Burglary

Section 9 of the Theft Act 1968 creates two separate offences of burglary: an inchoate crime of ulterior intent where there is no need to
prove the commission of the substantive offence (s.9(1)(a)); and a complete crime where proof of the commission of an offence is of the
essence (s.9(1)(b)). Section 9(1) provides:
A person is guilty of burglary 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 (2) below;
or
(b) having entered any building or part of it 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.

Since both s.9(1)(a) and s.9(1)(b) have ‘entry of a building as a trespasser’ as common features for burglary these will be dealt with first
before we cover the specifics of the two offences.

12.2.1 Common features

In order to be guilty of burglary, D must enter a building or part of a building as a trespasser. The following questions must be asked,
therefore, in connection with both forms of the offence.
Was there an entry? If yes,
did the person entering enter as a trespasser? If yes,
was the entry to a building or part of a building?

What counts as entry?

To enter premises, entry of the whole person is not necessary; however, the entry must be ‘effective’. This does not necessarily mean that
the entry has to be capable of enabling the commission of an offence, but this helps. It is a question of fact for the jury. In Brown [1985]
Crim LR 212, it was confirmed that, contrary to the earlier authority of Collins [1973] QB 100, the entry need not be substantial. So D’s
conviction for burglary was upheld on the basis of him having smashed the window of a shop and having leant in, feet still on the
pavement, to take goods from inside the window. In Ryan [1996] Crim LR 320, on comparable facts the conviction was upheld although
D, who had become stuck in the window, had not managed to penetrate sufficiently far into the premises to steal anything.
Did the person entering enter as a trespasser?
Entry will be as a trespasser if the entry is made without the consent, express or implied, of the occupier, and without statutory authority.
The question of whether the defendant had entered as a trespasser was of key concern in Collins. The defendant, intending to rape V,
climbed naked up a ladder and perched on her windowsill. V mistook him in the dark for her boyfriend and welcomed him in. It was not
clear how far into the room D was when he received his invitation, but the jury found that his entry was sufficient for a conviction.
However, the court made clear that if he was still on the windowsill when invited in, he would not have entered as a trespasser and so
could not be guilty of burglary.
Since Collins it has also been decided that those who enter premises in excess of authority are trespassers on those premises. This
covers those who may have permission to be in the property but exceed the permission by doing something which they were not
invited to do. So in Jones and Smith [1976] 1 WLR 672 it was burglary for a son to enter his parent’s house intending to steal a TV.
Although he had general authority to enter the premises, that authority was vitiated by entering in excess of the presumed terms of his
parent’s consent.

Activity 12.16
Read Wilson, Section 16.4.B ‘Entry as a trespasser’ and answer the following questions.
a. Raffles enters Wizzo supermarket intending to buy a razor. As he has little money he decides, before entering, that if the razor
costs more than the £3 in his pocket, he will steal the razor. Has Raffles committed burglary?
b. In the light of Jones and Smith would Collins now be deemed to have entered as a trespasser, assuming the invitation to enter
was issued prior to his having entered the bedroom?

Was the entry to a building or part of a building?

A building is not defined in the Theft Act 1968, although s.9(4) states that it includes ‘a vehicle or vessel constructed or adapted for
human habitation’ – for example houseboats, canal barges and caravans. A consensus holds that a building must be some form of
structure with a degree of permanence capable of being entered. This would cover barns, churches, shops, warehouses and even portable
cabins such as freezer containers, and outbuildings – but probably not tents (B and S v Leathley [1979] Crim LR 314).
 A person who enters a building lawfully may become a trespasser in relation to a part of that building where they have no licence to go.
Parts of buildings include living rooms, service rooms, bathrooms and roofs. In the case of Walkington [1979] 1 WLR 1169, it was held
that a person lawfully visiting a department store was guilty of burglary when she went behind a shop counter to steal from the till. This
area, being clearly defined, was ‘part of a building’ and she, having no authority to be there, entered as a trespasser.

