Theft and property offences - Aggravated burglary (s.10 Thef...

Learning Outcomes

This article outlines aggravated burglary under s.10 of the Theft Act 1968, including:

• The constituent elements of aggravated burglary, anchored in the underlying burglary offence under s.9 and its two limbs.
• Statutory definitions and exam-focused interpretations of “firearm,” “imitation firearm,” “weapon of offence,” and “explosive,” with illustrative examples.
• How timing of possession under s.9(1)(a) and s.9(1)(b) operates, and what amounts to having an article “with” the defendant.
• The required mens rea for aggravated burglary, including knowledge of possession and the irrelevance of any intention to use the article.
• Distinctions between aggravated burglary, basic burglary, robbery, and other related property or weapons offences frequently tested in SQE1 MCQs.
• Case-guided applications that show how ordinary tools become weapons through intent, and how courts treat imitation firearms.
• Common multi-offender scenarios, including secondary liability where one offender is armed and others are not, and knowledge requirements.
• Practical exam techniques for analysing problem questions, spotting timing pitfalls, and avoiding common misconceptions about classification of articles.

SQE1 Syllabus

For SQE1, you are required to understand aggravated burglary as a specific property offence, with a focus on the following syllabus points:

• 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
• the distinction between s.9(1)(a) and s.9(1)(b) burglary and how that affects the “at the time” requirement in s.10
• case-guided applications on “has with him” and ordinary items intended for use as weapons
• offence classification and venue: aggravated burglary is indictable only and carries a maximum penalty of life imprisonment

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. Aggravated burglary is an indictable-only offence, tried in the Crown Court, and carries a maximum sentence of life imprisonment; its seriousness often turns on the nature of the building (e.g. dwelling) and the impact on occupants.

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

Elements of Aggravated Burglary

To prove aggravated burglary, the prosecution must show:

• The defendant committed a burglary (s.9 Theft Act 1968)
• At the time of the burglary, the defendant had with them a firearm, imitation firearm, weapon of offence, or explosive
• 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.

In both forms of burglary, “entry” need not be substantial: entry occurs when any part of the body crosses the threshold. Entry may also be effected by an instrument or by an innocent agent. A “building” includes structures with some permanence and “part of a building” captures areas restricted to the offender (e.g. behind a shop counter). A person is a trespasser if they exceed or do not have permission to be in the relevant area. For s.9(1)(a), the intent to commit the ulterior offence must exist at the point of entry; conditional intent (e.g. to steal if there is something worth stealing) is sufficient. For s.9(1)(b), the offence is committed when the defendant actually steals or inflicts GBH (or attempts to do so) having entered as a trespasser; criminal damage is not an ulterior offence for s.9(1)(b).

The Aggravating Article

The “aggravated” aspect is the defendant having with them, at the relevant time, a specified article. The statutory categories are interpreted broadly but with practical limits.

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.

Ordinary items can therefore become “weapons of offence” when the defendant intends to use them against a person (for example, a screwdriver, hammer, rope to incapacitate, or a sock as a gag). Conversely, an item carried only as a tool (e.g. a crowbar solely for prising open a window) is not a weapon of offence unless there is evidence of an intent to use it to cause injury or incapacitation. Firearms include air pistols and air rifles; the weapon need not be loaded or operable for aggravated burglary if it is an imitation firearm or otherwise within the statutory categories. Matches are not “explosives,” but articles manufactured to create explosive effects are.

Timing: “At the Time”

The article must be “with” the defendant at the relevant time. Timing tracks the type of burglary charged:

• s.9(1)(a): at the time of entry as a trespasser
• s.9(1)(b): at the time of committing or attempting the ulterior offence (theft or GBH)

Case law illustrates that a burglar who enters unarmed but arms themselves inside the premises will be guilty of aggravated burglary if the charge is based on s.9(1)(b) and the weapon is with them when stealing or inflicting GBH (e.g. arming with a kitchen knife in the house and then demanding property). By contrast, if the defendant enters armed but discards the weapon before committing any ulterior offence, aggravated burglary will not be made out. The key is whether the defendant has the article with them at the moment the burglary is “complete” per the relevant limb.

