Learning Outcomes
This article outlines the key elements of burglary under s.9 of the Theft Act 1968. After reading this article, you should be able to distinguish between the two types of burglary under s.9(1)(a) and s.9(1)(b), identify the actus reus and mens rea elements required for each, and understand how these principles apply in practice. This knowledge will assist you in analysing scenarios and answering single best answer questions relevant to the SQE1 assessment.
SQE1 Syllabus
For SQE1, you need a detailed understanding of the offence of burglary as defined by the Theft Act 1968. Your revision should focus on the practical application of the legal rules to factual scenarios.
Pay particular attention to:
- The definition and elements of burglary under s.9(1)(a) Theft Act 1968.
- The definition and elements of burglary under s.9(1)(b) Theft Act 1968.
- Distinguishing between s.9(1)(a) and s.9(1)(b) based on the timing of intent and the commission of ulterior offences.
- The specific elements required for actus reus (entry, building/part of a building, trespasser).
- The specific elements required for mens rea (knowledge or recklessness as to trespass, intention for ulterior offences).
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which subsection of s.9 Theft Act 1968 applies if the defendant forms the intent to steal after entering a building as a trespasser?
- s.9(1)(a)
- s.9(1)(b)
- s.9(2)
- s.9(4)
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True or false? For a burglary under s.9(1)(a) Theft Act 1968, the defendant must actually steal something from the building.
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What level of physical entry is required to satisfy the ‘entry’ element of burglary?
- Complete entry of the whole body.
- Substantial entry of the body.
- Effective entry, which is a question of fact.
- Entry with the intent to commit an offence, regardless of physical extent.
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Which of the following ulterior offences is relevant to s.9(1)(a) burglary but NOT s.9(1)(b) burglary?
- Theft
- Inflicting Grievous Bodily Harm (GBH)
- Attempting to inflict GBH
- Criminal Damage
Introduction
Burglary is a statutory offence defined in s.9 of the Theft Act 1968 (TA 1968). It concerns unlawfully entering property with the intention to commit certain offences, or committing (or attempting) certain offences after having unlawfully entered. For SQE1, you must be able to differentiate between the two forms of burglary under s.9(1)(a) and s.9(1)(b) and apply the specific elements of actus reus and mens rea to given scenarios. Burglary is triable either way, but domestic burglary carries a higher maximum sentence than non-domestic burglary, reflecting its greater seriousness.
The Two Types of Burglary under s.9 TA 1968
Section 9 TA 1968 creates two distinct ways in which burglary can be committed. It is essential to distinguish between them as they have different requirements regarding the defendant's intent and actions after entry.
Burglary under s.9(1)(a)
A person is guilty of burglary under s.9(1)(a) TA 1968 if they enter any building or part of a building as a trespasser with intent to commit any of the following offences (known as ulterior offences):
- Stealing anything in the building or part of the building.
- Inflicting grievous bodily harm (GBH) on any person therein.
- Doing unlawful damage to the building or anything therein.
The key feature of s.9(1)(a) burglary is that the intent to commit one of these ulterior offences must exist at the moment of entry. It does not matter whether the defendant actually goes on to commit the intended offence; the burglary is complete upon entry with the requisite intent.
Burglary under s.9(1)(b)
A person is guilty of burglary under s.9(1)(b) TA 1968 if, having entered any building or part of a building as a trespasser, they steal or attempt to steal anything in the building or part of the building, or inflict or attempt to inflict grievous bodily harm (GBH) on any person therein.
The essential difference here is that the defendant does not need to have the intent to commit theft or GBH at the time of entry. The offence is committed when, having already entered as a trespasser, the defendant then commits or attempts to commit theft or GBH. Note that criminal damage is not included as an ulterior offence for s.9(1)(b).
Worked Example 1.1
Liam enters an unlocked shed at night, intending only to find somewhere dry to sleep. Once inside, he sees some expensive gardening tools and decides to take them.
Which subsection of s.9 TA 1968 might apply to Liam's actions?
Answer: Section 9(1)(b) might apply. Liam entered as a trespasser (assuming he had no permission to sleep in the shed) but did not have the intent to steal at the time of entry. He formed the intent and committed the theft after entering. Therefore, s.9(1)(a) does not apply, but s.9(1)(b) does, provided the other elements (entry, trespasser status, mens rea for theft) are satisfied.
Actus Reus Elements of Burglary
Both forms of burglary under s.9 share common actus reus elements: (1) entry, (2) into a building or part of a building, (3) as a trespasser.
Entry
The defendant must 'enter' the building or part of the building. The TA 1968 does not define 'entry'. Case law establishes that entry does not require the defendant's whole body to be inside.
Key Term: Entry For burglary, entry requires some part of the defendant's body, or an instrument used by the defendant, to physically cross the threshold into the building or relevant part. The entry must be 'effective', meaning capable of allowing the commission of the ulterior offence, although this is interpreted broadly.
