Theft and property offences - Burglary (s.9 Theft Act 1968)

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Overview

Burglary, as defined in s.9 of the Theft Act 1968, involves unauthorized entry with criminal intent. For SQE1 FLK2 exam candidates, a clear understanding of burglary is vital. This article provides a complete analysis of the offence, exploring its statutory framework, key elements, landmark cases, and practical applications. By examining the actus reus and mens rea components, we aim to equip candidates with the knowledge needed for both exam success and professional practice.

Statutory Framework

Burglary is primarily addressed by two subsections of s.9 Theft Act 1968:

  1. s.9(1)(a): Entering a building or part of a building as a trespasser with intent to commit theft, inflict grievous bodily harm (GBH), or cause criminal damage.

  2. s.9(1)(b): Having entered a building as a trespasser, subsequently committing or attempting to commit theft or GBH.

The difference between these subsections lies in the timing of the required intent.

Defining 'Building'

The term 'building' encompasses more than conventional structures:

  • s.9(4): Includes inhabited vehicles or vessels.
  • Case law: In R v Coleman [2013] EWCA Crim 544, a narrowboat used as a dwelling was deemed a 'building'.
  • Exclusions: Temporary structures like tents are generally not covered.

Domestic vs. Non-Domestic Burglary

  • Domestic burglary: Involves entry into a dwelling, with a maximum sentence of 14 years.
  • Non-domestic burglary: Other buildings, with a maximum of 10 years.

Actus Reus of Burglary

The actus reus comprises two main elements: entry and trespass.

Entry

  • Partial entry: Full bodily intrusion isn't necessary (R v Brown (1985) 71 Cr App R 15).
  • Insertion of instruments: Can constitute entry if aimed at committing the intended crime.
  • Effective entry: Must be 'effective' for the planned offence (R v Collins [1973] QB 100).

Trespass

  • Definition: Entering without permission or lawful authority.
  • Knowledge or recklessness: The defendant must know they are trespassing or be reckless regarding permission.
  • Conditional permission: Explored in R v Jones and Smith [1976] 1 WLR 672.

Mens Rea of Burglary

The mens rea requirements differ between s.9(1)(a) and s.9(1)(b):

For s.9(1)(a)

  1. Intent or recklessness regarding trespass.
  2. Specific intent at the time of entry to commit theft, GBH, or criminal damage.

For s.9(1)(b)

  1. Intent or recklessness regarding trespass.
  2. Subsequent intent to commit theft or GBH, formed after entry but before exit.

Key Case Law

R v Collins [1973] QB 100

  • Principle: Trespass requires knowledge or recklessness about the lack of permission to enter.

R v Walkington [1979] 1 WLR 1169

  • Principle: Different parts of the same building can hold different statuses regarding trespass.

R v Ryan [1996] Crim LR 320

  • Principle: The timing of intent formation is key in differentiating between s.9(1)(a) and s.9(1)(b) offences.

Defences and Mitigating Factors

Certain factors may serve as defences or reduce culpability:

  1. Claim of Right: A genuine belief in the right to enter or take property may negate mens rea.
  2. Intoxication: Voluntary intoxication is generally not a defence but may be relevant to specific intent under s.9(1)(a).
  3. Duress: In exceptional cases, acting under duress may provide a defence.

Practical Applications

  1. Charging decisions: Prosecutors must carefully evaluate evidence regarding the timing of intent formation.
  2. Defence strategies: May focus on challenging evidence of entry, trespass, or intent.
  3. Sentencing considerations: Classification as domestic or non-domestic burglary significantly affects sentencing.
  4. Technological considerations: Questions arise about whether unauthorized access to digital spaces could constitute 'entry' for burglary purposes.

Example Scenario

Alex enters a high-security research facility using a stolen access card, initially out of curiosity. Upon seeing prototypes, Alex decides to steal them. This scenario highlights the difference between s.9(1)(a) and s.9(1)(b):

  • If Alex intended to steal before entry: s.9(1)(a)
  • If the intent formed only after entry: s.9(1)(b)

Conclusion

A strong understanding of burglary law under s.9 of the Theft Act 1968 is essential for SQE1 FLK2 exam success and legal practice. The offence's complexity lies in its elements of entry, trespass, and intent, as well as the timing of intent formation. Understanding these elements, supported by relevant case law, allows candidates to manage burglary cases effectively in both theoretical and practical settings.

Key points to remember:

  1. The distinction between s.9(1)(a) and s.9(1)(b) regarding intent timing.
  2. The broad interpretation of 'entry' and 'building' in burglary law.
  3. The importance of knowledge or recklessness in establishing trespass.
  4. The potential defences and mitigating factors in burglary cases.
  5. The implications of burglary law in charging decisions, defence strategies, and sentencing.

By understanding these concepts and their applications, candidates will be well-prepared for the SQE1 FLK2 exam and equipped to handle burglary cases in their future legal careers.