The two limbs of burglary
Burglary is defined disjunctively. Section 9(1)(a) criminalises entry as a trespasser with one of four specified intents: to steal, inflict grievous bodily harm, rape (now replaced by offences under the Sexual Offences Act 2003, though s.9(1)(a) continues to refer to rape), or do unlawful damage to the building or anything therein. Section 9(1)(b) criminalises the stealing or attempted stealing, or the infliction or attempted infliction of grievous bodily harm, by a person who has already entered as a trespasser. The distinction matters: for s.9(1)(a) the ulterior intent must exist at the moment of entry, whereas for s.9(1)(b) the relevant act or attempt must occur after entry. Crucially, s.9(1)(a) is an inchoate offence in substance—it punishes trespassory entry coupled with intent, irrespective of whether the intended crime is committed—while s.9(1)(b) requires proof that theft or violence actually occurred or was attempted.
Entry as a trespasser
Both limbs require that the defendant 'enters … as a trespasser'. 'Entry' is not exhaustively defined by statute. At common law, the insertion of any part of the body, however slight, sufficed. Early Theft Act authority suggested a similar approach: in Collins [1973] QB 100, Edmund Davies LJ stated that there must be 'an effective and substantial entry', though the facts (a man partially through a bedroom window, invited in by the occupant) left the precise threshold unclear. Later authority narrowed the requirement. In Brown [1985] Crim LR 611, the Court of Appeal held that the insertion of the top half of the defendant's body through a shop window constituted entry, even though his feet remained on the pavement outside. In Ryan [1996] Crim LR 320, the defendant became trapped in a window with only his head and right arm inside; the Court of Appeal held that this was sufficient entry, effectively abandoning any requirement that the entry be 'substantial'. The modern position is that any entry of the body, or arguably of an instrument used as an extension of the body, suffices, provided it is not de minimis.
Trespass requires absence of permission or authority to enter. A person enters as a trespasser if he knows or is subjectively reckless as to the fact that he is entering without permission: Collins, affirmed in Jones and Smith [1976] 1 WLR 672. The latter case established that a person may be a trespasser even if invited to enter for some purposes, if he enters with an intention that exceeds the scope of the permission. In Jones and Smith, the defendant entered his father's house (where he had general permission to enter) intending to steal a television set; the Court of Appeal held that his intention took him outside the permission and rendered him a trespasser. Similarly, in Laing [1995] Crim LR 395, the defendant, employed by a department store, entered parts of the store to which his access was restricted, intending to steal; his entry was held to be trespassory. The principle is that permission is construed in light of the purposes for which it is given, and an entry for an undisclosed and forbidden purpose is trespassory.
Building or part of a building
Section 9(1) applies only to entry into 'a building or part of a building'. 'Building' includes 'an inhabited vehicle or vessel', whether the person having a habitation in it is there or not (s.9(3)). Beyond that, the statute offers no definition. The courts have adopted a functional, common-sense approach. In Stevens v Gourley (1859) 7 CBNS 99, a structure was held to be a building if it had some degree of permanence and was of substantial construction. In B and S v Leathley [1979] Crim LR 314, a walk-in freezer container on site for two years, connected to electricity and resting on sleepers, was held to be a building. In Norfolk Constabulary v Seekings and Gould [1986] Crim LR 167, by contrast, a lorry trailer used for temporary storage was held not to be a building, despite having been in place for over a year; the decisive factor was its design for mobility and the lack of attachment to the land. The distinction can be fine and turns on degree.
'Part of a building' extends burglary to areas within a building to which access is restricted. The paradigm case is Walkington [1979] 1 WLR 1169: the defendant crossed a three-sided counter area in a shop, which was marked off for staff only; his entry into that part with intent to steal was held to constitute burglary. The Court of Appeal emphasised that 'part of a building' is to be construed generously to protect distinct areas within a building to which the defendant has no right of access. This principle underpins prosecutions for burglary committed by shoplifters who enter staff-only areas, or by visitors who stray into private sections of premises to which they have been admitted only for limited purposes.
Ulterior intent in s.9(1)(a)
Section 9(1)(a) requires proof that the defendant entered with intent to commit one of four offences: theft, grievous bodily harm, rape, or unlawful damage. The prosecution must prove the relevant intent at the point of entry. Conditional intent—intending to steal if something worth stealing is found—suffices: Attorney-General's References (Nos 1 and 2 of 1979) [1980] QB 180. This controversial ruling means that a defendant who enters a house intending to steal 'anything of value' commits burglary even if, upon entry, he finds nothing worth taking and leaves empty-handed. The Court of Appeal reasoned that a conditional intent is still an intent for the purposes of s.9(1)(a), provided the condition is not external to the actus reus of the ulterior offence. Critics argue that conditional intent dilutes the mental element and risks over-criminalisation.