12.2.2 Mens rea: burglary

For both offences of burglary, the defendant must know they are a trespasser or be reckless as to whether they are trespassing at the time
of entry. They must also have the relevant mens rea for the crime they commit or intend to commit, for example, dishonesty and the
intention to permanently deprive in the case of theft.

Activity 12.17
Did Collins have the mens rea for burglary upon entering the room?
Specific offences
(i) Section 9(1)(a) burglary
The s.9(1)(a) offence requires intention to commit one of the ulterior offences. It will be charged when there is evidence that D had
entered with the relevant intent, but had not yet consummated the proposed crime. In everyday language, a person can be a burglar
without actually stealing anything or causing any harm. The most common ulterior intent is the intent to steal. Following Jones and
Smith, this has the surprising consequence that a person who enters a shop intending to steal from it commits burglary immediately upon
entering the shop, because by having this intent they enter in excess of authority and therefore enter as a trespasser.
It is important to remember that it is not necessary for the prosecution to prove entry with intent to steal, although of course this will
usually be the case. A person who enters with intent to commit any of the offences specified commits burglary. By s.9(2) these are
offences of:
stealing anything in the building or part of the building in question, or
inflicting on any person therein any grievous bodily harm, or
doing unlawful damage to the building or anything therein.

It is not burglary, therefore, to enter premises as a trespasser with intent to commit fraud, rape or cause actual bodily harm.

(ii) Section 9(1)(b) burglary

The s.9(1)(b) offence does not require proof of an ulterior intent at the time of entering as a trespasser. It is charged only where there is
evidence that the substantive offence has been committed. Since the offence has been committed, proof of the ulterior intent upon
entering as a trespasser is unnecessary. This form of burglary is more restricted in its coverage than s.9(1)(a). It is committed where,
having entered as a trespasser, the entrant:
steals or attempts to steal, or
inflicts or attempts to inflict grievous bodily harm.

It does not cover, therefore, the case of a person who enters premises as a trespasser and then causes criminal damage to the premises or
inflicts bodily harm less than grievous bodily harm. In such a case the prosecution must charge the substantive offence. For the s.9(1)(b)
offence the prosecution must prove not only the entry as trespasser but also all of the elements of the ulterior offence.

Activity 12.18
Read Wilson, Section 16.5 ‘Modes of committing burglary’ and then answer the following questions.
a. A enters a private office at her local bank, without authority, to recover the handbag she had mistakenly left there earlier in
the day. Are either forms of burglary committed?
b. A enters her flatmate’s room to borrow, without permission, her evening dress. Are either forms of burglary committed?
c. Do you think s.9(1)(b) burglary should include cases where D commits criminal damage or a non-serious offence against the
person? Why do you think these crimes are not included?

(iii) Aggravated burglary under s.10 of the Theft Act 1968

Under s.10(1):
(1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any
weapon of offence, or any explosive; and for this purpose –
(a) ‘firearm’ 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 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; and
 (c) ‘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 mere fact that the defendant has with them at the time of the burglary an object that could be used as a weapon of offence such as a
crowbar or knife does not mean the offence is committed. The prosecution must either show that the article’s primary purpose is for
causing injury such as a gun or hunting knife or has been adapted for such use or, in the case of articles such as crowbars, knives, etc.
that it was intended for such use by the defendant. See R v Eletu and White [2018] EWCA Crim 599.
The relevant time for possessing the weapon depends on whether it is a s.9(1)(a) offence or a s.9(1)(b) offence. If (a) then possession
must be at time of entry; if (b) possession must be at the time the ulterior offence is committed. In O’Leary (1986) 82 Cr App R 341, D
entered a house without a weapon. Once inside he took a knife from the kitchen and took it upstairs to effect the burglary. D’s conviction
was upheld on appeal. It was held that since the offence was charged under s.9(1)(b), there was no requirement that he had the knife at
the time of entry.