“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 under the defendant’s control; it need not be in their hand. Weapons carried in a pocket, waistband, bag, or holdall may suffice if they are under the defendant’s control and readily accessible. The law does not require the defendant to intend to use the article in the burglary; it is the availability of the article during the burglary that aggravates the offence. However, the defendant must be aware of the article’s presence—unknowingly carrying another person’s weapon will not satisfy s.10.

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.

Worked Example 1.4

Two defendants enter a detached house at night. One carries a metal bar in a backpack but places it in a shed before entering the dwelling and, while inside, steals jewellery unarmed. The other offender is unarmed throughout. Is either liable for aggravated burglary?

Answer:
No on these facts. The offender with the metal bar did not have the article “with him” at the time of the ulterior offence under s.9(1)(b); the bar was not under his control or accessible when stealing. The other offender never had any aggravating article.

Worked Example 1.5

D enters a shop as a trespasser and attempts to steal. Unknown to D, a co-offender has placed a replica pistol in D’s bag before entry. Police later find the imitation firearm in D’s rucksack. Is D guilty of aggravated burglary?

Answer:
No, absent proof that D knew the imitation firearm was in the bag. Aggravated burglary under s.10 requires that D has the article with them and knows that they have it. Without knowledge, aggravated burglary is not made out (though basic burglary may be).

Worked Example 1.6

D and E agree a burglary. D will break in and steal; E will wait outside with a real firearm, ready to assist if needed. D enters, steals, and leaves unarmed. E never goes inside. Can either be convicted of aggravated burglary?

Answer:
D is not guilty of aggravated burglary because D did not have the firearm with him at the relevant time. E did not enter the building as a trespasser and so cannot be a principal in aggravated burglary. E could be liable as a secondary party only if the principal committed aggravated burglary and E intentionally assisted knowing the essential facts; here, the principal did not commit aggravated burglary.

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. There is no need for the defendant to intend to use the article during the burglary. If the defendant is unaware of the article’s presence (e.g., a weapon hidden by someone else), aggravated burglary is not made out. Where multiple offenders are involved, a participant who does not personally have the article can be liable as a secondary party only if they intentionally assist or encourage the burglary and know the essential matter that the principal has the article with them at the relevant time. If they neither have the article nor know of its presence, their liability is limited to basic burglary (assuming other elements are met).

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. Ordinary tools remain non-aggravating unless intended for causing injury or incapacitation.
• If the defendant uses force to steal, but not during a burglary, the offence may be robbery, not aggravated burglary. Robbery requires a completed theft and force or fear of force “then and there” used in order to steal; burglary requires trespass and the burglary elements.
• Possession offences (e.g. carrying an offensive weapon in a public place) and “going equipped” are distinct. Aggravated burglary focuses on having the article during the burglary; it does not require separate proof of carrying an offensive weapon under other statutes.
• Aggravated burglary is indictable only and tried in the Crown Court. Sentencing considers factors like dwelling burglary, presence of occupants, and the nature of the article.

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

Aggravated burglary turns on two tight questions once burglary is established: what the article is and when it is “with” the defendant. “Has with him” is about control and accessibility, not about using or displaying the article; “knowledge” ensures accidental carriage does not aggravate the offence.

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 (under their control and accessible) 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; no intent to use the article is required.
• Ordinary objects can become weapons of offence if intended for use to cause injury or incapacitate.
• Aggravated burglary is indictable only and carries a maximum penalty of life imprisonment; seriousness is assessed by context (e.g., dwellings and occupants).
• Distinguish aggravated burglary from robbery and other property/possession offences by identifying trespass, timing, and the nature of the article.

Key Terms and Concepts

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