Robbery and Burglary

Notes: Burglarynotesburglarynotes.doc  Robberynotesrobberynotes.doc

 

Burglary

Burglary is a well-known crime, although many people do not recognise the range of activities that can amount to burglary; it is not just entering a house and stealing something.

Watch this video about an audacious burglary:

 

Key Facts

 

1.Must be trespass, which is unlawfully entering someone else's land/property

2.Max sentence for a dwelling is 14yrs

3.All other burglary is max 10yrs

4.Triable Either offence

 

The law on burglary is divided into two parts: s9(1)(a) of the Theft Act 1968 is concerned with going into a building as a trespasser with intent to commit one or more of a number of specified offences; s9(1)(b) of the Theft Act 1968 is concerned with committing one of a specified range of offences after an entry has been made to a building as a trespasser.

 

The definition of burglary in s9(1) of the Theft Act 1968

 

The Theft Act 1968 defines the offence of burglary as follows:

1          A person is guilty of burglary if:

a          he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

b having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

 

2 The offences referred to in subsection (1) (a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

 

 

There are, therefore two distinct offences, the first under s9(1)(a) and the other under s9(1)(b).

 

 

 

 

 

Burglary under s9(1)(a)

 

The offence has a number of elements that need to be considered:

 

The actus reus has three elements:

1 enters

2 a building or part of a building

3 as a trespasser.

 

The mens rea has two elements:

1 knowledge or recklessness as to his entering as a trespasser

2 with intent to commit theft, grievous bodily harm or damage to the building or its contents.

 

Burglary under s9(1)(b)

 

The actus reus has four elements:

1 enters

2 a building or part of a building

3 as a trespasser

4 actus reus of theft or grievous bodily harm, or attempt theft/grievous bodily harm therein.

 

The mens rea has two elements:

1 knowledge or recklessness as to his entry as a trespasser

2 mens rea for theft or grievous bodily harm or attempt theft/grievous bodily harm therein.

 

The basic distinction between the two offences is that the first offence entry with an ulterior intent – to steal, cause grievous bodily harm or cause damage; the second offence is the commission of theft or grievous bodily harm (or an attempt to do so) once entry as a trespasser has taken place.

 

There are, therefore, a number of common elements to burglary; theft: enters; building or part thereof; as a trespasser; knowledge or recklessness as to his entering as a trespasser.

 

The first common element – enters

 

Entry is done when what is called ‘effective’ entry has taken place. This is a question of fact and depends on whether enough of the defendant is in the building to achieve the ulterior intent (s9(1)(a)) or commit the crime or attempt crime (s9(1)(b)). Three cases illustrate this point.

 

The first case is Collins (1973), where the defendant, having discovered that a woman was lying asleep and naked on her bed, stripped off his clothes (apart from his socks) and climbed up a ladder on to the window sill of the bedroom and leaned in. At this moment the woman awoke and, mistakenly believing that the naked form at the window was her boyfriend, beckoned the defendant in. The defendant then got into her bed and it was only after the defendant had intercourse with her that the woman realised her error. The defendant’s conviction for burglary (entering as a trespasser with intent to commit rape (this was an ulterior offence for burglary until the Sexual Offences Act 2003), contrary to s9(1) (a)). One question the court had to decide was whether there was entry as he lent in the window before being beckoned to come in. The court decided that he had made an effective entry.

 

 

 

 

 

The second case is Brown (1985). In that case, the defendant was seen partially inside a shop window. The top half of his body was inside the shop window, as though he were rummaging inside it. The witness assumed that his feet were on the ground outside, although his view was obscured. The defendant was convicted of burglary as he had effective entry – he could handle the goods inside the shop window.

 

The third case is that of Ryan (1996). Here the victim, an elderly householder, found the defendant stuck in a downstairs window of his house in the early hours of the morning. The defendant’s head and right arm were inside the window which had fallen on his neck and trapped him. The rest of his body was outside the window. He was convicted of burglary because there was effective entry for his intention to steal, even though he could not actually reach anything. There is no requirement of a successful theft, etc. to have taken place for there to be a conviction under s9(1)(a).

 

One final point to note is that it is probably the case that standing with a fishing rod through a letter box or using some other remote device to steal will amount to burglary as the device is likely to be considered as an extension of the defendant’s body.

 

The second common element – building or part thereof

 

There is no formal definition of a building, but it must be a fairly permanent structure. This would appear to exclude a tent, so theft from a tent at a music festival remains theft and not burglary.

