LAW04: Criminal Law (Offences against Property) Burglary
There are 2 different offences of burglary: s. 9(1)(a) TA68 "Enters a building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm or commit criminal damage." s. 9(1)(b) TA68 "having entered a building or part of a building as a trespasser steals or attempts to steal; or inflicts or attempts to inflict grievous bodily harm."
Although they are completely different crimes they do share common elements and definitions. In both types of burglary there must be... Entry of a building or part of a building as a trespasser.
ACTUS REUS: Entry. Entry is not defined in TA68. The history of the definition is as follows: Collins (1972) stated that an "entry" must be "effective and substantial". Brown (1985) the courts modified the concept of "effective and substantial entry" to just "effective entry".
Ryan (1996) This case gives the current definition of "entry". D tried to get into a house through a window at 2.30 am but got trapped. D's head and right arm was inside but the rest of his body was outside. This was obviously not an effective entry. The Ds conviction was upheld because the jury were able to find evidence of entry.
Building... This is not defined in the TA68 but the act does give "building" an extended meaning. S. 9(4) states the meaning can be extended to include "inhabited vehicles or vessels" such as houseboats and caravans. The lack of definition doesn't really pose any problems as the meaning of a building is obvious and would also include sheds and outbuildings. The main problem with the definition arises when structures like porta-cabins are used for storage.
B and S v Leathley (1979) A 25 foot freezer container had been in a farmyard for 2 years and was used as storage. It rested on railways sleepers, had doors with locks and was connected to the electricity supply... Is this a building? Yes.
Norfolk Constabulary v Seekings and Gould (1986) A lorry trailer with wheels had been used for storage for over a year. It had steps leading up to it and was connected to the electricity supply. Is this a building? No: the wheels mean that it remains a vehicle.
... or part of a building. This covers situations where a person may have permission to be in one part of a building but not in another part. So, when the D enters that prohibited part of the building they would be committing burglary.
Walkington (1979) The D went into the counter area of a shop and opened the till. The D was guilty of s. 9(1)(a) burglary because he had entered a "part of a building" as a trespasser with the intention to steal. Although D was allowed in the shop he wasn't allowed behind the counter area.
Other examples of entering a part of a building would be entering a storeroom in a shop or if a student enters another student's room in a hall of residence without permission. There is no need to go through a doorway or barrier just entering another part of a building is enough.
Trespasser. The D must enter the building/part of a building as a trespasser. A trespasser is a person who does not have permission to be in the building etc. If a person does have permission to enter he is not a trespasser and will not have committed burglary.
Collins (1972) D was drunk and decided that he wanted to have sex. He saw an open window and climbed a ladder to have a look inside. He saw a naked girl asleep in bed. He then climbed down the ladder, removed all his clothes apart from his socks and climbed back up the ladder. When D was on the window sill the woman woke up, thought D was her boyfriend, helped him inside and had sex with him.
Collins (1972) D was convicted of a s. 9(1) (a) burglary (the intention to commit rape was part of the definition then). D appealed the decision claiming he was not a trespasser as the woman invited him in. T h e C A q u a s h e d D ' s conviction as he was not a trespasser.
Going beyond permission. If the D has permission to enter a building/part of a building but then goes beyond that permission (D does something that they are not allowed to do) the D may then become a trespasser.
Smith and Jones (1976) S and his friend (J) went to S's dad's house in the middle of the night and took 2 TVs without S's dad's knowledge or permission. S's dad said his son would not be a trespasser as he had a general permission to enter.
Smith and Jones (1976) The CA stated: "A person is a trespasser for the purposes of s. 9(1)(b) of the Theft Act 1968 if he enters 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 entering in excess of that permission."... and so, the Ds were guilty of burglary.
Smith and Jones is in line with an Australian case called Barker v R (1983) where a person went on holiday and asked D, a neighbour, to keep an eye on his house. He told the D where a key was hidden in case D needed to enter the house. D then used the keys to enter the house and steal property. D was found guilty of burglary as he had gone beyond his general permission to enter.
MENS REA There are 2 parts to the mens rea of burglary: Firstly, for both s. 9(1)(a) and s. 9(1)(b), the D must know (have intention) or be subjectively reckless as to whether he is trespassing. Then, the second part of the mens rea for the separate offences differs...
s. 9(1)(a) The D must have the intention to commit 1 of the 3 ulterior offences at the time of entering the building. Conditional intention is enough to satisfy this. s. 9(1)(b) The D must have the mens rea for either theft or GBH.