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OOFFFFEENNCCEESS AAGGAAIINNSSTT PPRROOPPEERRTTYY::

BBUURRGGLLAARRYY By the end of this unit you should be able to (AO1):

Explain the actus reus and mens rea of burglary Understand the difference between s.9(1)(a)

and s.9(1)(b) Explain what is meant by the common terms in

those sections You should also be able to (AO2):

Evaluate the current state of the law Compare the evolution of burglary in the law, with that of theft.

Further Reading for Help

There is a very useful summary of this area of the law in A Level Review (September 2007). You

may find this useful to consolidate your knowledge and to help with revision. You should also use a

range of the textbooks in the library to help you. All of this can be done during IS.

Homework: Revise theft, robbery and burglary for a 60 mark DRAG test on the first day back During your first week back you will complete a timed essay. It will be on one of the following four

areas. You will have a choice of three essays and may not bring any notes in with you:

Consent Burglary Causation Self-defence

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SSOOMMEE BBAASSIICCSS

The first thing to note is that there are two separate offences under s.9. Although they often overlap,

and indeed, D could be charged with both... they are separate and you need to think of them that

way... especially when it comes to section C questions.

Burglary is a offence, which means that it can be heard in either the

or the Courts, depending on the circumstances. But if the burglary

includes , then it is indictable.

Why do you think this is?

Introductory Task:

Look at the board, where section 9(1) and (2) are. Complete the table below, can you spot the differences between 9(1)(a) and 9(1)(b)

9(1)(a) 9(1)(b) AR

MR

Ulterior offences s.2

Do the two sections have anything in common?

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Common Term (1):

EENNTTRRYY

The first thing to notice is that there is no definition of this within the section,

or elsewhere. This means it has been left up to the courts to

decide exactly what is meant.... and that means that there are

a lot of cases!

So, what is an entry? When might you have ‘entered’ a building?

R v Collins 1972 *KEY CASE* you will have no trouble remembering this one!

Facts: Ratio: The CA held that an entry to a

building as a trespasser had to be “substantial and effective”.

D was on the window sill, and they held that this was not enough to meet the standard. We will come back to the question of consent later.

Today, Collins would not have been charged under s.9. Why? Sexual Offences Act 2003

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R v Brown 1985 Facts: Ratio: Here, the CA modified the Collins test. Holding

that it was enough that the entry was “effective”. In their view, the word “substantial” was of no material assistance in defining what is meant by entry.

Ok, so that’s clear[ish]... but how far will the courts go... what if you are trapped and cannot steal or do anything? Is that still an “effective” entry?

R v Ryan 1996 Facts: D was found trapped in a downstairs Ratio: window, with his head and right arm inside the property. The fire brigade very kindly released him at 2.30am. D was convicted at first instance and appealed on the grounds that his entry was not ’effective’ as he couldn’t actually steal anything.

SSTTUUDDEENNTT TTHHIINNKKIINNGG::

What implications does the Ryan ruling have for the burglar who uses a stick to obtain the goods, but

never actually goes into the building physically. Have they made an ‘effective’ entry?

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Common Term (2):

BBUUIILLDDIINNGG Well, for this we do have a little bit of help from the section.... and it is important as under section 9(3) it has an impact on D’s sentence... Max Sentence: Max Sentence: But that’s it. That’s all the help we get... the rest is up to the courts.

The main focus seems to be on the permanence of the structure. Houseboats and caravans would be included, as would outbuildings and sheds. The traditional definition is still good and comes from Judge Byles in Stevens v Gourley 1859 which defined a building as:

So, when does a temporary structure become permanent?

Norfolk Constabulary v Seeking and Gould 1986 Facts: Ratio: Held: DD were not guilty. The trailers had

wheels, and therefore were uninhabited vehicles and not covered by s.9(4).

Dwelling Non-Dwelling

“a structure of considerable size and intended to be permanent or at least endure for a considerable time.”

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B & S v Leathley 1979 Facts: D broke into a storage container on Ratio: a farm. It had been used for over 2 years and was on sleepers. It had a locking door and was connected to electricity. D argued that as it had no foundations, it was not a building for the purposes of s.9.

So, what do we mean then by “part of a building”?

Well, this has been interpreted very widely by the courts, and links closely to the interpretation of a trespasser [see next section)

In short, it seems that if you are somewhere you shouldn’t be, then that can be part of a building.

R v Walkington 1979 Facts Ratio:

D’s conviction was upheld by the CA. As the area was clearly marked and customers were not permitted, D’s actions amounted to entry to a ‘part of a building’

Now, listen to the facts of R v Laing 1995. Has he entered all or part of a building as a trespasser?

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Common Term (3):

TTRREESSPPAASSSSEERR

Right, well I am going to start by stating the obvious. If you have permission to enter all or part of a building, then you are not a trespasser.

This element of AR is vital (oh yeah, and it is also important for the MR), if there is not a trespass in entry, then there can be no burglary (Remember Laing?). The usual rules also apply to the consent – it must be ‘real’ and not obtained through fraud.