 

The Theft Act 1968, s9(3) expands a little on this:

 

3. References in subsections (1) and (2) above to a building shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as times when he is.

 

 

This effectively means that burglary only applies to fixed structures or substantial portable structures that are designed for living in. It seems that a motor caravan would be capable of being burgled whilst being used to live in, but not when simply used as a vehicle or parked up over winter. It remains to be seen whether a sleeper cab of a lorry is classified as a caravan and whether theft from an attached trailer would be burglary.

 

For the purposes of burglary it is only necessary to enter part of a building as a trespasser. This is because a person often has permission to enter parts of a building but not others – this can be seen with signs in shops stating ‘staff only’.

 

In Stevens v Gourley 1859, a civil case, it was suggested that a ‘Structure of considerable size and intended to be permanent or at least endure for considerable time. (last a long time)

 

In B and S v Leatherly 1979 there appeared to be an extension to the definition when a locked freezer on sleepers was held to be a building.

 

However, Norfolk Constabulary v Seekings and Gould 1986 the courts were not prepared to accept that lorry trailers would be classed as a property or building. This stopped the widening of the definition.

 

In the case of Walkington (1979), the defendant went into Debenhams department store in Oxford Street, London, during opening hours. He moved around the shop and then went into a three- sided partition that surrounded a till on the middle of the shop floor. He stood inside the partitioned area and opened the till drawer to see if it contained any money for him to steal. The defendant was convicted under s9(1)(a) of entering part of a building as a trespasser with intent to steal as he entered the sectioned-off part as a trespasser as it was impliedly a staff-only area.

 

The third common element – as a trespasser

 

Trespass can be defined as occurring when a person intentionally or recklessly enters a building in the possession of another without permission or a legal right to do so.

 

As has been seen in Walkington (1979), entry to a part of a building that is clearly not one to which the defendant has express or implied permission to enter is trespass. This entry must be voluntary, not forced or purely accidental. Thus, in Collins (1973), he could not be guilty of burglary if he was outside the building when the offence took place, that is, before the permission to enter was given. It is a different matter whether the permission was given by mistake in that case.

 

Permission is given either expressly (‘go into my garage and get my tools’) or impliedly from the circumstances. A pupil at a school has implied permission to enter the common areas of the school, designated classrooms at designated times and other areas with permission. A sign on a staff room door ‘Knock and wait’ suggests no general permission to enter the staff room. A pupil who has been suspended from school has his permission to enter also suspended, so entry on the school premises would be entry as a trespasser.

 

A person who is given permission to enter for one purpose but in fact enters for another purpose is entering as a trespasser. A person who has a key to my house to come in and feed the cats enters as a trespasser if that person uses the key to gain entry to steal my computer.

 

This can be seen from the case of Jones and Smith (1976) where the defendants took two television sets from Smith’s father’s house without his knowledge or consent. In the early hours of 10 May 1975, a police officer saw a car with the two appellants inside and a television set protruding from the boot of the car, and another officer saw Jones sitting on the back seat with a second television set behind him. In the front of the car was Smith. The defendants were convicted of burglary contrary to s9(1)(b) Theft Act 1968, despite evidence given by the father that his son ‘would never be a trespasser in my house’.

 

In Barker v R 1983 (Australian case) D was asked to look after neighbours property but D stole from the house. D G as he entered in excess of his permission. D must not go beyond the permission granted by the V or this will make D trespasser.

 

The underlying principle is that if a person enters a building with intent to steal, cause grievous bodily harm or criminal damage, he does so as a trespasser except in the unlikely event of the occupier giving him permission to do so.

 

“ When you invite a person into your house to use your staircase, you do not invite them to slide down your banister .” (Hillen v ICI 1936)

 

 

The fourth common element – knowledge or recklessness as to his entering as a trespasser

 

We have already seen that trespass is defined as occurring when a person intentionally or recklessly enters a building in the possession of another without permission or a legal right to do so. This entry must be voluntary, not forced or purely accidental. For this purpose, the recklessness is Cunningham (1957) – subjective recklessness that is where the defendant knows there is a risk, is willing to take it and takes it deliberately.

 

 

 

The different elements of s9(1)(a) and (b) of the Theft Act 1968

 

The first difference between the two sections is that for the offence under s9(1)(a) the defendant does not have to have committed that offence, only that he had the mens rea of intention to commit either theft, grievous bodily harm or damage to the building or its contents. The essential feature is that the defendant formed the intention before he entered the building as a trespasser. This intent can be a conditional intent, for example to steal jewellery if there is some jewellery inside the building.

