Learning Outcomes
This article outlines the key elements of burglary under s.9 of the Theft Act 1968. It explains the two distinct routes to liability under s.9(1)(a) and s.9(1)(b) and how to analyse timing of intent versus commission or attempt of ulterior offences. It also sets out the shared actus reus (entry, building or part of a building, trespasser) and the mens rea (knowledge or recklessness as to trespass) for both versions, and the additional intent requirements specific to each subsection. The discussion develops the practical treatment of “entry” (including partial bodily entry and entry using tools), “part of a building” (including restricted areas and time-limited permissions), and “trespasser” (including exceeding permission and entry via deception). It further situates burglary within procedure and sentencing at a high level (either-way offence and when it escalates), and highlights how attempts interact with s.9(1)(b).
SQE1 Syllabus
For SQE1, you are required to understand the offence of burglary as defined by the Theft Act 1968 and apply the legal rules to factual scenarios, with a focus on the following syllabus points:
- The definition and elements of burglary under s.9(1)(a) Theft Act 1968.
- The definition and elements of burglary under s.9(1)(b) Theft Act 1968.
- Distinguishing between s.9(1)(a) and s.9(1)(b) based on the timing of intent and the commission of ulterior offences.
- The specific elements required for actus reus (entry, building/part of a building, trespasser).
- The specific elements required for mens rea (knowledge or recklessness as to trespass, intention for ulterior offences).
- Conditional intent at entry and its sufficiency for s.9(1)(a).
- “Part of a building” where permission is geographically or temporally restricted (e.g. “staff only”, closing hours).
- Buildings and inhabited vehicles/vessels (s.9(4)).
- The scope of ulterior offences: theft/GBH/criminal damage for s.9(1)(a) versus theft/GBH (including attempts) for s.9(1)(b).
- The relationship between s.9(1)(b) burglary and the law of attempts (more than merely preparatory acts).
- High-level procedural classification: burglary is triable either way; when it can become indictable only (e.g. dwelling burglary with violence or an indictable-only ulterior offence).
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.
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Which subsection of s.9 Theft Act 1968 applies if the defendant forms the intent to steal after entering a building as a trespasser?
- s.9(1)(a)
- s.9(1)(b)
- s.9(2)
- s.9(4)
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True or false? For a burglary under s.9(1)(a) Theft Act 1968, the defendant must actually steal something from the building.
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What level of physical entry is required to satisfy the ‘entry’ element of burglary?
- Complete entry of the whole body.
- Substantial entry of the body.
- Effective entry, which is a question of fact.
- Entry with the intent to commit an offence, regardless of physical extent.
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Which of the following ulterior offences is relevant to s.9(1)(a) burglary but NOT s.9(1)(b) burglary?
- Theft
- Inflicting Grievous Bodily Harm (GBH)
- Attempting to inflict GBH
- Criminal Damage
Introduction
Burglary is a statutory offence defined in s.9 of the Theft Act 1968 (TA 1968). It concerns unlawfully entering property with the intention to commit certain offences, or committing (or attempting) certain offences after having unlawfully entered. For SQE1, you must be able to differentiate between the two forms of burglary under s.9(1)(a) and s.9(1)(b) and apply the specific elements of actus reus and mens rea to given scenarios. Burglary is triable either way, but domestic burglary carries a higher maximum sentence than non-domestic burglary, reflecting its greater seriousness.
At a procedural level, burglary is generally an either-way offence. However, in particular situations it may be treated as indictable only, for example where the offence intended or committed within the building is itself indictable only, or where a burglary of a dwelling involves violence or the threat of violence. These allocation rules matter practically because they affect venue and trial procedure, but they do not alter the elements of the offence.
Aggravated burglary is a separate offence under s.10 where, at the time of committing the burglary, the defendant has with them a firearm, imitation firearm, weapon of offence, or explosive. Although aggravated burglary is not examined here in detail, it often arises on similar facts, so it is important to be clear about s.9 first.
