Burglary (OCR A-Level Law): Revision Notes

Burglary

Definition

Burglary is a criminal offence defined under section 9 of the Theft Act 1968. The Act creates two distinct forms of burglary, each with different requirements and timing of intent.

Section 9(1)(a) burglary

This offence occurs when a person enters a building or part of a building as a trespasser with intent to commit one of three ulterior offences:

• Theft
• Grievous bodily harm (GBH)
• Criminal damage

The critical feature of s 9(1)(a) is that the defendant must have formed the necessary intent at the time of entry. Importantly, there is no requirement to prove that the defendant actually committed the ulterior offence – the intent alone at the point of entry is sufficient for liability.

Section 9(1)(b) burglary

This offence is committed when a person, having entered a building or part of a building as a trespasser, then commits or attempts to commit one of two ulterior offences:

• Theft or attempted theft
• Inflicting or attempting to inflict GBH

The key distinction here is that the intent to commit the ulterior offence can arise after the entry has been made. The defendant must actually commit or attempt to commit one of these two offences, unlike s 9(1)(a) where intent alone suffices.

Actus reus of burglary

The physical elements of burglary consist of three components, each of which must be established for the offence to be complete.

Entry

The concept of 'entry' is not defined in the Theft Act 1968 but has been developed through case law. The key principle established by the courts is that complete entry is not required – a partial entry is sufficient to satisfy this element.

The legal test for entry has evolved through several important cases. In R v Collins (1972), the Court of Appeal held that entry had to be both 'effective and substantial'. However, this test was later relaxed in R v Brown (1985), where the defendant leaned through an open window while still standing outside. The Court of Appeal ruled that entry simply had to be 'effective', removing the requirement for it to be substantial.

The case of R v Ryan (1996) demonstrates the practical application of this principle. The defendant became trapped with only his head and arm inside a window at 2.30 a.m. Despite his entry clearly not being 'effective' (he was stuck), the Court of Appeal held there was sufficient evidence for a jury to conclude that he had entered.

A building or part of a building

The Theft Act 1968 does not provide a comprehensive definition of 'building', though section 9(4) clarifies that the term includes an inhabited vehicle or vessel, regardless of whether the occupant is present at the time of the burglary.

The courts have grappled with defining what constitutes a 'building' in borderline cases. In B v Leathley (1979), a large 25-foot freezer container was positioned on railway sleepers in a farmyard. It had its own lock and electricity supply. The court held that this container had acquired the characteristics of a building, despite its origins as a container.

However, not all adapted structures qualify as buildings. In Norfolk Constabulary v Seekings and Gould (1986), a lorry trailer used for storage had steps and its own electricity supply, but the court ruled it remained a vehicle rather than becoming a building because it still had wheels attached. This demonstrates that the degree of permanence and attachment to the ground are relevant factors.

The phrase 'part of a building' recognises that a person may have permission to be in one area of a building but not another. R v Walkington (1979) illustrates this principle. The defendant opened a till located within a three-sided counter area on the shop floor of a department store. While he may have had general permission to enter the shop, he clearly entered the counter area as a trespasser with intent to steal. This shows that different parts of the same building can have different access permissions.

Trespasser

A trespasser is defined under civil law as a person who enters property without permission. For burglary, the defendant must be a trespasser at the point of entry, or they must exceed any permission they have been given.

The mens rea requirement for this element is that the defendant must either know they are trespassing or be subjectively reckless as to whether they are trespassing. This was established in R v Jones and Smith (1976), where two defendants took television sets from the house of one defendant's father. Although the father had given his son general permission to enter the house, the Court of Appeal upheld their burglary convictions. The court reasoned that both defendants had exceeded their permission (or 'licence') to enter by going into the house with the intent to steal. This demonstrates that even family members or invited guests can become trespassers if they abuse their permission to be in a building.

Mens rea of burglary

The mental element required for burglary differs depending on which form of the offence is charged, though both share a common requirement regarding knowledge of trespassing.

Mens rea for s 9(1)(a)

For this offence, the defendant must have intended to commit one of the three ulterior offences at the time of entry. These ulterior offences are:

• Theft
• Grievous bodily harm
• Criminal damage

Crucially, conditional intent is sufficient to satisfy this requirement. This principle was established in Attorney-General's Reference Nos 1 and 2 of 1979 (1979), where two separate burglars were convicted despite arguing they had not intended to steal any specific item. The court ruled that defendants satisfy the mens rea if they enter a building intending to steal anything they can find that is worth taking, rather than having a particular item in mind. This prevents defendants from escaping liability by claiming they were merely 'looking' or had not decided what to take.

Mens rea for s 9(1)(b)

For this form of burglary, the defendant must have the mens rea for theft or GBH at the time when they commit or attempt to commit the actus reus of either of these two offences. This means:

• For theft, they must have the intention to permanently deprive the owner of property (and the other elements of dishonesty under the Theft Act)
• For GBH, they must intend to cause serious harm or be reckless as to causing such harm

The key difference from s 9(1)(a) is that the intent does not need to exist at the moment of entry – it must exist when the defendant actually commits or attempts the ulterior offence.

Mens rea common to both sections

For both s 9(1)(a) and s 9(1)(b), the defendant must either know they are trespassing or be subjectively reckless as to whether they are trespassing. This means the defendant must either be aware they do not have permission to be in the building (or part of it), or they must have recognised the risk that they might be trespassing and gone ahead anyway. Objective recklessness is not sufficient – the prosecution must prove the defendant's actual state of mind.

Applying burglary in problem questions

When answering scenario-based questions on burglary, use the ILAC structure:

Common mistakes to avoid

Because section 9 of the Theft Act 1968 contains a lengthy definition with multiple elements, students often omit parts of the definition or apply them incorrectly in scenario questions.

What you must learn

Summary of key cases

Case	Element	Legal principle established
R v Collins (1972)	Entry	Entry must be 'effective and substantial' (later modified by Brown)
R v Brown (1985)	Entry	Entry simply needs to be 'effective' – partial entry through a window while standing outside is sufficient
R v Ryan (1996)	Entry	Even if entry is not 'effective', there can be sufficient evidence for a jury to find the defendant entered (defendant stuck with head and arm in window)
B v Leathley (1979)	Building	A 25-foot freezer container with its own lock and electricity supply, resting on railway sleepers, was held to be a building
Norfolk Constabulary v Seekings and Gould (1986)	Building	A lorry trailer used for storage with steps and electricity did not become a building because it retained its character as a vehicle with wheels attached
R v Walkington (1979)	Part of a building	A defendant may have permission to enter a shop but becomes a trespasser when entering a counter area with intent to steal
R v Jones and Smith (1976)	Trespasser	Defendants can be trespassers even if they have general permission to enter, if they exceed that permission (son and friend taking TVs from father's house)
A-G Ref. Nos 1 and 2 of 1979	Conditional intent	Defendants satisfy mens rea if they enter intending to steal anything worth taking, not necessarily a specific item