Burglary

Section 9 of the 1968 Act creates two offences that both require proof that the defendant entered any building or part of building as a trespasser. There must also be an additional element concerning the intention or the actions of the defendant whilst in the building or part of.

Section 9(1)(a) requires proof that the entry took place with the intention of:

  • stealing;
  • inflicting GBH; or
  • committing unlawful damage.

Section 9(1)(b) requires proof that after the entry took place the defendant:

  • stole or attempted to steal anything; or
  • inflicted grievous bodily harm upon a person, or attempted to do so.

Domestic or dwelling burglary

Importance of specific pleading

The definitions of burglary offences in section 9 of the Theft Act 1968 do not distinguish directly between the burglary of a dwelling or a non-dwelling. There are, however, important differences in respect of venue and sentencing.

Statutory provisions

The Theft Act 1968 uses the term ‘dwelling’. Section 9(3) of the Theft Act 1968 provides for different statutory maximum sentences for burglary depending on whether the building is a dwelling or not.

Definition of dwelling

There is no statutory definition of a dwelling within the Theft Act 1968 and no entirely definitive case law.

The judgment in R v Saw and Others [2009] EWCA Crim 1 contains comments about the aggravating factors arising from the special nature of a building which people use as a home, but provides no specific definition of a dwelling.

Some cases have dealt with the issue of buildings which are living accommodation temporarily unoccupied or not permanently occupied, such as a hotel room.

Courts appear, however, to have taken a broad view of the definition of ‘dwelling’ in respect of offences of burglary. Structures such as sheds and garages within the boundaries of a property and even mobile caravans have all been considered to fall within the definition of ‘dwelling’. The courts were encouraged by the Lord Chief Justice in the case of Saw and others to sentence accordingly in such cases.

The question of what constituted a dwelling under section 9 of the Theft Act 1968 was specifically considered by the Court of Appeal in the case of R v Rodmell (24 November 1994 – unreported). This was a case that involved the burglary of a garden shed, and the theft of power tools. The shed stood in three and a quarter acres of grounds of a house, and some 60 yards from the house.

The Court of Appeal cited with approval the following sentencing remarks:

‘A garden shed is part of a person’s home. Burglars should be under no illusion that burglary of outbuildings is just as much burglary of domestic premises as breaking into the front door, although it can be said to be not quite as serious as breaking onto the place where people live.’

The definition of ‘dwelling’ in section 8 of the Public Order Act 1986, for example, is:

‘any structure or part of a structure occupied as a person’s home or as other living accommodation (whether the occupation is separate or shared with others), but does not include any part not so occupied, and for this purpose ‘structure’ includes a tent, caravan, vehicle, vessel to other temporary or movable structure.’