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Burglary – the basic offence

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.’

This definition arises, however, from the fact that the Public Order Act 1986 specifies that certain offences cannot be committed from within a dwelling. It is for that reason that the definition includes the words ‘… but does not include any part not so occupied …’.

The Court of Appeal in Le Vine v DPP [2010] EWHC 1128 (Admin) therefore held that because of these words of limitation the laundry room of a communal block of flats was not part of a dwelling for the purposes of section 8 of the Public Order Act 1986. It is submitted that this decision should not be applied to the provisions of section 9 of the Theft Act 1968, particularly as they contain no equivalent limitation.

Use of force

The offence of burglary may be committed where there is a trespass accompanied by the use of or an intention to use force.

Where a burglary involves theft and force is used immediately before or at the time of stealing (or attempting to steal) the defendant may have committed an offence of robbery. Prosecutors normally charge robbery, where robbery can be made out rather than burglary (or aggravated burglary).

  • Robbery is a straightforward concept easily understood by juries.
  • It can take place inside a private dwelling or commercial property as well as outside.
  • It clearly reflects the use or threat of force.
  • It is automatically an indictable only offence.
  • It provides the court with greater sentencing powers as the maximum sentence is life imprisonment and the Guideline sentencing range is wider.
  • It is a specified offence under Schedule 15 Criminal Justice Act 2003 (‘dangerous offenders’) for the purposes of sentencing.

Aggravated burglary

A person is guilty of aggravated burglary under section 10(1) of the Theft Act 1968 if he commits any burglary within section 9 and at the time has with him … any weapon of offence. For this purpose ‘weapon of offence’ means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use.

If a firearm or imitation firearm is carried, that fact can and should be reflected in specific counts under the Firearms Act 1968.

A simple burglary is inappropriate where a weapon is carried. However, it must be proved that the defendant was in possession of the relevant weapon of offence and at the relevant time.

In R v Michael O’Leary [1986] 82 Cr. App. R. 341 the defendant picked up a knife after entering the premises as a trespasser but before he confronted the householders and demanded their cash and jewellery.

The defendant was charged with aggravated burglary based on an offence of burglary under section 9(1)(b) of the Theft Act 1968. The burglary as charged was therefore not complete until he committed the theft, at which time he had the kitchen knife in his hand.

The Court of Appeal decided that the time at which the offence of burglary was completed was the time at which a defendant must be proved to have with him a weapon of offence. He was therefore guilty of aggravated burglary. It would have been different if the charge had been aggravated burglary based on burglary with intent to steal. The burglary would have been completed as soon as he entered with the intention to steal. If the defendant had subsequently picked up a knife it would not have been an aggravated burglary based on a charge under section 9(1)(a) of the Theft Act 1968.


Burglary is normally an either way offence.

Use of violence

By virtue of section 17(1) and Sch.1 paragraph 28 of the Magistrates’ Court Act 1980 burglary is triable only on indictment if it:

  • comprises the commission of, or an intention to commit, an offence triable only on indictment; or
  • is committed in a dwelling and any person in the dwelling is subjected to violence or the threat of violence.

‘Third strike’ domestic burglary

Sections 111(2) and (4) of the Powers of Criminal Courts (Sentencing) Act 2000 contain important provisions in respect of domestic burglaries. They provide that a third domestic burglary (the so-called ‘third strike burglary’) is triable only on indictment where:

  • a person is convicted of a domestic burglary committed after 30th November 1999;
  • at the time when that burglary was committed, he was 18 or over and had been convicted in England and Wales of two other domestic burglaries; and
  • one of those other burglaries was committed after he had been convicted of the other, and both of them were committed after 30 November 1999.

To identify a ‘third strike’ it is necessary to establish five dates, plus the age of the suspect on commission of the third burglary. The five dates must be different and follow each other in chronological order:

  • commission of the first offence of burglary – must be after 30 November 1999. (‘Strike one’)
  • conviction for the first burglary
  • commission of the second burglary – must be after the date of conviction of the first burglary. (‘Strike two’)
  • conviction for the second burglary
  • commission of the third burglary – must be after the date of conviction of the second burglary. (‘Strike three’)

The suspect must have been 18 or over at the date of commission of the third burglary, but not at the commission or conviction of the earlier burglaries.

The third or (subsequent) offence that triggers the provisions and also the previous convictions must be offences of burglary. R v Maguire [2003] 2 Cr. App. R. (S.) 10 CA makes it clear that an attempt does not trigger the provisions. A charge of attempted burglary is an offence under the Criminal Attempts Act 1981 not the Theft Act 1968. Furthermore, if the defendant was convicted of an attempt then by definition a burglary did not take place.

By similar reasoning other ‘inchoate’ convictions for conspiracy or incitement to burgle would not trigger the provisions. A conviction for conspiracy or incitement does not necessarily mean that the defendant took part in a burglary. The conviction for conspiracy or incitement relates to the participation in an agreement or encouragement of an offence not the commission of a substantive offence necessarily. If the defendant did participate it may be appropriate to include a count for the substantive offence on the indictment.


Statutory maximum

The maximum sentence for burglary of a building other than a dwelling is 10 years’ imprisonment on indictment. The maximum for burglary of a dwelling is 14 years. The maximum sentence for aggravated burglary is imprisonment for life.

Mandatory minimum

A conviction for a ‘third strike’ domestic burglary makes a defendant aged 18 or over liable to a minimum sentence of 3 years, in accordance with sections 111(1) and (2) of the Powers of Criminal Courts (Sentencing) Act 2000. The court must impose a sentence of at least 3 years in custody, unless

In R v Kenneth Coleman (2013)CA (Crim Div) , the court held it was appropriate to read the provisions in the Power of Criminal Courts (Sentencing) Act 2000 as to the minimum term for a third domestic burglary together with the very similar provisions in the Theft Act 1968 s.9 with the effect that section 111 applied to the wider definition of dwellings provided for in section 9(4) of the 1968 Act, which included narrow boats and caravans.

This article is based on public sector information licensed under the Open Government Licence v2.0. The original information can be found here; https://www.cps.gov.uk/legal-guidance/public-order-offences-incorporating-charging-standard

If you are concerned you may be facing charges for Burglary, or are already facing charges, it is essential you contact us as quickly as possible.

Adam Law Criminal Soilcitors 24hr emergency number 07976 850347