wobbler is one of the special class offences in the common law jurisdictions where the case may be prosecuted either summarily or on indictment. In the United States, an alternative misdemeanor/felony offense lists both county jail and state prison as possible punishment, for example, theft.
The Theft Act 1978 is an act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions. See also the Fraud Act 2006.
False accounting is a legal term for a type of fraud, considered a statutory offence in England and Wales, Northern Ireland and the Republic of Ireland.
Possession of stolen goods is a crime in which an individual has bought, been given, or acquired stolen goods.
Property crime is a category of crime, usually involving private property, that includes, among other crimes, burglary, larceny, theft, motor vehicle theft, arson, shoplifting, and vandalism. Property crime is a crime to obtain money, property, or some other benefit. This may involve force, or the threat of force, in cases like robbery or extortion. Since these crimes are committed in order to enrich the perpetrator they are considered property crimes. Crimes against property are divided into two groups: destroyed property and stolen property. When property is destroyed, it could be called arson or vandalism. Examples of the act of stealing property is robbery or embezzlement.
The Criminal Law Act 1977 is an act of the Parliament of the United Kingdom. Most of it only applies to England and Wales. It creates the offence of conspiracy in English law. It also created offences concerned with criminal trespass in premises, made changes to sentencing, and created an offence of falsely reporting the existence of a bomb.
Obtaining pecuniary advantage by deception was formerly a statutory offence in England and Wales and Northern Ireland. It was replaced with the more general offence of fraud by the Fraud Act 2006. The offence still subsists in certain other common law jurisdictions which have copied the English criminal model.
R v Collins 1973 QB 100 was a unanimous appeal in the Court of Appeal of England and Wales which examined the meaning of "enters as a trespasser" in the definition of burglary, where the separate legal questions of an invitation based on mistaken identity and extent of entry at the point of that beckoning or invitation to enter were in question.
The Larceny Act 1916 was an Act of the Parliament of the United Kingdom. Its purpose was to consolidate and simplify the law relating to larceny triable on indictment and to kindred offences.
The Criminal Attempts Act 1981 is an Act of the Parliament of the United Kingdom. It applies to England and Wales and creates criminal offences pertaining to attempting to commit crimes. It abolished the common law offence of attempt.
Removing article from place open to the public is a statutory offence in England and Wales and Northern Ireland.
The Larceny Act 1861 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland. It consolidated provisions related to larceny and similar offences from a number of earlier statutes into a single Act. For the most part these provisions were, according to the draftsman of the Act, incorporated with little or no variation in their phraseology. It is one of a group of Acts sometimes referred to as the Criminal Law Consolidation Acts 1861. It was passed with the object of simplifying the law. It is essentially a revised version of an earlier consolidation Act, the Larceny Act 1827 (7 & 8 Geo. 4. c. 29), incorporating subsequent statutes.
Assault with intent to resist arrest is a statutory offence of aggravated assault in England and Wales and Northern Ireland and the Republic of Ireland.
In English criminal law, an inchoate offence is an offence relating to a criminal act which has not, or not yet, been committed. The main inchoate offences are attempting to commit; encouraging or assisting crime; and conspiring to commit. Attempts, governed by the Criminal Attempts Act 1981, are defined as situations where an individual who intends to commit an offence does an act which is "more than merely preparatory" in the offence's commission. Traditionally this definition has caused problems, with no firm rule on what constitutes a "more than merely preparatory" act, but broad judicial statements give some guidance. Incitement, on the other hand, is an offence under the common law, and covers situations where an individual encourages another person to engage in activities which will result in a criminal act taking place, and intends for this act to occur. As a criminal activity, incitement had a particularly broad remit, covering "a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity". Incitement was abolished by the Serious Crime Act 2007, but continues in other offences and as the basis of the new offence of "encouraging or assisting" the commission of a crime.
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