 

Section 6(1) Theft Act Intention to Permanently Deprive where D is assessing whether or not to steal

 

Where D’s going on “fishing expeditions” and only steal where anything is worth stealing as long as the P can prove the D intended to steal something this is sufficient to prove an ITPD, as per the case of AG Ref (No1 & 2 1979) 1980. This case overruled the case of Easom.

 

In Easom 1972, a policewoman waited in a cinema with an open hand bag. The D looked inside the handbag but took nothing. Under the AG ref (no 1 &2 1979) this would be classed as a conditional intention to permanently deprive even though the D stole nothing. In otherwords as long as the P could prove all other elements of Theft then the D would be guilty. This concept is particularly important for burglaries.

 

For the offence under s9(1)(b) to be committed, the defendant must commit or attempt to commit theft or grievous bodily harm. Thus the offence requires the full actus reus and mens rea of those offences to be committed. So far as grievous bodily harm is concerned, this can be either s18 or s20 of the Offences Against the Person Act 1861, and, presumably, would by implication include murder if that were to occur. This means that the mens rea of s20 (maliciously) can suffice. As Lord Diplock stated in Mowatt (1968), it is enough that the defendant foresaw that some physical harm to some person, albeit of a minor character, might result.

 

Robbery

 

 

Robbery can be seen very simply as theft with force. The traditional view of the bank robber with a mask over his face waving a sawn-off shotgun around is everyone’s idea of robbery. But, can it be robbery if two people, holding their Oyster cards (the London travel pass), run into each other at a tube station and pick up each other’s card after they have been dropped in the collision; one card has little credit on it, the other has a substantial credit balance? What circumstances might change the accident to a robbery?

 

Key facts about Robbery

 

1.Indictable only offence

2.Max sentence is life imprisonment

3.Robbery is simply force used in order to steal

4.Force or threat of force must be used immediately before or at time of theft.

5.Force doesnt have to be used nor does V need to be frightened

6.Force can be used on any person

 

The definition of robbery

 

The offence of robbery is defined in the Theft Act 1968, s8(1) as:

 

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

 

Robbery is, therefore, an aggravated form of theft. The actus reus is:

 

1. the actus reus of theft

2. use of force or putting or seeking to put any person in fear of subjection to force in order to steal immediately before or at the time of stealing.

The mens rea is:

 

1.the mens rea of theft

2.intent or recklessness as to the use or threat of force.

 

Therefore, all the limitations to the offence of theft, such as the limits on what can be stolen, are equally applicable. There are a number of points to be considered apart from the elements of theft:

 

1.Does Robbery need a completed theft?

2.What amounts to force on a person?

3. What amounts to a threat of force on a person?

4. When does the force or threat of force have to take place?

5.What connection must there be between the force and the theft?

 

It is essential that the offence of theft has been committed before there can be a conviction for robbery.

 

Is a completed theft needed for a Robbery?

 

There must be a completed theft for a Robbery to have been committed. If any element of theft cannot be proved then there can be no Robbery.

 

In the case of Robinson (1977), D ran a clothing club and was owed £7 by the V’s wife. D approached the V and threatened him. During a struggle the man dropped a £5 note and D took it still claiming he was still owed £2.

 

D’s conviction for Robbery was quashed because D should have been allowed to tell the jury about his genuine and honest belief that he had a right in law to the money, under S2(1)(a) of the Theft Act 1968.

 

What amounts to force or threat of force on a person?

 

The word ‘force’ is not defined in the Act. However, the force, or threat of force must be sufficient to be noticeable, but not necessarily to the victim. Thus, waving a knife at someone who is blind would probably be sufficient. What would not be sufficient would be the threat of future violence, as that would not fulfil the definition of ‘fear of being then and there subjected to force’. Such activity may be the basis of a charge of blackmail.

 

There is no need to use any technical meaning to the term ‘force’; indeed in the case of Dawson and James (1976), the Court of Appeal specifically stated that the word was an ordinary word, and the jury could decide if what had occurred amounted to force. This could be jostling, as in that case where the defendants stood around the victim, one of them nudged the victim. This made the victim to lose his balance so that his wallet could be easily taken.

