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Cases - burglary

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Lecture notes here

AG’s Ref Nos l and 2 (1979) CA

A-G's Reference (No 3 of 1998)

B (& S) v Leathley [1979] Crown Court

Barker (1938) High Court of Australia.

Brewster and others, R v (1998) CA [same offender as in Brewster (1980)]

Brewster, R v (1980) CA

Brown, R v (1985) CA

Brutus v Cozens [1973] HL

Collins, R v [1973] CA

Dorries, R v (1993) CA

Edwards, R v (1996) CA

Farrington v Thomson and Bridgland  [1959] (Australian case)

Hillen and Pettigre v ICI (Alkali) Ltd (1936) HL

Jones and Smith, R v (1976) CA

Laing, R v (1995) CA

Lillis, R v [1972] QBD

Low v Blease [1975] DC

Manning, R v (1871) CA

Metropolitan Police Commissioner v Wilson [1984] HL

Moir v Williams [1892] CA

Norfolk Constabulary v Seekings and Gould [1986]

O’Leary, R v (1986) CA

Ryan, R v [1996] CA

Stevens v Gourley (1859) Byles J

The Calgarth [1927] CA

Walkington, R v (1979) CA

AG’s Ref Nos l and 2 (1979) CA

^[Burglary 9(1)(a) – ulterior offence - conditional intent to steal – even if there is nothing worth stealing]
D2 was caught inside a house.  D1 found attempting to burgle a house through French windows he admitted he intended to steal “anything lying around”.  Both acquitted by the trial judge because it had not been specified by the prosecution what items they intended to steal.

 

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

If it subsequently turns out that there is nothing worth stealing in the building, the defendant still may be prosecuted for burglary.
Similar considerations apply where the charge relates to attempted burglary.

 

Not guilty, but would be now

AG's Reference (No 3 of 1998) CA

^[Burglary - mens rea does not have to be proved if D is insane - prosecution need only prove he did the act or omission]

D had been charged with aggravated burglary and affray.

He was acquitted at trial because he was insane at the time of the offence and could not have formed the necessary intent

The judge felt bound by the decision in R v Egan [1998] and directed the jury to acquit.

 

Held: In determining whether "the defendant did the act or made the omission charged" for the purposes of the 1883 Act, and assuming insanity, the Crown was required to prove the ingredients which constituted the actus reus of the crime, but it was not required to prove the mens rea of the crime alleged.

 

The judge’s reasoning was wrong.

 

Not guilty but would be now

B (& S) v Leathley [1979] Crown Court

^[Burglary – building – some degree of permanence required]
DD stole meat from a freezer container in a farmyard. The freezer was 25 feet long with 7 feet square cross-section, weighing about three tons and had been in place for two or three years.

 

Held: The freezer was, therefore, ‘a structure of considerable size and intended to be permanent or at least to endure for a considerable period’, that is, the court was satisfied that the test of Byles J in Stevens v Gourley (1859) was fulfilled. In addition its doors were equipped to keep trespassers out and it was connected to an outside source of electricity. Consequently, the court concluded that it was a building for the purposes of the offence of burglary.

 

Guilty

Barker (1938) High Court of Australia

^[Burglary – entry – exceeding licence to enter]
D committed burglary by entering the house of a neighbour.  The neighbour was away and had asked D to ‘keep and eye on the house’.  D had a key and entered with intent to steal.

 

Held:

"If a person enters for a purpose outside the scope of his authority the he stands in no better position than a person who enters with no authority at all”

 

Brewster and others, R v (1998) CA
[same offender as in Brewster (1980)]

^[Burglary – sentencing guidelines]
D a formidable burglar with 33 previous convictions including R v Brewster (1980) whose criminal career started at the age of 8 Lord Bingham LCJ laid down sentencing guidelines for burglars, including self-induced addiction cannot be relied on as mitigation.

"There are some professional burglars whose records show that from an early stage they have behaved as predators preying on their fellow citizens, returning to their trade almost as soon as each prison sentence has been served. Such defendants must continue to receive substantial terms of imprisonment. There are, however, other domestic burglars whose activities are of a different character, and whose careers may lack any element of persistence or deliberation. They are entitled to more lenient treatment."

Sentence of 9 years confirmed

Brewster, R v (1980) CA

 

^[Burglary – sentencing - 'professional burglars’]
A sentence of 10 years was approved in the case of such an offender, who had convictions for 57 burglaries in the previous 10 years and had committed two more burglaries while on parole, involving property worth £70,000.

Lawton LJ

"There is no hope of rehabilitating this man. There is no hope that he will be deterred by prison sentences. All that the courts can do with him and his like is to ensure that they do not carry out raids on other people's houses for very substantial periods. That is the justification for this sentence."

