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]
The accused may be convicted of the underlying offence he committed in the
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
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).
The Act specifies a building,
not a dwelling although most people think of burglary when their home is
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
cfblood transfusion and similar trailers.Must be
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.
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.
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 account must be taken as to whether the accused saw himself as a
If D enters accidentally, he is not
a trespasser for the purposes of burglary, Lord Edmund Davies in
D must be a trespasser in civil law, plus an element of
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
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
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.
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).
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
(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.
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
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 but probably not any other type
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)
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.
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  Crim. L.R. 386.) Our draft eliminates the
error, consistently with known parliamentary intention and, we believe,