Theft and property offences - Aggravated burglary (s.10 Theft Act 1968)

Learning Outcomes

After studying this article, you will be able to identify and explain the elements of aggravated burglary under s.10 of the Theft Act 1968, including the requirements for burglary, the definition and timing of possession of weapons or explosives, and the necessary mental elements. You will be able to apply these principles to SQE1-style scenarios and distinguish aggravated burglary from basic burglary or other property offences.

SQE1 Syllabus

For SQE1, you are required to understand aggravated burglary as a specific property offence. In your revision, focus on:

• the elements of burglary under s.9 Theft Act 1968 as they relate to aggravated burglary
• the definition and scope of “firearm,” “imitation firearm,” “weapon of offence,” and “explosive” for s.10
• the requirement and timing of possession of such articles during the commission of burglary
• the mental elements (mens rea) for aggravated burglary, including knowledge of possession
• how aggravated burglary differs from basic burglary and related offences
• applying these rules to practical scenarios and MCQs

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What must the prosecution prove for a conviction of aggravated burglary under s.10 Theft Act 1968?
2. Which of the following is NOT a “weapon of offence” for aggravated burglary? a) a kitchen knife picked up inside the property and intended for use against a person b) a crowbar carried for breaking a window, not for use against a person c) a loaded air pistol carried into the property d) a screwdriver carried with intent to use as a weapon
3. At what point must the defendant have the weapon or explosive “with them” for aggravated burglary to be made out?
4. True or false: A defendant can be guilty of aggravated burglary if they are unaware that they have a weapon in their possession during the burglary.

Introduction

Aggravated burglary is a serious property offence under s.10 of the Theft Act 1968. It builds on the basic offence of burglary by requiring the defendant to have with them a firearm, imitation firearm, weapon of offence, or explosive at the relevant time. The presence of such articles increases the risk of violence and is reflected in the higher maximum penalty for aggravated burglary. For SQE1, you must be able to identify the elements of aggravated burglary, define the relevant terms, and apply the law to practical scenarios.

Elements of Aggravated Burglary

To prove aggravated burglary, the prosecution must show:

1. The defendant committed a burglary (s.9 Theft Act 1968)
2. At the time of the burglary, the defendant had with them a firearm, imitation firearm, weapon of offence, or explosive
3. The defendant knew they had the article with them

Burglary: The Basis

Aggravated burglary cannot exist without burglary. The elements of burglary are:

• entry into a building or part of a building
• as a trespasser
• with intent to steal, inflict grievous bodily harm, or do unlawful damage (s.9(1)(a)), or
• having entered as a trespasser, stealing or attempting to steal, or inflicting or attempting to inflict grievous bodily harm (s.9(1)(b))

Key Term: burglary Burglary is entering a building or part of a building as a trespasser with intent to commit theft, grievous bodily harm, or criminal damage, or actually committing or attempting one of those offences after entry.

The Aggravating Article

The “aggravated” aspect is the defendant having with them, at the relevant time, a specified article.

Key Term: aggravated burglary Aggravated burglary is burglary committed while the defendant has with them a firearm, imitation firearm, weapon of offence, or explosive.

Key Term: firearm A firearm is a lethal barrelled weapon of any description, including airguns and air pistols.

Key Term: imitation firearm An imitation firearm is anything which has the appearance of being a firearm, whether or not it is capable of discharging a shot, bullet, or missile.

Key Term: weapon of offence Any article made or adapted for causing injury to, or incapacitating, a person, or intended by the person having it with them for such use.

Key Term: explosive Any article manufactured for producing a practical effect by explosion, or intended by the person having it with them for such use.

Timing: “At the Time”

The article must be “with” the defendant at the relevant time. For s.9(1)(a) burglary, this is at the time of entry as a trespasser. For s.9(1)(b), it is at the time of committing or attempting the ulterior offence (theft or GBH).

“With Them”: Possession and Knowledge

The defendant must have the article “with them” and know they have it. Mere accidental possession is not enough. The article must be accessible and available for use.

Worked Example 1.1

A defendant enters a house as a trespasser, intending to steal. He carries a loaded air pistol in his jacket pocket for protection. He is caught before stealing anything. Is he guilty of aggravated burglary?

Answer: Yes. He entered as a trespasser with intent to steal (burglary) and had with him a firearm (air pistol) at the time of entry.

Worked Example 1.2

A burglar enters a house unarmed but, once inside, picks up a kitchen knife intending to use it if confronted. He then steals a laptop. Is this aggravated burglary?

Answer: Yes, if the knife was “with him” at the time of stealing (the ulterior offence under s.9(1)(b)). The knife becomes a weapon of offence because he intended to use it to cause injury.

Worked Example 1.3

A defendant brings a screwdriver to a burglary, intending to use it only to force a window. Once inside, he uses it to threaten a resident. Is this aggravated burglary?

Answer: Yes. Even if the screwdriver was not originally a weapon, it became a weapon of offence when he intended to use it to cause injury.

The Mental Element (Mens Rea)

The defendant must have the mental element for burglary (knowledge or recklessness as to trespass, and intent to commit or actually committing the ulterior offence). For aggravated burglary, the defendant must also know they have the article with them. If the defendant is unaware of the article’s presence (e.g., a weapon hidden by someone else), aggravated burglary is not made out.

Exam Warning

For aggravated burglary, the prosecution must prove the defendant knew they had the weapon or explosive with them. Accidental or unknown possession is not enough.

Distinguishing Aggravated Burglary from Related Offences

• If the defendant does not have the article with them at the relevant time, it is basic burglary, not aggravated burglary.
• If the article is not a firearm, imitation firearm, weapon of offence, or explosive, aggravated burglary does not apply.
• If the defendant uses force to steal, but not during a burglary, the offence may be robbery, not aggravated burglary.

Revision Tip

Always check the timing of possession: for s.9(1)(a), it is at entry; for s.9(1)(b), at the time of the ulterior offence.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Aggravated burglary under s.10 Theft Act 1968 requires proof of burglary and possession of a specified article at the relevant time.
• The article must be a firearm, imitation firearm, weapon of offence, or explosive, and must be “with” the defendant and known to them.
• The timing of possession depends on whether the burglary is under s.9(1)(a) (at entry) or s.9(1)(b) (at the ulterior offence).
• The defendant must have the mental element for burglary and know they have the article with them.
• Ordinary objects can become weapons of offence if intended for use to cause injury or incapacitate.

Key Terms and Concepts

• aggravated burglary
• burglary
• firearm
• imitation firearm
• weapon of offence
• explosive