WWhhaatt iiff......

You visit Buckingham Palace and the Queen for tea. She says that you are allowed to wander about the dining room, but can’t go elsewhere. You do and accidently damage the throne.

You are walking past Buckingham Palace when Bob runs past you and pushes you through the

window.

Has a burglary been committed in either of these situations?

Are you a trespasser?

R v Collins 1972 Facts: Ratio: The white socks... the ladder.... Was he a trespasser? The windowsill..

Edmund-Davies LJ:

“the person entering does so knowing that

he is a trespasser and nevertheless deliberately enters or at the very least is reckless as to whether or not he is entering the premises of another without the other’s consent.”

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WWHHAATT IIFF YYOOUU HHAAVVEE PPEERRMMIISSSSIIOONN TTOO BBEE TTHHEERREE?? CCAANN YYOOUU DDOO WWHHAATT YYOOUU WWAANNTT??

R v Jones. Smith 1976 *KEY CASE* Facts: Ratio: CA “A person is a trespasser if he enters the

premises of another knowing that he is entering in excess of the permission that has been given to him to enter, or being reckless whether he is in excess of that permission.”

“when you invite a person in your house to use the staircase, you do not invite them to slide down the banisters.” Scrutton LJ

This may seem like a slightly odd decision as it means that the moment anyone enters a supermarket intending to steal, they are guilty of burglary even if they later change their minds. However, it is in line with Australian law on the subject (Barker v R 1983) and seems to revolve around the change in purpose of D being there.

Problem: Ann invites Bob, her new boyfriend, to her house. Ann’s dad tells him he is not allowed near her bedroom. While watching TV, Bob asks to go to the toilet. While upstairs he decides to go into Ann’s bedroom and destroy all evidence of her previous boyfriend. Has there been a burglary?

INDEPENDENT STUDY Aggravated Burglary s.10 Theft Act 1968

Using the article and/or textbooks, find the facts and the ratio of R v O’Leary. What does this case illustrate about the offence?

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MMEENNSS RREEAA

FFIINNAALLLLYY: Conditional Intent

Unlike theft, conditional intent is enough for burglary – regardless of whether D actually finds the

goods of value or not. We have already seen this in Walkington –where looking for money in a till, and finding none – was enough for intent under the act. It may indeed be helped by the fact that under 9(1)(a), D does not actually need to steal to be liable, they just have to intend to steal!

Attorney-General’s Reference No 1 & 2 of 1979 Facts: Ratio: DD were found in a house, with broken French windows. They admitted breaking in, but said that they wanted to grab “whatever they could get their hands on” and there was nothing in t he house. The Trial Judge ruled that this constitutes conditional intent and following Easom, ruled that they did not have the required intent for theft.

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EEVVAALLUUAATTIIOONN As usual, this is needed for AO2... and they do ask section A essay questions on burglary (January 2008 and June 2010) Use the information on the board to complete the evaluative table below. Remember: you should aim to add your own ideas as well!

Area Evaluation

Entry

Trespass

Ulterior Offences

Building

Intention

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Applying the Law:

Revision Questions

1. What is the difference between 9(1)(a) and 9(1)(b)?

2. What are the ‘ulterior offences’?

3. Which has been removed?

4. How was ‘trespasser’ defined in Collins?

5. How was ‘entry’ defined in Collins?

6. How have Ryan and Brown modified the definition of entry?

7. What is the definition of building from Stevens v Gourley?

8. What does s.9(4) include as a building?

9. What is the difference between Norfolk and B&S?

10. Can you trespass in your parents’ home?

11. What is the position regarding conditional intent?

Footballers charged with burglary

Two Championship footballers have been charged with burglary in connection with the theft of items from a Portsmouth nightclub. Southampton Football Club striker Bradley Wright-Phillips, 23, and winger Nathan Dyer, 20, will appear before Portsmouth magistrates on 8 July. They were arrested in March over claims that items were taken from Bar Bluu nightclub, Southsea, on 28 February. Southampton FC has declined to comment on the case. Bradley Wright-Phillips, of Briton Street, Southampton, is the son of former Arsenal and England player Ian Wright and the half-brother of Chelsea and England player Shaun Wright-Phillips. Nathan Dyer, also of Briton Street, was a member of Southampton's youth team before playing for the Championship club. Staff members at the nightclub claim three mobile phones, £145 in cash, student cards and cigarettes went missing from three handbags. Police launched an investigation when a group of men were filmed on CCTV entering the unlocked staff room. The pair were charged after answering police bail at Portsmouth central police station.

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Theft Act 1968

9 Burglary

(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, of inflicting on any person therein any grievous bodily harm or [raping any person] 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.]

Amendment

Sub-s (2): words in square brackets substituted by the Criminal Justice and Public Order Act 1994, s 168(2), Sch 10, para 26. Sub-ss (3), (4): substituted by the Criminal Justice Act 1991, s 26(2).

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