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.
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.
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
guilty, but would be now
AG's Reference (No 3 of 1998)
- mens rea does not have to be proved if D is insane - prosecution need
only prove he did the act or omission]
been charged with aggravated burglary and affray.
acquitted at trial because he was insane at the time of the offence and
could not have formed the necessary intent
judge felt bound by the decision in
R v Egan  and directed the jury to acquit.
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
judge’s reasoning was wrong.
guilty but would be now
B (& S)
v Leathley  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.
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.
(1938) High Court of
^[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.
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
"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
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:
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
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.
Brutus v Cozens  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
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  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.
In order to be convicted of burglary, D had to have made a substantial
and effective entry as a trespasser before consent was given.
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.
court expressed its view on mens rea as follows. . .
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"
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"
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.
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.
the house was occupied and the burglary was at night the bracket would
start at four years.
Farrington v Thomson and Bridgland  (Australian case)
^[Burglary – entry – exceeding licence to enter]
A police officer entered a hotel intending to commit a tort, and so was
The tacit invitation to the public to enter the hotel did not extend to
persons entering to commit a tort or a crime.
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.
person is a trespasser for the purposes of sec 9(1)(b) if:
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
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
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.
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.
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.
The prosecution should have alleged he was a trespasser when entering
the stock room.
Lillis, R v  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
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
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.
Blease  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
It was a building within the meaning of the section (in the Malicious
is sufficient that it should be connect and entire structure. I do not
think four walls erected a foot high would be a building”
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
^[Burglary – GBH – not necessary that there be an assault]
D caused GBH to another man in a house.
It is unnecessary to prove an assault
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?
be inflicted (sec 20) or caused (sec 18) Inflicting grievous bodily harm
does not necessarily include an allegation of assault.
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.
Williams  CA
^[Burglary – building – must have some permanence]
A case concerning a surveyor’s fee, for a building that was divided up.
It was one building.
“Unless there was something in the Act to extend or alter its meaning
it must be given its ordinary and usual signification”
Constabulary v Seekings and Gould 
^[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.
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
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
(on the facts of an aggravated burglary)
Ryan, R v  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
It cannot have been intended that D must have got so far into the
building as to be ale to accomplish his unlawful purpose.
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.
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.
It was a ‘building’ within, although not let into the ground, but merely
laid upon timbers upon the surface.
structure of considerable size and intended to be permanent or at
least to endure for a considerable time”
Calgarth  CA
[Burglary – entry – exceeding licence to enter]
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.
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.