Brown, R v (1985) CA

^[Burglary – enters – effective – not necessary to be complete or substantial] 
D was seen leaning through a broken shop window with the top half of his body inside a shop as though he was rummaging around. His feet were on the ground outside. He claimed that he could not be said to have entered a building if only part of his body had been inside it:

 

Held: The word "enter" in s 9 of the Theft Act 1968 meant "effective" entry; it was not necessary for the entry to be complete or even substantial, so long as the entry was effective for D to carry out the ulterior offence.

The proposition that a person could break a shop window, pass his hands through the window into the shop and steal and not be held as having entered as a trespasser was incredible.

 

Guilty

Brutus v Cozens [1973] HL

^[Burglary – building- is a matter of fact for the jury]
The instant case was about the meaning of the word insulting when D interrupted a tennis match at
Wimbledon, but it has been applied to the interpretation of other words. ‘Building’ is an ordinary word the meaning of which is a ‘matter of fact and degree’ to be determined by the trier of fact (the jury) and not a matter of law for the judge.  This opens up the possibility of the defence of mistake.

 

Collins, R v [1973] CA

 

 

 

 

^[Burglary – trespasser – intention – mens rea require – entry must be intentional or reckless]
D went past a house where he knew a young lady lived. He climbed a ladder up to her window and peered in. She was lying naked on the bed, which was near the window. Collins descended the ladder, took off all his clothes, except his socks, and climbed back up the ladder. As he reached the window, the young lady woke up saw a naked man with an erect penis and, thinking he was her boyfriend invited him in; they then had sexual intercourse. She then realised that it was not her boyfriend.

 

Held: In order to be convicted of burglary, D had to have made a substantial and effective entry as a trespasser before consent was given.

The jury had not been asked to consider the vital question whether he had entered the building as a trespasser and whether he knew or was reckless as to whether he was entering as a trespasser. It was accepted that an invitation from the young lady would have been sufficient to make Collins’s entry not trespassory and so consideration should have been given to when her invitation was made, that is, whether he was outside the building at that time or not. Presumably someone could override such permission with a greater interest in the building in question.

The court expressed its view on mens rea as follows. . .

“there cannot be a conviction for entering premises ‘as a trespasser’ … unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent"

Edmund Davies LJ:

"a serious offence like burglary should require mens rea in the fullest sense of the phrase: D should be liable for burglary only if he knowingly trespasses or is reckless as to whether he trespasses or not"

Not guilty

Dorries, R v (1993) CA

[Burglary - sentencing]
D removed bricks from a wall of a shop, he had effected entry, and property worth £600 had been taken. A hammer, crowbar and radio scanner were found in their car. 

 

Held: Only a custodial sentence could be justified, but reduced the sentence from ten months to six months. 

Edwards, R v (1996) CA

 

[Burglary – dwelling - sentencing]
The appropriate level of sentencing for serious house burglary where the house was unoccupied was three years.

Where the house was occupied and the burglary was at night the bracket would start at four years.

 

Farrington v Thomson and Bridgland [1959] (Australian case)

^[Burglary – entry – exceeding licence to enter]
A police officer entered a hotel intending to commit a tort, and so was a trespasser.

 

Held: The tacit invitation to the public to enter the hotel did not extend to persons entering to commit a tort or a crime.

 

Hillen and Pettigre v ICI (Alkali) Ltd (1936) HL

^[Burglary – trespasser includes a person who exceeds the permission given to enter]
Members of a stevedore’s gang employed to unload a barge were held to be trespassers when they placed kegs on the hatch covers knowing that this was wrong and dangerous.

A person is a trespasser for the purposes of sec 9(1)(b) if:

“…he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless whether he is entering in excess of the permission that has been given to him to enter, providing the facts are known to the accused which enable him to realise that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission…”

and

Lord Atkin

[that the general permission to an invitee] “….only extends so long as and so far as the invitee is making what can reason ably he contemplated as an ordinary and reasonable use of the premises (he is not invited to use any part of the premises for purposes which he knows are wrongfully dangerous and constitute an improper use).”

 

Jones and Smith, R v (1976) CA

 

^[Burglary -  trespasser – exceeding licence to enter]
D stole two televisions from his father's house, which he had general permission to enter. He had left home but was allowed to visit. 

 

Held: D was a trespasser if he entered premises knowing that or being reckless whether he was entering in excess of any permission that had been given to him to enter.

 

Guilty

Laing, R v (1995) CA

[Burglary – must enter as a trespasser – building or part of a building]
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.

 

Held: The prosecution should have alleged he was a trespasser when entering the stock room.

 

Not guilty

Lillis, R v [1972] QBD

^[Burglary 9(1)(b) – can be convicted alternatively of ulterior offence]
D took a rotary mower from the conservatory of a house to repair it with the permission of the owners’ daughter, but the owners never saw the mower again.
D had dishonestly appropriated it, not in the conservatory, but outside.

Held: It could be shown by striking out everything which had not been proved the theft fell within s 6(3) Criminal Law Act 1967. It was immaterial that the theft, having been committed outside the building, could not have formed an ingredient of the charge of burglary.
 