 

It appears that it does not matter whether the victim is actually put in fear or not: it is the defendant’s intention that matters. The fact that the victim was not afraid does not mean that the defendant did not attempt to put him in fear. This is sufficient for the offence as can be seen from the case of B and R v DPP (2007). In that case, five boys stopped the victim and asked if he had a mobile phone or some money. The victim said he did not, and was then asked which school he attended. He said where he went to school and he was then asked for his mobile phone and money. Whilst that was happening about five or six more males ran to join the group. The eleven or twelve boys all surrounded the victim and when he did not hand over his telephone and money, his drink was taken and a packet of crisps was snatched from his hands. A number of the boys went into his pockets and took his wallet from his inside pocket, his watch from an outside pocket and his travel card. A £5 note was removed from the wallet; the wallet was then thrown to the ground. The victim said he did not feel ‘particularly threatened’ or ‘scared’ and he was not physically assaulted. He said he was ‘a bit shocked’. The boys were convicted of robbery. It also appears that there does not have to be direct force on the victim.

 

The word force is all that is required, so the jury can decide if it was sufficient. In Clouden (1987), the defendant was seen to follow a woman who was carrying a shopping basket in her left hand. He approached her from behind and wrenched the basket down and out of her grasp with both hands and ran off with it. This was sufficient force for a conviction for robbery. It is also the case that the threat does not have to be as the victim imagines if it is intended to cause fear. In the case of Bentham (2005) the defendant positioned his fingers, concealed within his jacket, in such a way as to give the appearance of a gun which he pointed at the victim. This amounted to force for the purposes of robbery, although not of possessing an imitation firearm.

 

Summary of what is regarded as force:

 

1.Hit in back

2.Tugged - Corcoran

3.Push - Dawson

4.Wrench/snatch - Clouden

5.Threatening gesture or words as long D proved to be seeking to put V in fear

6.Force used in order to steal

7.Force used at anytime the theft is continuing - Lockely

 

Summary of what is NOT regarded as force:

 

1.Pull

2.Snatch - but see Clouden

3.Taking

4.Force not used to steal

5.Force used after the theft is regarded as complete – Lockley

 

When does the force or threat of force have to take place?

 

The importance of this question is that the definition requires the force or threat of force to take place immediately before or at the time of stealing. This deliberately makes the time when the force is used fairly fluid within the overall time that the crime took place. This has been made clearer by the case of Hale (1978), where burglars entered a house and took a jewellery box. They then tied up the occupant before leaving. The court decided that appropriation (and therefore theft) was still continuing when the occupant was tied up. The court took the view that the appropriation and therefore the stealing was a continuing act and the jury could decide when the theft was complete. In Hale (1978), Eveleigh LJ said:

 

‘In the present case there can be little doubt that if the appellant had been interrupted after the seizure of the jewellery box the jury would have been entitled to find that the appellant and his accomplice were assuming the rights of an owner at the time when the jewellery box was seized. However, the act of appropriation does not suddenly cease. It is a continuous act and it is a matter for the jury to decide whether or not the act of appropriation has finished. Moreover, it is quite clear that the intention to deprive the owner permanently, which accompanied the assumption of the owner’s rights was a continuing one at all material times. This court therefore rejects the contention that the theft had ceased by the time the lady was tied up. As a matter of common sense the appellant was in the course of committing the theft; he was stealing.

 

In some cases the actual stealing and appropriation may be very brief. In Corcoran and Anderton (1980) the robbery was committed at the point of appropriation even though the robber failed. The court decided that a robbery was committed where the victim’s handbag was wrestled from her grasp, even though it then fell to the ground and the robber ran off without it. At the other end of the scale, a line must be drawn even though continuing possession of the goods stolen would appear to make it a continuing act. Eveleigh LJ’s common sense approach can be used to come to a conclusion on this matter. In Hale (1978) the appropriation would probably end when the robbers left the house and were in the street outside. This is consistent with the theft case of Atakpu (1994), where the defendant hired expensive cars abroad to sell in England. The defendant successfully argued that no appropriation had taken place in England and therefore the case was not triable in England. The theft was complete long before the cars were brought into England.

 

 

What connection must there be between the force and the theft?

 

The force or threat of force must be used in order to steal. If the force or threat of force is used for a different purpose (such as rape), then it is not robbery. Where the force is used to allow the theft to happen, for example to obtain the keys to a building or safe, then it can be robbery. This can be seen from the case of Hale (1978), where tying up the victim allowed the successful completion of the theft.

 

In Lockley, 1995 the D was caught shop lifting cans of beer. He used force on the shopkeeper which tried to stop him from escaping. D appealed on the basis that the theft was complete. However as the force was used to complete the theft it was interpreted to be included as “force used at the time of the theft”, to effect escape.

 

Unlike Theft (Atakpu) the courts have interpreted AR and MR of Robbery to be a continuing act until the actual theft is completed.

 

 

Make a free website with emyspot.com - Report abuse