What is the meant by the criminal offence of burglary?

Burglary is defined by s 9 of the Theft Act 1968 (TA 1968) which provides for two different variants of the offence. An individual will be guilty of burglary if:

• they enter any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm or do unlawful damage to the building or anything in it; or
• having entered a building or part of a building as a trespasser, an individual attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm on any person in the building.

The following elements need to be established to prove the criminal offence of burglary:

• that the person enters the building;
• that it is a building or part of a building;
• that they do this as a trespasser;
• that they do this with intent.

In most cases it will be routine to find physical evidence to prove an individual has entered a building. However, in certain situations it may be difficult to decide whether an entry has occurred in law.

For an entry to occur, it had to be shown that the entry was ‘substantial and effective’ (R v Collins (1973)). However, someone can be convicted of burglary if they are found to have partially entered premises. For example, in R v Brown (1985) an individual remained standing on the pavement outside a shop and had leant in through a window and taken goods. Another example is where an individual was only partially in a building as they had been trapped by a window (R v Ryan (1996)).

In both these cases it was held that the entry had been sufficient to be convicted for burglary. In the second example it was also held to be immaterial that the defendant was not able to steal anything due to being trapped by the window.

Exactly what is meant by a building or part of a building is a matter for the jury, but s 9(4) of TA 1968 does specifically state that the term building will include an inhabited vehicle or vessel. This means such things as motor homes, caravans and houseboats will be protected by s 9 even when they are temporarily unoccupied.

Section 9 makes specific reference to part of a building. In R v Walkington (1979), the defendant entered a large shop during trading hours and had reached behind a counter to steal money from the till. He claimed that because the counter was not physically separated from the rest of the store (which he was allowed to enter) it could not amount to a part of a building. The court however, held that he had entered the part of the building normally reserved for staff as a trespasser and was guilty of burglary.

For an individual to be trespassing they will have entered or remained on another person’s property without authority.

When an individual enters a building with permission, but does something they are not invited to do, they can subsequently become a trespasser.

For example, in R v Jones & Smith (1976), a son had general permission to enter his father’s home but he became a trespasser when he did so with the intention of stealing the television set.

In many cases an individual will deceive another to gain access to the premises by impersonating someone who represents a water, gas or electricity supplier. This is often termed ‘distraction burglary’ and will fall within s 9 of TA 1968.

To establish burglary, the defendant must know they are a trespasser or be reckless as to whether they are trespassing. It must also be proved beyond reasonable doubt that they entered with intent to steal, inflict grievous bodily harm, or to unlawfully damage the building or anything in there (s 9(1)(a)); or entered and committed or attempted to commit theft or GBH there (s 9(1)(b)).

Under s 9 of TA 1968, the maximum sentence that someone convicted of burglary will receive is:

• 14 years – where the offence was committed in respect of a building which is a dwelling;
• 10 years – where the offence was committed in relation to any other buildings.