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he offence of burglary is set out in s.9 of the Theft Act 1968. There are two offences of burglary created under s.9. Burglary under s.9(1)(a) and burglary under s.(9)(1)(b). In many instances the same conduct could amount to an offence under both sections but not always. There is also an offence of aggravated burglary under s.10 of the Theft Act 1968. The maximum sentence for burglary is 14 years imprisonment in the case of dwellings and 10 years all other buildings. Aggravated burglary carries a maximum penalty of life imprisonment.

Burglary under S.9(1)(a)

A person commits burglary under s.9(1)(a) if he enters a building, or any part of a building, as a trespasser, with intent to either:

steal anything in the building, inflict GBH on any person in the building

or doing unlawful damage (There used to be a further offence in this list of rape but this was repealed under the Sexual Offences Act 2003.)

This section is thus concerned with entry with intent. For burglary under s.9(1)(a) there is no need to prove that the ulterior offence was actually committed. As the following case illustrates:

R v Collins [1973] 3 WLR 243 Case summary

Burglary under s.9(1)(b)

A person commits an offence of burglary under s.9(1)(b) if, having entered as a trespasser, he steals, attempts to steal anything in the building or inflict or attempts to inflict GBH on any person therein.

The main difference of the two offences of burglary is that under (a) the intent must be formed at the time of entry whereas under (b) the intent to commit the ulterior offence can come later. Also (a) covers unlawful damage whereas (b) does not.

Actus reus of burglary

The elements which make up the actus reus of the offence burglary are common to both subsections. These are:

Entry As a trespasser A building or part of a building


Initially it was held that to amount to an entry the defendant had to make a substantial and effective entry:

R v Collins [1973] 3 WLR 243 Case summary

However, later cases suggest that this is no longer required:

R v Brown [1985] Crim LR 212 Case summary

R v Ryan [1996] Crim LR 320 Case summary

Building or part of a building

There is no statutory definition of building although s.9(4) states that inhabited vehicles and vessels are included even if not inhabited at the time of the offence. This provision was considered in the following two cases:

B & S v Leathley [1979] Crim LR 314 Case summary

Norfolk Constabulary v Seekings & Gould [1986] Crim LR 167 Case summary

Entering part of a building was considered in:

R v Walkington [1979] 1WLR 1169 Case summary

As a trespasser

This covers those who may have permission to be in the property but exceed the permission by doing something which they were not invited to do.

R v Jones & Smith [1976]1 WLR 672 Case summary

Mens rea of burglary

The defendant must know they are a trespasser or be reckless as to whether they are trespassing:

R v Collins [1973] 3 WLR 243 Case summary

The S.9(1)(a) offence requires intention to commit one of the ulterior offences. For the s.9(1)(b) offence the requisite mens rea of the ulterior offence must be present.

Aggravated burglary S.10 Theft Act 1978

Under s.10 a person will be guilty of aggravated burglary if he commits any burglary and at the time of the burglary has with him any firearm or imitation firearm, any weapon of offence or any explosive.

“firearm” includes an airgun or air pistol.

“imitation firearm” means anything which has the appearance of being a firearm, whether capable of being discharged or not.

“weapon of offence” means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.

“explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

The relevant time for possessing the weapon depends on whether it is a 9(1)(a) offence or a 9(1)(b) offence. If (a) then possession must be at time of entry. If (b) possession must be at the time the ulterior offence is committed.

R v O'Leary (1986) 82 Cr App R 341 Case summary

There is no need to establish the defendant intended to use the weapon in the burglary:

R v Stones [1989] 1WLR 156 Case summary

burglary.txt · Last modified: 2017/04/22 13:28 by phil