Lecture # 4 | P2 – Criminal Law | Burglary (S.

9 & 10)
Resource person: Salik Aziz Vaince
WhatsApp: +92-313-7575-311

Name of the Student:

__________________________

Definition of burglary
Section 9 states: (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 therein, and of doing unlawful damage to the
building or anything therein.

AR OF BURGLARY
 Common elements of s 9(1)(a) and s 9(1)(b)
Although s 9(1) (a) and s 9(1) (b) create different ways of committing burglary, they do have

common elements. There must be:

1. ____________________________

2. ____________________________________________________

3. ____________________________

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 1. Entry
 R v Brown (1985): The D was standing on the ground outside but leaning in
through a shop window. His feet and the lower part of his body were outside the shop,
but the top part of his body and his arms were inside the shop.

Held: ___________________________________________________________________________

_________________________________________________________________________________.

 R v Ryan (1996): The D became trapped when trying to get through a window into a
house in the early hours of the morning. His head and right arm were inside the house
but the rest of his body was outside. The fire brigade had to be called to release him.

Held: ___________________________________________________________________________

__________________________________________________________________________________

_________________________________________________________________________________.

2. Building or part of a building

 B and S v Leathley (1979): A 25-foot-long freezer container had been kept as a
storage unit in a farmyard for over two years. It rested on sleepers (plank-shaped
supports from a railway), had doors with locks and was connected to the electricity
supply.

Held: ___________________________________________________________________________.

 Norfolk Constabulary v Seekings (1986): A lorry trailer with wheels had

been used for over a year for storage. Although it had steps up to it and was connected
to the electricity supply.

Held: ___________________________________________________________________________

_________________________________________________________________________________.

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 Part of a building

 R v Walkington (1979): The D went into a counter area in a shop and opened a
cash register. This area was clearly marked by a three-sided counter.

Held: ___________________________________________________________________________

__________________________________________________________________________________

_________________________________________________________________________________.

 R v Rodmell (1994): The D was convicted of burglary of a garden shed, and the
theft of power tools in it. The shed stood in the large grounds of a house, and was about
50 metres from the property.

Held: A garden shed is part of a person's home. Burglars should be under no illusion that
burglary of outbuildings is just as much burglary of domestic premises as breaking into the
front door, although it can be said to be not quite as serious as breaking onto the place where
people live.

3. As a trespasser
 R v Jones and Smith (1976): Smith and his friend, Jones, went to Smith's father's
house in the middle of the night and took two TV sets without the father's knowledge or
permission. The father stated that his son would not be a trespasser in the house; he had
a general permission to enter.

Held: The Court of Appeal upheld the convictions for burglary, stating: 'A person is a
trespasser for the purpose of s9(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.’

MR OF BURGLARY
There are two parts to the mens rea in burglary. These are in respect of entering as a
trespasser and the ulterior offence.

1. Subjectively reckless
For both s 9(1)(a) and s 9(1)(b), the defendant must know, or be subjectively reckless, as to
whether they are trespassing.

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2. The intent to commit one of the mentioned offences
For s 9(1) (a), the defendant must have the intent to commit one of the three offences at the
time of entering the building. Where the defendant is entering intending to steal anything
they can find which is worth taking, then this is called a conditional intent. This is sufficient
for the defendant to be guilty under s 9 (1) (a), even if there is nothing worth taking and they
do not actually steal anything. For s 9(1)(b), the defendant must also have the mens rea for
theft or grievous bodily harm when committing (or attempting to commit) the actus reus of
one of these offences.

 R v Collins [1973]: The D was charged with burglary. He had climbed a ladder to
an open window where a young woman was sleeping naked in her bed. He descended
the ladder and stripped down to his socks then climbed up again. The woman awoke
and saw him at the window. She thought it was her boyfriend so invited him in. It was
not clear, and neither party could recall whether he was inside or outside the window
when she invited him in. They proceeded to have sexual intercourse. She then realised it
was not her boyfriend and screamed for him to get off. He ran off. The following day he
was questioned by the police and charged with burglary under s.9(1)(a) on the grounds
that he entered as a trespasser with the intent to commit rape. (He could not be charged
with rape as the woman had consented to sexual intercourse). The jury convicted. The
defendant appealed on the grounds of misdirection as the jury had not been asked to
consider if he was a trespasser at the time of entry.

Held: His conviction was quashed. There must be an effective and substantial entry with
knowledge or being reckless as to being a trespasser. Consent of the home owner (the girl's
parents) was not required it was sufficient that the girl had invited him in.

AGGRAVATED BURGLARY (s 10)

Aggravated burglary is defined in s 10 of the Theft Act 1968: A person is guilty of
aggravated burglary if he commits any burglary and at the time has with him any firearm or
imitation firearm, any weapon of offence, or any explosive, and for this purpose –

(a) “Firearm” includes an air gun or air pistol and “imitation firearm” means
anything which has the appearance of being a firearm, whether capable of being
discharged or not; and

(b) “Weapon of offence” means any article made or adapted for use for causing
injury to or incapacitating a person, or intended by the person having it with him for
such use; and

(c) “Explosive” means any article manufactured for the purpose of producing a
practical effect by explosion, or intended by the person having it with him for that
purpose.’