The Two Types of Burglary under s.9 TA 1968
Section 9 TA 1968 creates two distinct ways in which burglary can be committed. It is essential to distinguish between them as they have different requirements regarding the defendant's intent and actions after entry.
Burglary under s.9(1)(a)
A person is guilty of burglary under s.9(1)(a) TA 1968 if they enter any building or part of a building as a trespasser with intent to commit any of the following offences (known as ulterior offences):
- Stealing anything in the building or part of the building.
- Inflicting grievous bodily harm (GBH) on any person therein.
- Doing unlawful damage to the building or anything therein.
The key feature of s.9(1)(a) burglary is that the intent to commit one of these ulterior offences must exist at the moment of entry. It does not matter whether the defendant actually goes on to commit the intended offence; the burglary is complete upon entry with the requisite intent.
Key Term: Conditional Intent
An intent to commit an ulterior offence that is formulated on a condition (e.g., intending to steal only if there is anything worth stealing) is sufficient for s.9(1)(a).
Burglary under s.9(1)(b)
A person is guilty of burglary under s.9(1)(b) TA 1968 if, having entered any building or part of a building as a trespasser, they steal or attempt to steal anything in the building or part of the building, or inflict or attempt to inflict grievous bodily harm (GBH) on any person therein.
The essential difference here is that the defendant does not need to have the intent to commit theft or GBH at the time of entry. The offence is committed when, having already entered as a trespasser, the defendant then commits or attempts to commit theft or GBH. Note that criminal damage is not included as an ulterior offence for s.9(1)(b).
For s.9(1)(b), if the prosecution alleges an attempt inside the building, the Criminal Attempts Act 1981 principles apply (the act must be more than merely preparatory; the mens rea is intention to commit the full offence, save for limited exceptions).
Worked Example 1.1
Liam enters an unlocked shed at night, intending only to find somewhere dry to sleep. Once inside, he sees some expensive gardening tools and decides to take them.
Which subsection of s.9 TA 1968 might apply to Liam's actions?
Answer:
Section 9(1)(b) might apply. Liam entered as a trespasser (assuming he had no permission to sleep in the shed) but did not have the intent to steal at the time of entry. He formed the intent and committed the theft after entering. Therefore, s.9(1)(a) does not apply, but s.9(1)(b) does, provided the other elements (entry, trespasser status, mens rea for theft) are satisfied.
Actus Reus Elements of Burglary
Both forms of burglary under s.9 share common actus reus elements: (1) entry, (2) into a building or part of a building, (3) as a trespasser.
Entry
The defendant must 'enter' the building or part of the building. The TA 1968 does not define 'entry'. Case law establishes that entry does not require the defendant's whole body to be inside.
Key Term: Entry
For burglary, entry requires some part of the defendant's body, or an instrument used by the defendant, to physically cross the threshold into the building or relevant part. The entry must be 'effective', meaning capable of enabling the commission of the offence, although this is interpreted broadly and is a question of fact.
In R v Brown [1985], leaning in through a broken shop window was held to constitute entry. In R v Ryan [1996], the defendant became stuck trying to enter a window, with only his head and arm inside. The court held this was still capable of being an 'effective' entry, even if he was physically unable to commit the intended theft. The question of whether entry is effective is ultimately one of fact for the jury or magistrates.
The courts have also accepted that entry may be effected with an instrument used by the defendant to carry out the ulterior offence (for example, inserting a tool used to remove goods). Where the only insertion is of an instrument and not any part of the body, whether this constitutes “entry” is again a question of fact that turns on whether the instrument is used as the means of committing the ulterior offence within the premises.
Realistically, focus on whether:
- some physical intrusion across the threshold has occurred; and
- that intrusion is associated with the offending act (e.g., reaching in to take property, or using a tool to manipulate items inside).
Building or Part of a Building
The entry must be into a 'building' or 'part of a building'.
Key Term: Building
Includes structures intended to be permanent or to endure for a considerable time. Section 9(4) TA 1968 explicitly includes inhabited vehicles or vessels (e.g., caravans, houseboats) within the definition, whether or not a person is actually residing there at the time.
