Burglary

Burglary – also called breaking and entering – is a crime related to theft or another crime. It typically involves breaking into a house, outbuilding (such as a shed, stable, or garage), business, school, place of worship, boat, aircraft, rail car, or motor vehicle with an intent to commit a crime. To carry out a burglary is to burgle (British English, a word coined by J.R.R. Tolkien in his 1937 novel The Hobbit as a back-formation of the word burglar, which was then adopted in popular speech) or burglarize (American English). For a summary of the history of this offence, see burglary (history).

It excludes lawful break-ins of property, such as those necessary for rescue of persons or animals, extinguish a fire, lawful searches and seizures by police, confiscation of visible contraband, effecting a lawful arrest, or eviction of a tenant who has failed to meet obligations. It also presumes that the break-in is contrary to the desire of the property owner; a locksmith who picks or destroys a lock to allow entry of the rightful owner or tenant is not a burglar. Furthermore, someone who takes shelter in such a life-threatening situation (a storm or a fire) in property not ordinarily his right to enter is not a burglar.

More precisely, at common law, burglary was the entering of the dwelling house of another in the night time to commit theft. This definition has been greatly expanded in most jurisdictions, so that it no longer need be in the night time and the intent to commit any felony can suffice.

United States

In most jurisdictions in the United States, burglary is a felony and involves trespassing, entering a building or automobile, or remaining unlawfully with intent to commit any felony, not necessarily a theft -- for example, vandalism. Thus, a conviction for burglary may qualify as a conviction under a three strikes law or habitual criminal statute. Even if nothing is stolen in a burglary, the act is a statutory offense. Some burglars have rape as an objective, so the crime of burglary is not exclusively a property crime. Burglary may be an essential element in such a crime as arson, kidnapping, identity theft, or violation of civil rights; indeed the "plumbers" of the Watergate scandal were technically burglars. As with all legal definitions in the U.S., the foregoing description may not be applicable in every jurisdiction since there are 51 separate criminal codes in force.

The acts of burglary and any theft that occurs coincident with such entry are treated as separate offenses. If the perpetrator's intended act after entering the burglarized premises was not a felony, the result can be two different misdemeanor charges rather than a felony count. The theft itself might be charged as "(grand or petit) larceny from a building".

The state of Massachusetts formally uses the term "breaking and entering" as well as "burglary".[1]

Many other U.S. states treat burglary as a more serious crime when it occurs at night; California formerly prosecuted night-time burglary as "burglary in the first degree" and daytime burglary as "burglary in the second degree", under most circumstances (this state now uses building type — residential vs. commercial/auto — in making the determination, with residential burglaries carrying the more serious charge). In states that continue to punish night-time burglary more severely than daytime burglary and the crime occurred during twilight, a standard of 30 minutes after sunset or before sunrise will often be observed as the boundary between night and day.

England and Wales

In England and Wales, burglary is dealt with in s9 Theft Act 1968 which provides:

(1)(a) any person who enters as a trespasser, any building or part of a building, inhabited vehicle or vessel with the intent to steal, inflict grievous bodily harm or commit criminal damage will be guilty of the offence of burglary.

(1)(b) where any person, having entered any building, part of a building, inhabited vehicle or vessel as a trespasser, commits or attempts to commit a theft or inflicts or attempts to inflict grievous bodily harm.

s9(1)(a) previously included entering with intent to commit rape, but this is now charged as trespass with intent to commit a sexual offence under s63 Sexual Offences Act 2003.

Elements of the offence

Entry as a trespasser

Trespass means that any presence, even partial, on the premises is without the consent of the owner. This requires that the defendant knows the entry to be unlawful. To avoid a conviction, the defendant must prove either that he or she had the owner's consent to be on the premises for the particular purposes, or that the owner would have consented had he or she been aware of all the material circumstances. Thus, if the defendant enters the common part of a shop, there is a licence to be on the premises for the purposes of buying any of the goods on display. But if the defendant goes into a part of the shop which is obviously not intended for common use, or remains within the establishment after closing time without the implicit consent of the store owner or management to commit one of the embedded offences, the test will be whether the defendant honestly believed that the shopkeeper would have consented had he or she been asked. Entering the storeroom and removing inventory, breaking into a display to obtain merchandise within a store fixture might constitute burglary as opposed to the lesser offense of theft. Additionally, in R v Smith and Jones (1976), the Court of Appeal ruled that a trespass could occur if a visitor went beyond the permission granted to him. For example, one who entered a shop intending to steal from it could be held to have entered as a trespasser because by entering intending to steal, they exceeded the licence granted to customers, to enter in order to inspect and purchase goods.

Breaking a store window with a device and then using a device to retrieve merchandise on display and then using another device (such as a shovel or rake) to retrieve the property to be removed would likely constitute a burglary even if no part of the anatomy of the thief passed beyond the window.

Mens rea

Although there may be clear evidence of an intention to steal if the defendant is carrying housebreaking equipment, the specific intent required under s9(1)(a) to inflict GBH, or to cause damage may be difficult to prove if the accused makes no admission. If there are evidential problems, the accused will be charged with the substantive offence or its attempt rather than burglary. One relevant option would be trespass with intent to commit a sexual offence under s63 Sexual Offences Act 2003. If the defendant took a car from a garage and it was later found abandoned, the better charge is TWOC. As a last resort if the accused is interrupted on the premises before committing one of the embedded offences, the least serious offence available to charge would be being found on enclosed premises under s4 Vagrancy Act 1824.

Examples

If the accused breaks a bedroom window and reaches through to remove a valuable ring, or as a customer in a shop, reaches behind the counter to steal money from an assistant's handbag, this would be burglary. Burglary would also include, but not be limited to, theft of a motor vehicle, high way robbery, petty theft, and pickpockets. But prosecutors often prefer charges of theft to avoid having to deal with issues of whether the entry is sufficient or as to beliefs of consent. As an application of the principle of joint enterprise or common purpose, anyone who accompanies the burglar to act as a lookout or to help carry the stolen goods away, will either be a joint principal rather than an accomplice or, in the latter situation, will be handling the stolen goods. Going equipped to steal is a substantive offense if the accused is found in a public place in possession of housebreaking implements.

Burglary is able to be tried either way as a summary offence (before a Magistrate), or on indictment in the Crown Court, and maximum sentences are 10 years for a non-dwelling and 14 years for a dwelling. Once the burglary offence is complete, passing the goods to another would be handling.

Aggravated burglary

Under s10, a burglary becomes aggravated when a burglar has with him at the time a weapon of offence, imitation firearm, firearm or explosive. (There is no requirement that any of these items are used in the commission of the offence; merely that they are in the possession of the burglar at the time.) Aggravated burglary is an indictable only offence, and carries a maximum of life imprisonment.

Time

The defendant must have the firearm, weapon, or explosive at the time of the burglary, namely:

s9(1)(a) when entering;
s9(1)(b) when committing the theft, attempted theft, GBH or attempted GBH.

Scotland

Under Scots law in Scotland the crime of burglary is called theft by housebreaking. It does not include any other aspect of burglary. Housebreaking when combined with other crimes is considered acquisitive crime. It is a crime usually prosecuted under solemn procedure.

Canada

In Canada, burglary is labeled as "Breaking and Entering" under section 348 of the Criminal Code and is a hybrid offence. Breaking and entering is defined as trespassing with intent to commit an indictable offence.

References

Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN 0-421-19960-1
Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5
Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7

External links