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 Additional requirements: There must be a burglary within the
meaning of s 9(1) (a) or s 9(1)(b) of the Theft Act 1968. Once that is established, the
additional requirements of the offence must be proved by the prosecution.

1. At the time
 R v O'Leary (1986): The D picked up a knife after entering the premises as a
trespasser but before he confronted the householders and demanded their cash and
jewellery.

Held: ___________________________________________________________________________

__________________________________________________________________________________

_________________________________________________________________________________.

2. Has with him

 R v Francis [1982]: The Ds, who were armed with sticks, demanded entry. Having
been allowed to enter, they then put down the sticks. Later they stole items from the
house.

Held: Their convictions for aggravated burglary were quashed because although they had
the weapons with them on entry, there was no evidence that they intended to steal at that
point. Then, when they did actually steal, they did not have the weapons with them.

3. Any firearm or imitation firearm

Section 10(1) (a) of the Theft Act 1968 states that: "Firearm" includes an air gun or air
pistol, and "imitation firearm" means anything which has the appearance of being a firearm,
whether capable of being discharged or not.'

4. Any weapon of offence

Section 10(1) (b) of the Theft Act 1968 states that: "Weapon of offence" means any
article made or adapted for use for causing injury to or incapacitating a person, or intended
by the person having it with him for such use”.

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 R v Kelly (1993): The D used a screwdriver, which he had taken with him in order
to break into a property, to assault the occupant who had surprised him during the
burglary.

Held: ___________________________________________________________________________.

 R v Stones [1989]: The D was caught by the police during the course of committing
a burglary. He had a knife on him at the time and was charged and convicted of
aggravated burglary. He appealed contending that he had no intention to use the knife
in the burglary and was only carrying it as the lads from Blyth were after him.

Held: ___________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

_________________________________________________________________________________.

5. Any explosive
Section 10(1)(c) of the Theft Act 1968 states that: 'Explosive" means any article manufactured
for the purpose of producing a practical effect by explosion, or intended by the person
having it with him for that purpose’.

 Sentencing for burglary

Offence Type Maximum Sentence
Burglary other than dwelling

Burglary in a dwelling

Aggravated burglary

Question from past papers

Q. Evaluate the law of burglary. [Q2(b)/9084/22/June/2023/25 Marks]

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 Paper 2: 9084/22/June/2014
Section – A
1. Sykes asks Twist and Unwin to go with him at night to break in to a house owned by Lord

Green. Sykes and Unwin break into the house and take some valuable jewellery. Twist stays

outside as a lookout, armed with a cricket bat. Lord Green is awoken by the noise and comes

down the stairs. Unwin produces an imitation gun from his coat pocket and threatens Lord

Green with it. Twist sees a police car approach and shouts for Sykes and Unwin to leave.

Sykes, Twist and Unwin are arrested by the police and taken to the police station for

questioning.

(a) Consider what offence, if any, Sykes has committed under the Theft Act 1968. [10]

(b) Consider what offence, if any, Twist has committed under the Theft Act 1968. [10]

(c) Consider what offence, if any, Unwin has committed under the Theft Act 1968. [10]

Source Material
Theft Act 1968

s.9
(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 … therein, and of doing unlawful damage to the building or anything therein…

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s.10— Aggravated burglary
(1) A person is guilty of aggravated burglary if he commits any burglary and at the time has
with him any firearm or imitation firearm, any weapon of offence, or any explosive; and for
this purpose—

(a) “firearm” includes an airgun or air pistol, and “imitation firearm” means
anything which has the appearance of being a firearm, whether capable of being
discharged or not; and

(b) “weapon of offence” means any article made or adapted for use for causing injury
to or incapacitating a person, or intended by the person having it with him for such
use; and

(c) “explosive” means any article manufactured for the purpose of producing a
practical effect by explosion, or intended by the person having it with him for that
purpose.

R. v Wiggins (Zaro Pierre) [2012] EWCA Crim 885

The appellant (W) appealed against his conviction for aggravated burglary contrary to the
Theft Act 1968 s.10(1). A burglary had taken place and a bottle of perfume had been stolen.
A neighbour saw a man in the garden and called the police. Shortly afterwards the police
found W, who matched the description given by the neighbour, nearby. W dropped a bottle
of perfume matching the stolen one close to a Taser gun on the ground. W’s fingerprints
were not found at the flat but an unidentified fingerprint was found there. W pleaded guilty
to possession of a firearm. At his trial for aggravated burglary, the judge gave a jury
direction incorporating the possibility that …it was open to them to convict W of aggravated
burglary notwithstanding that he might have remained outside throughout. The appeal was
allowed. The court preferred a purposive approach to s.10 Theft Act and not a strict
approach. The purpose of s.10 was to deter burglars from taking weapons into the premises.
A getaway driver, or lookout, with a weapon who did not enter the premises committed the
offence of simple burglary.

_____The End______

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