The intent to inflict grievous bodily harm must be established by the same principles that govern the mens rea of s.18 of the Offences Against the Person Act 1861 (see Week 6). The reference to rape in s.9(1)(a) has not been updated to reflect the Sexual Offences Act 2003, which redefined and restructured the offence of rape; the courts construe the reference as applying to rape within the meaning of the 2003 Act. The intent to do unlawful damage covers damage to the building or anything therein; this must be damage that would constitute an offence under the Criminal Damage Act 1971, which entails that the defendant must intend damage without lawful excuse.
Theft or violence in s.9(1)(b)
Section 9(1)(b) requires that, having entered as a trespasser, the defendant steals or attempts to steal anything in the building, or inflicts or attempts to inflict grievous bodily harm on any person therein. The actus reus and mens rea of theft are as defined in ss.1–6 of the Theft Act 1968 (see Week 8). Attempted theft requires proof of an act more than merely preparatory to theft (s.1 of the Criminal Attempts Act 1981) and an intent to steal. Infliction of grievous bodily harm corresponds to the offence under s.20 of the Offences Against the Person Act 1861, though for burglary there is no requirement of a separate ulterior mens rea beyond intention or recklessness as to causing some harm: the s.9(1)(b) offence is made out if the defendant, having entered as a trespasser, inflicts or attempts to inflict grievous bodily harm with the mens rea for unlawful wounding or grievous bodily harm.
Criminal damage: actus reus
Section 1(1) of the Criminal Damage Act 1971 provides: 'A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence.' The actus reus comprises destruction or damage to property belonging to another. 'Damage' is given its ordinary meaning: physical harm that impairs the value, usefulness, or integrity of the property. In Morphitis v Salmon [1990] Crim LR 48, a scratch on a scaffolding bar was held too trivial to amount to damage. In Hardman v Chief Constable of Avon and Somerset [1986] Crim LR 330, water-soluble paints on a pavement were held to constitute damage because the local authority incurred expense in removing them. In Roe v Kingerlee [1986] Crim LR 735, smearing mud on a cell wall was damage. The test is whether the property has been harmed in a way that requires effort or expense to remedy, or that affects its utility or appearance to a material degree.
'Property' is defined in s.10(1) as 'property of a tangible nature, whether real or personal, including money'. Intangible property is excluded. 'Belonging to another' is defined in s.10(2) in terms mirroring s.5 of the Theft Act: property belongs to any person having custody, control, or a proprietary interest in it. A person can damage his own property if another has a proprietary or possessory interest in it (for example, damaging a car subject to a hire-purchase agreement).
Criminal damage: mens rea and recklessness
The defendant must intend to destroy or damage property belonging to another, or be reckless as to whether such property would be destroyed or damaged. Intention bears its ordinary meaning. Recklessness was initially interpreted by reference to Caldwell [1982] AC 341, which imported an objective test: a person was reckless if (a) he did an act that created an obvious risk of damage and (b) when doing the act he either had not given thought to the possibility of the risk or had recognised the risk but gone on to take it. Caldwell recklessness was widely criticised for convicting defendants who had considered the risk but concluded (perhaps reasonably) that it would not materialise, or who lacked the capacity to appreciate an obvious risk. In R v G [2003] UKHL 50, the House of Lords overruled Caldwell and restored a subjective test: a person is reckless if he is aware of a risk that property will be destroyed or damaged and it is, in the circumstances known to him, unreasonable to take that risk. This aligns criminal damage with the subjective recklessness applicable elsewhere in the criminal law (see Week 2).
Lawful excuse
Section 5 of the Criminal Damage Act 1971 provides two statutory defences of lawful excuse. Section 5(2)(a) applies where the defendant believed that the person entitled to consent to the damage had consented, or would have consented had he known of the circumstances. Section 5(2)(b) applies where the defendant damaged property in order to protect other property belonging to himself or another, and believed that the property was in immediate need of protection and that the means adopted were reasonable. Both defences turn on the defendant's genuine belief; there is no requirement that the belief be reasonable, though the reasonableness of the belief is evidential. In Jaggard v Dickinson [1981] QB 527, the defendant, drunk, broke into what she believed was her friend's house (she had permission to treat it as her own); she had in fact broken into the wrong house. The Divisional Court held that her drunken mistake as to consent could found a lawful excuse under s.5(2)(a). In Hunt (1977) 66 Cr App R 105, the defendant removed his elderly father from a residential home and damaged a door in the process, claiming he acted to protect his father; the Court of Appeal quashed his conviction, holding that s.5(2)(b) was not limited to protection of tangible property but extended to protection of persons.
Section 5(2)(b) has generated significant controversy. In Blake v DPP [1993] Crim LR 586, a vicar who daubed a biblical quotation on a pillar outside Parliament to protest the Gulf War claimed he was protecting property in the Gulf from damage; the Divisional Court held that the defence was not available because the property he sought to protect was not in 'immediate' need of protection and his act was not objectively capable of protecting it. The requirement of immediacy and objective capability limits the defence's scope and prevents it from becoming a general justification for politically motivated damage.