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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.

[*The words "or raping any person therein" were removed by Schedule 17 of the Sexual Offences Act 2003, Sch 7 Para 1]


Sec 63 of the Sexual Offences Act 2003 creates a wider offence than the old 'rape' element of the Theft Act and includes any relevant sexual offence while trespassing.


Section 9 Theft Act 1968 Section 9 creates two offences

Committed on entry

Where a person:

(a) Enters any building or part of a building as a trespasser with intent to commit theft, grievous bodily harm or unlawful damage, or

Not committed until ulterior offence committed

(b) Having entered a building as a trespasser steals or attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm upon any person therein.

Correct penalty

(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding--

(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;

(b) in any other case, ten years.

Crime (Sentences) Act 1997

A minimum custodial sentence of three years must be imposed by the court where an offender aged 18 or over is convicted of a third "domestic burglary".

Unoccupied building

Was three years dwelling occupied at night is 4 years’ Edwards (1996)

"Professional burglars"

10 years Brewster (1980)

Lord Woolf

In 2002 Lord Woolf directed that some burglars should not be given a prison sentence.

Other than from a dwelling

6 months Dorries (1993)

Alternative Verdicts

The accused may be convicted of the underlying offence he committed in the building Lillis [1972].

Actus Reus

The actus reus

Revolves around entry of a building as a trespasser.

Building – probably not a tent or a telephone box

(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.


Houses, flats, inhabited vessels, caravans in fact any building actively occupied is a dwelling, except at tent (the general view is that a tent has insufficient permanence even if it being lived in).

Other buildings   

The Act specifies a building, not a dwelling although most people think of burglary when their home is invaded.

Stevens v Gourley (1859) Byles J

A building comprised “a structure of considerable size and intended to be permanent or at least to endure for a considerable time”

Boats can be

Inhabited vehicle or vessel.  Consider caravans cf blood transfusion and similar trailers.  Must be actively occupied.

Garden sheds

And similar structures are without doubt buildings.  The building does not need to be inhabited so would include farm outhouses, stables or silos.  It does not need to have a roof, for example a partly constructed building or one that has had it blown off in a storm.

Manning (and Rogers) (1871)

Lush J “…it is sufficient that it should be a connected and entire structure.  I do not think four walls erected a foot high would be a building.”

Norfolk Constabulary v Seekings & Gould (1986)

Meaning of building widely construed. Not articulated lorry trailers

B (& S) v Leathley (1979)

Includes a 25’ old freezer containers without wheels and immobile.

Walkington (1979)

Areas 'within' buildings included (part of a building) if there is no general access to them.

D went inside a 'till island' to look into the drawers of the island guilty of burglary, he was a trespasser in part of the building.

(Dagenham’s – Oxford Street).


Laing (1995)

D hid himself in the stock area of a department store.  When the store had closed he was discovered. There was no evidence that he was a trespasser when he entered the store. The prosecution should have alleged he was a trespasser when entering the stock room. He was acquitted.

Hotel Rooms

Similar to Walkington, they are parts of the building that can be burgled.

‘Enter’ as a ‘Trespasser’   – there must be an entry - the entry must be trespassory

Intentionally or recklessly
(Subjective -Cunningham)

A subjective account must be taken as to whether the accused saw himself as a trespasser.


If D enters accidentally, he is not necessarily a trespasser for the purposes of burglary, Lord Edmund Davies in Collins.


D must be a trespasser in civil law, plus an element of mens rea

Stumbles in or is pushed in he is not a trespasser at civil law

If D stumbles into a building or is pushed he is not a trespasser in civil law, and therefore not a trespasser for the purposes of burglary.

But, if D enters a building whilst drunk that would be reckless and would be sufficient to make him a trespasser.

Civil law trespass alone is not enough D must have knowledge he is a trespasser or be reckless as to whether he is a trespasser

The mens rea required in relation to the trespassory entry under s 9(1)(a) is knowledge at the time of entry that one lacks proper permission.


Under s 9(1)(b) D must have knowledge, at the time of the commission of the ulterior offence that, when he entered, he did not have proper permission to do so.


An element of the actus reus is "having entered as a trespasser" the mens rea must be "being aware (when stealing) that one has entered as a trespasser" (not "being aware, at the time of entry, that one is entering as a trespasser").

In criminal law “mens rea” is a necessary ingredient of trespass and therefore a knowledge of the fact of being a trespasser, or, at the very least, recklessness as to whether or not entering the building of another is without that other’s consent, is essential.

Lawful entry cannot become trespass because of subsequent actions

Entry with the occupier's consent cannot be trespass.


If the entry to the building is lawful (with consent of the occupier) and the invited person commits a hostile act, in the civil law of Tort this is known as the doctrine of “trespass ab initio” which has the effect of making the original entry a trespass and the person can be asked to leave.  This principle has no place in the offence of burglary.  The entry has to be trespassory.


Entry of the "wrong" building by mistake is a trespass, more so if the person makes the mistake because they are drunk.