In R v Brown [1985], leaning in through a broken shop window was held to constitute entry. In R v Ryan [1996], the defendant became stuck trying to enter a window, with only his head and arm inside. The court held this was still capable of being an 'effective' entry, even if he was physically unable to commit the intended theft. The question of whether entry is effective is ultimately one of fact for the jury or magistrates.
Building or Part of a Building
The entry must be into a 'building' or 'part of a building'.
Key Term: Building Includes structures intended to be permanent or endure for a considerable time. Section 9(4) TA 1968 explicitly includes inhabited vehicles or vessels (e.g., caravans, houseboats) within the definition, whether or not a person is actually residing there at the time.
Temporary structures like tents are unlikely to qualify. Sheds and outhouses generally count as buildings.
Key Term: Part of a Building Refers to an area within a building where the defendant does not have permission to be, even if they have permission to be in other parts of the building (e.g., behind a shop counter, staff-only areas).
In R v Walkington [1979], entry behind a department store counter area was held to be entry into 'part of a building'.
Trespasser
The defendant must enter as a trespasser. This means entering without the consent or legal right of the person in possession or control of the premises.
Key Term: Trespasser A person who enters premises without permission, or who has permission to enter for a lawful purpose but enters for an unlawful purpose, or who exceeds the terms of their permission.
Consent obtained by fraud or deception is not valid consent, so entry in such circumstances constitutes trespass. Importantly, in R v Jones and Smith [1976], it was held that a person with general permission to enter premises (e.g., a son entering his father's house) can still be a trespasser if they enter with the intention of committing an ulterior offence like theft, as this exceeds the scope of the permission granted.
Mens Rea Elements of Burglary
Both forms of burglary require the defendant to know they are trespassing, or be reckless as to whether they are trespassing, at the time of entry.
Key Term: Recklessness (as to Trespass) Subjective recklessness applies (R v G [2003]). The defendant must be aware of a risk that they might be trespassing and unreasonably go on to take that risk.
An honest but mistaken belief in having permission to enter negates the mens rea for trespass, even if the belief is unreasonable (R v Collins [1973]). However, the more unreasonable the belief, the less likely it is that magistrates or a jury will find it was genuinely held.
Beyond the mens rea for trespass, the two forms of burglary differ:
Mens Rea for s.9(1)(a)
The defendant must, at the time of entry, intend to commit one of the specified ulterior offences (theft, GBH, or criminal damage). The intent can be conditional, e.g., intending to steal if there is anything worth stealing (Attorney-General's References (Nos 1 and 2 of 1979)).
Mens Rea for s.9(1)(b)
The defendant must have the mens rea for the ulterior offence (theft or GBH, or the attempted versions of these) at the time they commit or attempt to commit it inside the building. They do not need this intent upon entry.
Worked Example 1.2
Sarah uses a key she found to enter her neighbour's house while they are away, intending to look around. She knows she does not have permission. Once inside, she sees a valuable painting and decides to steal it. She picks it up but is disturbed by a returning neighbour and drops it, fleeing empty-handed.
Analyse Sarah's potential liability for burglary.
Answer: Sarah entered the building as a trespasser, knowing she lacked permission.
s.9(1)(a): Did she intend to steal, cause GBH or criminal damage at the time of entry? No, her initial intent was just to look around. Therefore, s.9(1)(a) burglary is not committed.
s.9(1)(b): Having entered as a trespasser, did she steal or attempt to steal, or inflict or attempt to inflict GBH? She formed the intent to steal the painting after entry and took steps towards it (picking it up). This constitutes attempted theft. Therefore, Sarah has committed the actus reus and mens rea for attempted theft after entering as a trespasser. She is likely guilty of burglary under s.9(1)(b).
Revision Tip
When analysing a burglary scenario, always check the timing. Did the intent for the ulterior offence exist at the point of entry (s.9(1)(a)) or was the offence (or attempt) committed after entry (s.9(1)(b))? Remember the different lists of ulterior offences for each subsection.
Key Point Checklist
This article has covered the following key knowledge points:
- Burglary under s.9 TA 1968 involves entering a building or part of a building as a trespasser.
- Section 9(1)(a) requires intent to commit theft, GBH, or criminal damage at the time of entry. The ulterior offence need not actually be committed.
- Section 9(1)(b) requires the commission or attempted commission of theft or GBH after having entered as a trespasser. Criminal damage is not relevant here.
- 'Entry' must be effective but need not be substantial; part of the body or an instrument can suffice.
- A 'building' includes inhabited vehicles/vessels. 'Part of a building' refers to areas where permission is restricted.
- A 'trespasser' enters without permission or exceeds the scope of any permission granted.
- The mens rea requires knowledge or subjective recklessness as to being a trespasser at the point of entry.
- Section 9(1)(a) requires ulterior intent at entry; s.9(1)(b) requires the mens rea for the relevant ulterior offence at the time it is committed/attempted.
Key Terms and Concepts
- Entry
- Building
- Part of a Building
- Trespasser
- Recklessness (as to Trespass)