Temporary structures like tents are unlikely to qualify, although sheds, outhouses and modular buildings typically do. Lorry containers can be buildings where they are settled and used with a degree of permanence; they may not be buildings if still functionally mobile.
Key Term: Part of a Building
Refers to an area within a building where the defendant does not have permission to be, even if they have permission to be in other parts of the building (e.g., behind a shop counter, staff-only areas, private back offices, upstairs in a private dwelling when only the hallway was open to a social guest).
In R v Walkington [1979], entry behind a department store counter area was held to be entry into 'part of a building'.
“Part” can be defined by signage (“Staff only”), physical barriers, or a clear demarcation between public and private areas. It can also be defined temporally: a front-of-house area open at 11 a.m. may be closed at 11 p.m.; entering at that time can be entry into a restricted part.
Trespasser
The defendant must enter as a trespasser. This means entering without the consent or legal right of the person in possession or control of the premises.
Key Term: Trespasser
A person who enters premises without permission, or who has permission to enter for a lawful purpose but enters for an unlawful purpose, or who exceeds the terms of their permission (by area, time, or purpose). Entry obtained by fraud or deception is not valid consent.
In R v Jones and Smith [1976], it was held that a person with general permission to enter (e.g., a son entering his father's house) can still be a trespasser if they enter with the intention of committing an ulterior offence like theft, as this exceeds the scope of the permission granted. In R v Collins [1973], the court held that an honest belief in consent can negate trespass; however, this belief must relate to permission to enter the premises.
Trespass can arise where:
- consent has been withdrawn and the person remains or moves to another part;
- the person goes beyond spatial limits (e.g., into a back office);
- the person goes beyond time limits (e.g., remaining after closing);
- the person’s purpose at entry is outside the scope (e.g., entering as a “customer” when the purpose was to steal).
Mens Rea Elements of Burglary
Both forms of burglary require the defendant to know they are trespassing, or be reckless as to whether they are trespassing, at the time of entry.
Key Term: Recklessness (as to Trespass)
Subjective recklessness applies. The defendant must be aware of a risk that they are trespassing and unreasonably go on to take that risk.
An honest but mistaken belief in having permission to enter negates the mens rea for trespass, even if the belief is unreasonable (R v Collins). However, the more unreasonable the belief, the less likely it is that magistrates or a jury will find it was genuinely held.
Beyond the mens rea for trespass, the two forms of burglary differ:
Mens Rea for s.9(1)(a)
The defendant must, at the time of entry, intend to commit one of the specified ulterior offences (theft, GBH, or criminal damage). The intent may be conditional.
Key Term: Conditional Intent
Intending to commit one of the ulterior offences depending on the circumstances found (e.g., intending to steal if there is anything worth stealing) is sufficient for s.9(1)(a).
When theft is the intended ulterior offence, the intent to steal must include the core elements of theft’s mens rea: dishonesty and intention to permanently deprive. This does not mean the prosecution must prove a completed theft, but they must show a contemporaneous intention that amounts to an intention to commit theft.
When GBH is the intended offence, an intent to cause grievous bodily harm (serious harm) at the time of entry suffices. For criminal damage, an intent to damage property (without lawful excuse) at entry suffices.
Mens Rea for s.9(1)(b)
The defendant must have the mens rea for the ulterior offence (theft or GBH, or the attempted versions of these) at the time they commit or attempt to commit it inside the building. They do not need this intent upon entry.
For a theft under s.9(1)(b), the dishonest intention to permanently deprive must coincide with appropriation inside the building. For a GBH under s.9(1)(b), the mental element corresponds to the relevant OAPA offence (for example, intention or recklessness as to some harm for s.20, or intent to cause serious harm for s.18). Where the allegation is an attempt, the Criminal Attempts Act 1981 requires intention to commit the full offence (subject to recognised exceptions in attempts law).
Worked Example 1.2
Sarah uses a key she found to enter her neighbour's house while they are away, intending to look around. She knows she does not have permission. Once inside, she sees a valuable painting and decides to steal it. She picks it up but is disturbed by a returning neighbour and drops it, fleeing empty-handed.
