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Chapter 6: Burglary, main differences, 9 (1) (a)
must have had the…
Chapter 6: Burglary
- in collins 1972 it was said that entry into the building had to be "substantial and effective" - suggests the whole body has to be inside
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- common elements of the actus reus
the following has to be proved for both S9 (1)(a) & S9 (1)(b)
- a trespasser = someone who enters a building without express or implied permission. if the accused has such permission then there is no trespass and hence no conviction for burglary
- if collins was already kneeling on the inner sill before she invited him then he would be a trespasser and burglar.
- there is one situation where even if the accused has permission to enter he can become a trespasser, and hence a burglar.
- this is where he enters with the intention to do something for which he is not invited - where they have 'gone beyond their permission'.
- Jones and Smith 1976 D's had permission of Smith's father to enter the house at any time. on one occasion they entered with intention to steal 2 of his TVs. Defence claimed that as there weren't trespassers this was not burglary. CoA disagreed stating that the father had not consented to entry for the purposes of theft. they had therefore exceeded their authority to enter-, gone beyond their permission to enter - and become trespassers
- this decision has been criticised because it blurs the distinction between theft & burglary.
- Collins 1972 naked drunk - except for his socks - climbed a ladder intending to have sex with a woman he had seen earlier. her window was open and she was in bed. she was very drunk and thinking it was her boyfriend at the window she invited him into her bed. it was only after they had sex she realised her mistake. she slapped him, locker herself in the bathroom, and he left. he couldn't be convicted of rape because she had consent. he couldn't be convicted of a S9(1)(a) burglary - entry as a trespasser with intent to rape, because he was not a trespasser if she had invited him in.
- a building or part of a building
- the word isn't defined in the act but in Stevens v Gourley 1859 it was defines as "as structure of considerable size and intended to be permanent or at least to endure for a considerable time"
- hence it may include a greenhouse or a factory but not a tent.
- in B & S Leathley 1979 - very large walk in freezer being used for storage was situated in a farmyard and connected to the electricity supply. it was regarded as a building for the purposes of burglary
- in Norfolk Constabulary v Seekings and Gould 1986 - 2 enormous lorry trailers were being used by a supermarket as temporary storage place. they were connected to electricity supply by a cable running from the market. in this case it was decided that they were not buildings and hence the thieves weren't burglars. this may be because they still had their wheels attached and hence could be easily moved.
- Vessels and vehicles may be regarded as "buildings" if inhabited (S.9 (4))
- hence stealing from caravans or houseboats that people live in may be burglary. if they're not lived in then vehicles are not buildings
- this phrase is included in order to cover those who have permission to be in one part of the building but then trespass by going into another part
- this separate "part" may be another room but it could also be any space clearly separated from the rest
- Walkington 1979 - accused was a shopper & therefore has implied permission to be in Debenhams. he went behind the cash desk to see if there was any money in a half open till. at this point he became a burglar because he had entered part of the building as a trespasser. as result, his appeal against burglary with intent to steal - S.9 (1) (a) - was rejected.
- common elements of mens rea
- intention or subjectively recklessness as to trespassing
- Collins 1973 - if accused is not aware of the risk that he may be trespassing he will not be guilty of burglary
- add conditional intention is sufficient for burglary Walkington 1979 - thief, who only intends to take something if he finds something he wants, and then takes nothing cans till be guilty of burglary. in Walkington the till was empty so the accused took nothing but could still be convicted of burglary
- this depends on whether the accused is charged with S 9 (1) (a) or (b)
- 9 (1) (a) - requires the intention to commit the ulterior crime at the time of entry
- 9 (1) (b) - does not require this intention on entry, but it must be proved that once inside, the accused actually commits or attempts to commit one of the ulterior crimes
- example of the difference
- stranger wanders into a party to have some fun but later sees a wallet lying around and takes it. he couldn't be convicted of s 9 (1)(a) because he didn't have the intention to commit theft at the time of entry. he could however, be convicted of s 9 (1) (b) because once inside the building he committed the ulterior crime.
- the Theft Act 1968 as amended defines two separate burglary offences. these can be summarised as:
- S9 (1) (A) - entering a building or any part of a building as a trespasser with intent to commit theft, GBH, or criminal damage.*
- S9 (1) (B) - having entered a building or any part of a building as a trespasser he commits or attempt to commit theft or GBH.
- *under the 1968 Act rape was also one of the ulterior crimes. it was removed by the Sexual Offences Act 2003
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9 (1) (a)
must have had the intention to commit ulterior crime at time of entry
not necessary to have committed or attempted to commit the ulterior crime
ulterior crimes: criminal damage; theft; GBH
9 (1) (b)
not necessary to have had that intention at time of entry
must have committed the ulterior crime or attempted to commit it.
AR and MR of ulterior crime must be proved
ulterior crimes: theft; GBH; OR attempted theft/GBH