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Burglary (also called breaking and entering and sometimes housebreaking) is a crime, the essence of which is entry into a building for the purposes of committing an offence. Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. To commit a burglary is to burgle.
If you are worried about being prosecuted for Burglary after reading this article and you would like to discuss your concerns in complete confidentiality please contact your nearest London office to arrange an appointment.
COMMON LAW DEFINITION
Defined by Sir Matthew Hale as
“…..The breaking and entering the house of another in the night time, with intent to commit a felony therein, whether the felony be actually committed or not…..”
1. Breaking can be either actual, such as by forcing open a door, or constructive, such as by fraud or threats. Breaking does not require that anything be “broken” in terms of physical damage occurring. A person who has permission to enter part of a house, but not another part, commits a breaking and entering when they use any means to enter a room where they are not permitted, so long as the room was not open to enter.
2. Entering can involve either physical entry by a person or the insertion of an instrument with which to remove property. Insertion of a tool to gain entry may not constitute entering by itself. It is generally required at common law that entry occurs as a consequence of the breaking.
For example, if a wrongdoer partially opened a window by using a pry bar and then noticed an open door through which he entered the dwelling, there is no burglary at common law.
The use of the pry bar would not constitute an entry even if a portion of the prybar “entered” the residence. Under the instrumentality rule the use of an instrument to effect a breaking would not constitute an entry.
However, if any part of the perpetrator’s body entered the residence in an attempt to gain entry, the instrumentality rule did not apply. Thus, if the perpetrator uses the prybar to pry open the window and then used his hands to lift the partially opened window, an “entry” would have taken place when he grasped the bottom of the window with his hand.
3. House includes a temporarily unoccupied dwelling, but not a building used only occasionally as a habitation.
4. Night time is defined as hours between half an hour after sunset and half an hour before sunrise.
5. The most serious form of burglary was classed as felony when this definition was prevalent, and included larceny, a type of theft. This precludes licit break-ins whose intent cannot be for the commission of any crime, such as a forced entry to rescue a person from danger or to exercise a lawful arrest.
Occasionally this element is expressed as the intent to commit a felony “therein”. The use of the word “therein” adds nothing and certainly does not limit the scope of burglary to those wrongdoers who break and enter a dwelling intending to commit a felony on the premises. The situs of the felony does not matter, and burglary occurs if the wrongdoer intended to commit a felony inside at the time he broke and entered.
The common law elements of burglary often vary between jurisdictions. This common law definition has been expanded in most jurisdictions, such that the building need not be a dwelling or even a building in the conventional sense, physical breaking is not necessary, the entry does not need to occur at night, and the intent may be to commit any felony or theft.
The etymology originates from Anglo-Saxon or Old English, one of the Germanic languages. According to one textbook, “The word burglar comes from the two German words berg, meaning “house,” and laron, meaning “thief” (literally “house thief”).
Burglary is defined by section 9 of the Theft Act 1968 which created two variants:
“……A person is guilty of burglary if he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm [or raping any person therein], or do unlawful damage to the building or anything in it.(section 9(1)(a))……”
“……A person is guilty of burglary if, having entered a building or part of a building as a trespasser, he steals or attempts to steal anything in the building, or inflicts or attempts to inflict grievous bodily harm on any person in the building.(section 9(1)(b))……”
ELEMENTS OF THE OFFENCE
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 though 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(3) 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.
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 stole money from a till. The court held that he had entered that part of the building normally reserved for staff as a trespasser and was therefore guilty of burglary.
“As a trespasser”
The essence of trespass is entering or remaining on 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, 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.
There is no separate legal definition of this variant.
The intention to commit an offence, 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 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.
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.
Under section 10 of The Theft Act 1968, aggravated burglary is committed when a burglar enters and “at the time has with him a firearm, imitation firearm, weapon of offence, or any explosive”.
“At the time”
“Has with him”
In R v Kelt 1977 65 Cr App R 74 it was held that this phrase will normally mean mean “carrying”, and in R v Klass 162 JP 105, 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.
It is necessary to prove that the defendant was aware of his possession of a weapon to convict of aggravated burglary. In R v Russell 1984 Crim L R 425, the defendant was found in possession of a knife but had forgotten that he had it; it was held that he was not guilty of aggravated burglary. 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).
TRIAL and SENTENCE – BURGLARY
The maximum penalty for burglary is 14 years imprisonment if committed in a dwelling and 10 years otherwise. Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances apply. 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
TRIAL and SENTENCE – AGGRAVATED BURGLARY
Aggravated burglary carries a maximum sentence of life imprisonment and is therefore triable only on indictment.
Under Scots law in Scotland the crime of burglary is called theft by housebreaking. It does not include any other aspect of burglary. Housebreaking when combined with other crimes is considered acquisitive crime. It is a crime usually prosecuted under solemn procedure.
Defendants convicted of a criminal offence can often be punished with a prison sentence.
Therefore, it is highly advisable and in your own interests that you receive legal advice from a solicitor who is an expert in criminal law if you have been charged with a criminal offence relating to Burglary or Aggravated Burglary – i.e. a specialist criminal solicitor.
Specialist criminal solicitors are very experienced in successfully defending criminal prosecutions because criminal law is their sole day-to-day activity. They are likely to represent you better than a solicitor who does not have that experience or expertise – i.e. a general practice solicitor whose day-to-day activities might include family law and housing law as well as some criminal law.
Arrange an appointment to discuss your concerns with a specialist criminal solicitor at the earliest opportunity by contacting your nearest London office.