Analyse Sarah's potential liability for burglary.
Answer:
Sarah entered the building as a trespasser, knowing she lacked permission.
s.9(1)(a): Did she intend to steal, cause GBH or criminal damage at the time of entry? No, her initial intent was just to look around. Therefore, s.9(1)(a) burglary is not committed.
s.9(1)(b): Having entered as a trespasser, did she steal or attempt to steal, or inflict or attempt to inflict GBH? She formed the intent to steal the painting after entry and took steps towards it (picking it up). This constitutes attempted theft. Therefore, Sarah has committed the actus reus and mens rea for attempted theft after entering as a trespasser. She is likely guilty of burglary under s.9(1)(b).
Worked Example 1.3
Amir enters a convenience store lawfully during business hours. Noticing a “Staff Only” door ajar, he slips behind the counter, opens the till, and removes cash.
Is this burglary? If so, under which subsection?
Answer:
Amir entered the shop lawfully, but when he entered the “Staff Only” area he entered “part of a building” as a trespasser. This is a new “entry” for s.9 purposes. At that point, if he had already decided to steal, s.9(1)(a) could be made out upon entry with intent to steal. If he only decided to steal once behind the counter and then did so, he would be liable under s.9(1)(b) because, having entered as a trespasser, he then stole. On these facts, because he removed the cash after entering the restricted area, s.9(1)(b) is clearly satisfied; s.9(1)(a) would require proof he intended to steal at the moment he stepped behind the counter.
Worked Example 1.4
Priya uses a hooked pole through a residential letterbox to lift a set of car keys from a hall table.
Does this satisfy the “entry” element for burglary?
Answer:
The courts have treated “entry” flexibly and focus on whether there is an effective intrusion into the building space. While many cases focus on bodily entry, entry may also be effected by an instrument used to commit the ulterior offence. Inserting the hooked pole into the house to remove keys is capable of constituting entry; whether it is “effective entry” is a question of fact. If Priya was a trespasser vis-à-vis the premises and formed the intent to steal the keys at the time of the instrument’s entry, s.9(1)(a) could be made out; if she used the instrument and removed the keys after trespassory entry by the instrument, s.9(1)(b) could also be engaged provided the other elements are present.
Worked Example 1.5
Jules is invited to a party at 7 p.m. and remains inside the host’s flat after midnight when the host has gone to bed. After everyone has left, Jules searches the bedroom and pockets jewellery.
Does the timing of permission affect liability for burglary?
Answer:
Jules had permission to be in the flat during the party but the permission was time-limited. Remaining and moving into private areas after permission effectively ended can render Jules a trespasser as to “part of the building” at the time of the search. If the intent to steal existed when moving into the private bedroom as a trespasser, s.9(1)(a) may be satisfied. If the intent arose only after trespass into the bedroom and the appropriation then occurred there, s.9(1)(b) is made out.
Worked Example 1.6
Noah forces entry into a warehouse intending to spray graffiti on the owner’s office door. He is arrested before causing any damage.
Is Noah guilty of burglary?
Answer:
If at the time of entry Noah intended to cause unlawful damage to the building or anything therein, the elements of s.9(1)(a) are satisfied on entry even if no damage is ultimately caused. Criminal damage is an ulterior offence for s.9(1)(a) but not for s.9(1)(b).
Revision Tip
When analysing a burglary scenario, always check the timing. Did the intent for the ulterior offence exist at the point of entry (s.9(1)(a)) or was the offence (or attempt) committed after entry (s.9(1)(b))? Remember the different lists of ulterior offences for each subsection.
Additional Practical Points and Applications
While the doctrinal elements above are essential, the following practical applications frequently determine outcomes on problem facts:
- “Effective entry” is broad. Partial bodily entry, leaning in, or becoming stuck can suffice. Entry with an instrument used to steal can also be effective; the closer the instrument’s role is to the offending inside, the easier it is to characterise as entry.