Gulity

Low v Blease [1975] DC

[Burglary – ulterior offence – electricity cannot be stolen]
Electricity cannot be stolen, only fraudulently abstracted.
So entering and using electrical appliance – for example a telephone - is not burglary. (would be an offence of dishonestly abstracting electricity sec 13 TA 1968

Manning, R v (1871) CA

^[Burglary – building – can be incomplete structure]
A building does not have to be a finished structure.  The building was a house which was very nearly complete the walls were built and finished, the roof put on and finished, a considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering:, but the court was satisfied that structures not as complete could also be ‘buildings’.

 

Held: It was a building within the meaning of the section (in the Malicious Damage Act).

Lush LJ

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

Nothing is so dangerous as to limit, by precise definition an Act which is for the public benefit, and which should therefore be construed according to its plain ordinary sense (Byles J). 

Metropolitan Police Commissioner v Wilson [1984] HL

^[Burglary – GBH – not necessary that there be an assault]
D caused GBH to another man in a house.

 

Held: It is unnecessary to prove an assault

 

The case involved the ‘red pencil test’; that means a person can be convicted of a lesser offence when indicted for a more serious offence (everything not proved is removed with a fictional red pencil and what is left D is convicted of (Section 6(3) Criminal Law Act 1967).  In this case could D be convicted of assault occasioning actual bodily harm?

 

GBH can be inflicted (sec 20) or caused (sec 18) Inflicting grievous bodily harm does not necessarily include an allegation of assault.

The following are examples of the infliction of grievous bodily harm which do not involve assault: Interfering with the brakes or engine of a motor car as a result of which an occupant of the car is seriously injured in an accident. Putting a person in fear as a result of which in their attempt to escape they injure themselves. Making a hole in a boat in consequence of which a passenger therein nearly drowns. Omitting to give a sick person a prescribed drug.

 

Guilty of ABH

Moir v Williams [1892] CA

^[Burglary – building – must have some permanence]
A case concerning a surveyor’s fee, for a building that was divided up.

 

Held: It was one building.

Esher MR

“Unless there was something in the Act to extend or alter its meaning it must be given its ordinary and usual signification”

 

Norfolk Constabulary v Seekings and Gould [1986]

^[Burglary – building must have some degree of permanence – the character of a building]
D and accomplice tried to get into two articulated lorry trailers being used by a supermarket as temporary storage space while the building was being redeveloped.  Each was supported by its own wheels and struts and an electric cable serviced the lighting.  Access was by way of steps.

 

Held: The character of the structure had not changed form that of a vehicle and therefore was not a building.  It seems that something will not qualify as a ‘building’ unless it has some degree of permanence; in this case it still had its wheels.  (note an inhabited vehicle or vessel can only be a building when it is used as a dwelling)

O’Leary, R v (1986) CA

^[Burglary – 9(1)(a) necessary to show intention to commit ulterior offence on entry]
D entered a house with intent to steal.  In the house he picked up a knife and threatened the householder (D was therefore charged with aggravated burglary).

 

Held:  It must be shown that D entered with mens rea i.e. he either knew that he was entering as a trespasser or was reckless as to whether this was so.

 

Guilty (on the facts of an aggravated burglary) 

Ryan, R v [1996] CA

^[Burglary – entry – need not be substantial or effective]
D burgled a house but only got as far as being trapped by his neck with only his head and right arm inside a window.  He was not in a position to steal.

 

Held: It cannot have been intended that D must have got so far into the building as to be ale to accomplish his unlawful purpose.

It appears therefore that we return to the common law position that the body or part of the body or an extension of the body used or intended to facilitate theft amounts to entry where as entry by a tool for effecting entry does not.

 

Guilty

Stevens v Gourley (1859) Byles J

^[Burglary – building – classic definition]
This case involved a contract for the erection of a building in contravention of the Metropolitan Building Act 1855 (repealed) and could not be enforced. It was a structure of wood, of considerable size, 16 feet by 13, and intended to be permanently used as a shop.

 

Held: It was a ‘building’ within, although not let into the ground, but merely laid upon timbers upon the surface.

A building comprised….

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

The Calgarth [1927] CA

[Burglary – entry – exceeding licence to enter]

Scrutton LJ

“When you invite a person into your house to use the staircase you do not invite him to slide down the banisters”

Walkington, R v (1979) CA

^[Burglary - building or a part of a building – mens rea of trespass – intentional or reckless]
D went behind a counter in a large store and opened a till drawer. The counter was movable, but occupied a clearly identified area. It was empty so he slammed it shut.  D was convicted for burglary.  D claimed he did not realise that he was not allowed to go behind the counter and therefore had not entered as a trespasser. 

 

Held: it is for the jury to decide whether the area physically marked out by a counter was sufficiently segregated to amount to a "part of a building" from which the general public are excluded. It was clear that the public was impliedly prohibited from entering the counter area and D knew this.

 

Guilty


 

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