Entering a building or part of a building innocently, and then D steals, guilty of 9(1)(b)

If an hotel guest enters a room with the intention of going to bed, but enters a room that is identical to his room in complete innocence (we shall assume for the purpose of the example the key operates both rooms) although he is a trespasser, according to the above principles, he is not a trespasser for the purposes of section 9(1)(a) because he has no mens rea.


If having entered the room he realises it is not his room because the lawful occupier has left out her jewels he would then know he had entered the part of the building as a trespasser, if he then steals the jewels he is guilty of 9(1)(b).


Supposing he finds his wife in the room with the occupier against whom he then inflicts GBH, this too would be burglary, for the same reason.


Substantial entry must have taken place before consent was given in order for the entry to be complete

Collins (1972)

(Naked man on windowsill case).


Key word is no longer ‘effective’



Brown (1985) Re-evaluated this situation.

Up to jury, whether he has ‘entered’

Ryan [1996] (Found jammed in a widow, had to be rescued by the Fire Brigade).  His entry was neither substantial nor effective (because he could not steal; or indeed do anything.   This is now the preferred case and restores the Common Law position before the Theft Act – that any part of the body entering constitutes and entry.

Entry by the tool of theft

So entry by an instrument used to effect entry, say a chisel or a jemmy would not be burglary, but entry of any part of the body or a tool, say a fishing rod, used to steal would be an entry.

Entry by innocent agent

Putting a child under ten (or a monkey) into a building would constitute an entry in the same way as an inanimate instrument.


Permission to enter

A person in possession (an occupier) can give and withdrawn permission, Father can exclude daughter’s friends; but until he does, they are not trespassers. She can invite them in because she too is in possession (as was the girl in Collins).  


If the father had earlier banned the daughter’s guests, the friends would not be trespassers until they knew of the ban.  However, the overarching authority of the parent would only apply to such activities the parent(s) would approve of.  For example, social intercourse after midnight but probably not any other type of intercourse.


Exceeding the general permission to enter makes D a trespasser

Jones & Smith (1977)
A son 'stole' with an accomplice a television set from his father's house when he was visiting, as he was allowed to do.

The Ulterior offences

Mens Rea – ulterior offences are specific intent.  Always Cunningham recklessness throughout.  (Rape and damage can be basic intent – Majewski – but also can be intended, so require specific intent).  Remember the mens rea of the ulterior offence has to be proved, in addition to intentional or reckless trespass.  So for example, theft requires proof of dishonesty and intention to deprive.

Laing [1995]

Mens rea must accompany trespassory entry.

Low v Blease [1975]

Electricity cannot be stolen, only fraudulently abstracted.
So entering and using electrical appliance is not burglary.



D can be convicted of the ulterior offence, if burglary cannot be fully proved

D can be convicted of the ulterior offence because of the provisions of 6(3) Criminal Law Act 1967. 


By striking out everything which is not been proved in a charge of burglary if what remains (for example the theft) is proved then D can be convicted of the lesser ulterior offence.


It is immaterial that the remaining offence could not have formed an ingredient of the charge of burglary, for example a theft outside a building, as was the case in R v Lillis [1972].


Intent to Commit GBH

Metropolitan Police Commissioner v Wilson [1984]

Unnecessary to prove an assault


Does not actually say in the Act that the offence of GBH is necessary but it is generally thought that it is what is meant.

Intent to Commit Rape

This offence was removed by the Sexual Offences Act 2003.

Intent to Commit Unlawful Damage

Criminal damage contrary to the 1971 is probably what is meant.

Conditional Intent

Prior to 1979 conditional intent was not sufficient = "a burglars' charter"

Walkington [1979] and Attorney-General’s References (Nos 1 and 2 of 1979) [1980] Overruled R v Husseyn (1977) who opened a van not knowing there was sub-aqua kit that could be stolen.

Conditional intent will suffice, meaning quite simply that all that is required is intent to steal. It is not necessary to prove what was the objected that D intended to steal

AG’s Ref Nos l and 2 (1979) D intended to steal “anything lying around”.

If it subsequently turns out that there is nothing worth stealing in the building, the defendant still may be prosecuted for burglary.


Law Commission Report No. 177, Criminal Law: A Criminal Code for England and Wales Volume 2: Commentary on Draft Criminal Code Bill, 1989, p. 271

"16.8 Clause 147: burglary. This clause takes the opportunity to correct a plain and unintended error in section 9 of the Theft Act 1968. Section 9(1)(1)(a) expressly requires entry as a trespasser with intent to commit an 'offence'. But section 9(1)(b) does not expressly require the infliction of grievous bodily harm, which may convert a trespassory entry into burglary, to be an offence; if paragraph (b) were taken literally, burglary could be committed accidentally by someone in the building as a trespasser. This anomaly is an accident of the parliamentary proceedings on the Theft Bill. (The matter is explained by Professor J.C. Smith in a comment on Jenkins at [1983] Crim. L.R. 386.) Our draft eliminates the error, consistently with known parliamentary intention and, we believe, uncontroversially."

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