- “Part of a building” is often established by signs, barriers or social convention. “Staff Only”, “Private”, a counter area, or a back office are typical examples. Time can define “part”: entering public space after closing can be entering a restricted part.
- Trespass may arise through:
- deception (fake customer), if the deception vitiates consent to enter;
- exceeding the terms of permission (area, time or purpose);
- permission withdrawn (after a request to leave) where the person then enters another part.
- An honest mistake as to permission (e.g., believing a householder has invited entry) is a defence to the trespass element if genuinely held, even if unreasonable, but will be scrutinised closely on the facts.
- Conditional intent suffices for s.9(1)(a). “I’ll steal if there is anything worth stealing” is enough.
- For s.9(1)(b), proof often centres on showing a completed theft or an attempt inside. For an attempt, the prosecution must show acts “more than merely preparatory” (e.g., opening a till and reaching toward the cash drawer, or picking up a painting to remove it).
- Ulterior GBH under s.9(1)(b) often aligns with s.20 (inflicting grievous bodily harm) or s.18 (wounding or causing GBH with intent). The specific mens rea for the chosen OAPA offence must be satisfied at the time of the conduct in the building (or attempted within it).
Contextual Notes on Buildings and Dwellings
Section 9(4) includes inhabited vehicles or vessels as buildings. A campervan used as a holiday home can be a “building” at the time it is being used to live in, and a houseboat can be a building even when no one is physically present. By contrast, a tent is usually too temporary to be a “building”. Sheds and outbuildings are generally covered. These distinctions matter, particularly as burglary of a dwelling attracts greater sentencing seriousness.
From a procedural standpoint, burglary is triable either way. It may be treated as indictable only in defined circumstances (e.g., where the offence intended or committed inside is indictable only; or a dwelling burglary involves violence or threat of violence). This does not alter the substantive elements but affects venue and potential sentencing powers.
Linking Burglary with Related Offences
Burglary is distinct from robbery (theft with force or fear of force immediately before or at the time of stealing and in order to steal) and aggravated burglary (burglary with specified weapons). On overlapping facts (for example, entering as a trespasser and then using force to steal), the appropriate charge must be selected with care. Where no force is used, robbery is not available; if a weapon is present at the relevant time (point of entry for s.9(1)(a), point of theft/GBH for s.9(1)(b)), aggravated burglary may be considered.
Key Point Checklist
This article has covered the following key knowledge points:
- Burglary under s.9 TA 1968 involves entering a building or part of a building as a trespasser.
- Section 9(1)(a) requires intent to commit theft, GBH, or criminal damage at the time of entry. The ulterior offence need not actually be committed; conditional intent is sufficient.
- Section 9(1)(b) requires the commission or attempted commission of theft or GBH after having entered as a trespasser. Criminal damage is not relevant here.
- 'Entry' must be effective but need not be substantial; part of the body or an instrument used to commit the offence can suffice. Whether entry is effective is a question of fact.
- A 'building' includes structures of permanence and, by s.9(4), inhabited vehicles or vessels; tents are generally excluded. Sheds and similar outbuildings typically qualify.
- 'Part of a building' covers restricted areas within otherwise accessible premises (e.g., behind counters, staff rooms, upstairs in private space).
- A 'trespasser' enters without permission or exceeds the scope of any permission (by area, time, or purpose); deception can vitiate consent. An honest belief in permission, if genuinely held, negates the trespass mens rea.
- The mens rea requires knowledge or subjective recklessness as to being a trespasser at the point of entry.
- Section 9(1)(a) requires ulterior intent at entry; s.9(1)(b) requires the mens rea for the relevant ulterior offence at the time it is committed/attempted.
- For s.9(1)(b), attempts inside the building must be more than merely preparatory. The attempt mens rea must align with the completed offence’s requirements.
- Burglary is generally either-way; certain aggravated circumstances (e.g., dwelling burglary with violence, or where an indictable-only offence is involved) can render it indictable only. This affects venue but not the elements.
Key Terms and Concepts
- Entry
- Building
- Part of a Building
- Trespasser
- Recklessness (as to Trespass)
- Conditional Intent