Revise Burglary as defined in s9 Theft Act 1968 for Cambridge 9084 (2.2.3)

Section 9 of the Theft Act 1968 creates two distinct ways of committing burglary. The first, under s9(1)(a), is committed when a person enters a building (or part of a building) as a trespasser with intent to commit one of the ulterior offences: theft, grievous bodily harm (GBH), or criminal damage. The offence is complete at the moment of entry, regardless of whether the intended crime is actually carried out. The second form, under s9(1)(b), occurs when a person, having already entered a building as a trespasser, then proceeds to commit or attempt to commit theft or GBH. Here, the offence is complete when the defendant commits or attempts the ulterior act. The key distinction lies in the timing of the mens rea for the ulterior offence.

The actus reus of burglary requires 'entry' into a building 'as a trespasser'. The term 'entry' is not defined in the Act, so its meaning has been developed through case law. The initial test in R v Collins (1973) required an 'effective and substantial' entry. However, this has been superseded. In R v Brown (1985), a defendant leaning through a broken shop window was deemed to have entered. The current authority, R v Ryan (1996), established a very low threshold: the defendant was found guilty when his head and arm became stuck in a window, and he was unable to steal anything. This confirms that the entry of any part of the defendant's body into the building is sufficient. The entry must also be as a 'trespasser', meaning without consent or legal authority.

The term 'building' is given a partial definition in s9(4) of the Act, which states it includes an 'inhabited vehicle or vessel'. This applies even when the person who inhabits it is not there. Case law has expanded this: in B and S v Leathley (1979), a 25-foot freezer container resting on railway sleepers and connected to electricity was held to be a building due to its size and permanence. In contrast, in Norfolk Constabulary v Seekings and Gould (1986), two lorry trailers used for storage were not considered buildings as they still had wheels and were mobile. A person can also become a trespasser by exceeding their permission. In R v Jones and Smith (1976), the defendant had general permission to be in his father's house but was convicted of burglary because he entered with the intention to steal, which was outside the scope of his permission. Similarly, entering a restricted area, like a shop counter, makes one a trespasser in that 'part of a building' (R v Walkington, 1979).

The mens rea for burglary is complex as it has two distinct parts. First, the defendant must have the mens rea for the initial trespass. This means they must either know they are a trespasser or be subjectively reckless as to whether they are trespassing. An honest but mistaken belief that they have permission to enter means they are not a trespasser. Second, the defendant must have the mens rea for the ulterior offence. For s9(1)(a), this is the intention to commit theft, GBH, or criminal damage, formed at the point of entry. Importantly, conditional intent (e.g., intending to steal 'anything of value') is sufficient, as confirmed in AG's Reference (Nos 1 and 2 of 1979). For s9(1)(b), the mens rea for theft or GBH is formed after entry.

Aggravated burglary is a more serious form of the offence, carrying a maximum sentence of life imprisonment. A person is guilty of aggravated burglary if they commit any burglary (under s9(1)(a) or s9(1)(b)) and 'at the time has with him' a firearm, imitation firearm, weapon of offence, or explosive. 'At the time' means at the point of entry for a s9(1)(a) burglary, or at the time of committing the ulterior offence for a s9(1)(b) burglary. A 'weapon of offence' is any article made or adapted for causing injury, or which the person has with them for that purpose. This means an innocent item, like a screwdriver, can become a weapon of offence if the burglar intends to use it to injure someone if confronted.