H418/01 - Burglary

Two routes with different timing

Section 9 of the Theft Act 1968 creates two routes. Both concern entering a building or part of a building as a trespasser, with knowledge or recklessness as to trespassing. Their additional requirements differ.

Criminal damage is an intended offence for route (a), but damage actually committed after entry is not by itself route (b). Likewise, intent alone after entry is not the completed act route (b). These differences follow from the statutory alternatives; do not copy the longer list into both routes.

The building need not be a home, the entry need not occur at night, and breaking a lock is unnecessary. An office, shop or relevant part of one can qualify. A single episode may satisfy both routes if the person enters with the relevant intent and then commits the specified offence. They are alternative analyses of the same legal category, not a requirement to choose one without explaining the other.

The older version of section 9 also listed rape as an intended offence. That wording was removed in 2004; sexual trespass offences are governed separately. Do not treat an old case about that former route as proof that rape remains in the present section 9 list. This is a practical connection between precedent and statutory amendment: a case can remain important for entry or fault after its original statutory offence route changes.

Entry into a building or part

The prosecution must prove an actual entry. The statute does not say that the defendant's whole body must be inside. R v Collins (1972) used the phrase “effective and substantial” entry in a dispute about a window sill and an apparent invitation. Later cases prevent that phrase from becoming a rigid whole-body requirement. R v Brown (1985) treated upper-body entry through a shop window as sufficient; R v Ryan (1996) treated partial entry as capable of sufficing even though the intruder became trapped. Whether entry is proved remains a factual question. Merely standing outside with an intention to enter is not a completed section 9 offence.

A building is ordinarily a structure with a sufficient degree of permanence, rather than every object providing temporary shelter. Apply the ordinary meaning in its physical context. Section 9(4) expressly includes an inhabited vehicle or vessel, even when its inhabitant is temporarily absent. A lived-in houseboat may qualify; an ordinary uninhabited car does not become a section 9 building merely because somebody intends to steal from it. An unusually temporary structure requires reasoned analysis rather than an automatic label.

The words “part of a building” matter when a person may enter the public area but not a restricted area. R v Walkington (1979) involved a customer going behind a shop counter and looking into an empty till. The counter area could be a separate part of the building; its emptiness did not remove the defendant's conditional intention to steal. A wall or closed room is not invariably necessary: the layout and limits of permission can distinguish an area.

Original example: customers may enter a café's dining area, but a marked staff-only kitchen is restricted. A customer who deliberately crosses into the kitchen may enter a part as a trespasser even though entry through the front door was lawful. Permission for the public area cannot simply be carried over to every part. Conversely, walking around the area customers are allowed to use is not trespass merely because the person later considers wrongdoing.

Trespass and awareness of permission

Entering as a trespasser means entering without permission or beyond its scope. For criminal burglary, the defendant must know this or be reckless as to it. The prosecution must prove more than a civil trespass or the mere intention to cross the threshold. A genuine belief in permission can matter even where the person was actually mistaken.

In Collins, the intruder claimed that the occupier appeared to invite him in. The Court of Appeal quashed the conviction because the jury had not properly been asked whether he entered knowing he lacked permission or reckless as to permission. The important proposition is fault as to trespass. The case does not make every apparent invitation valid, excuse an intruder who knows it is not meant for them, or preserve the now-repealed burglary-with-intent-to-rape route.

R v Jones and Smith (1976) illustrates exceeding permission: a person with general permission to enter a family home can nevertheless enter as a trespasser when knowingly going beyond that permission by entering to steal. An invitation is not necessarily unlimited. The factual scope of permission and the defendant's awareness must still be examined. Mere later wrongdoing does not automatically make every earlier lawful entry trespassory from the start.