Burglary
Lesson Objectives
• I will be able to state the definition of burglary
• I will be able to explain the actus reus and
mens rea of burglary under s9(1)(a) and (b) of
the Theft Act 1968
• I will be able to explain cases that illustrate
the law on burglary under s9(1)(a) and (b) of
the Theft Act 1968
Burglary under s9(1)(a) and (b)
of the Theft Act 1968
• Intro from book
• The law on burglary is divided into 2 parts:
• S9(1)(a) of the Theft Act 1968 is concerned with
going into a building as a trespasser with intent to
commit one or more of a number of specified
offences
• S9(1)(b) of the Act is concerned with committing
one of a specified range of offences after an entry
has been made to a building as a trspasser
Definition s9(1)
• 1. 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 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, or inflicting on any person
therein any grievous bodily harm therein, and of doing
unlawful damage to the building or anything therein
• There are, therefore two distinct offences, the
first under s9(1)(a) and the other under
s9(1)(b)
Burglary under s9(1)(a)
• The offence has a number of elements that need to be
considered:
• The actus reus has 3 elements:
– Enters
– A building or part of a building
– As a trespasser
– The mens rea has 2 elements
• Knowledge or recklessness as to his entering as a
trespasser
• With intent to commit theft, grievous bodily harm or
damage to the building or its contents
Burglary under s9(1)(b)
• The actus reus has 4 elements
– Enters
– A building or part of a building
– As a trespasser
– Actus reus of theft or grievous bodily harm, or attempt
theft/grievous bodily harm therein
– The mens rea has 2 elements
• Knowledge or recklessness as to his entry as a
trespasser
• Mens rea for theft or grievous bodily harm or attempt
theft/grievous bodily harm therein
• The basic distinction between the two offences is
that the first offence entry with an ulterior intent –
to steal, cause gbh or cause damage
• The second offence is the commission of theft or gbh
(or an attempt to do so) once entry as a trespasser
has taken place
• There are, therefore, a number of common elements
to theft: enters; building or part thereof; as a
trespasser; knowledge or recklessness as to his
entering as a trespasser
Enters
• Entry is done when what is called ‘effective’
entry has taken place. This is a question of fact
and depends on whether enough of the
defendant is in the building to achieve the
ulterior intent (s9(1)(a)) or commit the crime
or attempt crime (s9(1)(b)). This is illustrated
by three cases.
• Collins (1973) – entry, for the purpose of burglary needs to be
effective; this means that it enables the crime to be committed,
not that the defendant's body was wholly inside the building
• Brown (1985) - the defendant was seen with his head and
shoulders inside a broken shop window; this was enough for
effective entry to the shop
• Ryan (1996) – entry is effective even if the crime intended
cannot be committed; in this case a would-be thief got trapped
in a window, but he was still convicted of burglary
• Standing with a fishing rod through a letter box of another
remote device to steal will amount to burglary as the device is
likely to be considered an extension of the defendant’s body
Building or part thereof
• There is no formal definition of a building, but it
must be a fairly permanent structure. This would
appear to exclude a tent, so theft from a tent at a
festival remains theft not burglary.
• Theft Act 1968, s9(3)
• 3) references in subsections (1) and (2) above to a
building 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 times when he is
• This effectively means that burglary only applies to
fixed structures of substantial portable structures
that are designed for living in. So a motor caravan
would be capable of being burgled whilst being used
to live in, but not when used as a vehicle or parked
up over winter.
• For the purposes of burglary it is only necessary to
enter part of a building as a trespasser. This is
because a person often has permission to enter parts
of a building but not others – Walkington (1979) –
part of a building may include a partitioned-off part
of a shop; in this case the partition sectioned off the
till and that was sufficient to make it burglary
As a trespasser
• As has been seen in Walkington (1979), entry to a part of a
building that is clearly not one to which the defendant has
express or implied permission to enter is trespass
• Trespass can be defined as occurring when a person
intentionally or recklessly enters a building in the possession
of another without permission or a legal right to do so
• This entry must be voluntary, not forced or purely accidental.
Thus, in Collins (1973), he could not be guilty of burglary if he
was outside the building when the offence took place, that is,
before the permission to enter was given
• Permission is given either expressly, or impliedly from the
circumstances
• A person who is given permission to enter for one purpose
but in fact enters for another purpose is entering as a
trespasser
• Jones and Smith (1976) – the defendants were convicted of
burglary because they had knowingly exceeded their
permission to be in the house; permission was not given to
enter and steal things
• The underlying principle is that if a person enters a building
with intent to steal, cause GBH or criminal damage, he does
so as a trespasser except in the unlikely event of the occupier
giving him permission to do so
Knowledge or recklessness
as to his entering as a trespasser
• Entry must be voluntary, not forced or purely
accidental. For this purpose, the recklessness
in Cunningham (1957) – subjective
recklessness that is where the defendant
knows there is a risk, is willing to take it and
takes it deliberately
The different elements of s9(1)(a) and
(b) of the Theft Act 1968
• The first difference between the two sections is that
for the offence under s9(1)(a) the defendant does
not have to have committed that offence, only that
he had the mens rea of intention to commit either
theft, GBH of damage to the building or its contents
• The essential feature is that the defendant formed
the intention before he entered the building as a
trespasser. This intent can be conditional intent, e.g.
to steal jewellery if there is jewellery inside the
building
• For the offence under s9(1)(b) to be
committed, the defendant must commit or
attempt to commit theft or GBH. Thus the
offence requires the full actus reus and mens
rea of those offences to be committed
• So far as GBH is concerned, this can be either
s18 or s20 of OAPA 1861, and presumably,
would implication include murder if that were
to occur
Exam Qs