The difference between the two subsections is the intention at the time of entry. For example s9 (1)(a) the defendant must have the intention to steal, cause GBH or do unlawful damage at the time of entry. For s9 (1)(b) what the defendant intends to do is irrelevant the prosecution must prove that the defendant committed or attempted to commit Theft or GBH. So already there are some confusions with whether or not the defendant would be guilty of Burglary under s9(1)(a) or s9(1)(b). Entry is not defined in the Theft Act, but there have been several cases that help us on what the word “Entry” actually means.
The first case on Entry was the case of Collins 1972. In this case the defendant had drunk alcohol and decided he wanted to have sex. He saw a window that was open and climbed a ladder so he could have a look in. He saw there was a naked girl inside asleep on her bed. So he went down the ladder took off his clothes and climbed back up it to the girls room. She woke up and thought it was her boyfriend and helped him into the bedroom where they had full intercourse. Collins was convicted on s9(1)(a) as he entered with intention to rape.
Before 2004 if someone was entering a building with the intention of rape it would be included in this section, but now it is under the Sexual Offences Act. Collins appealed to his conviction as he said that he wasn’t a trespasser when he entered the building as the girl invited him in. The Court of Appeal quashed his conviction as there was no evidence that he was a trespasser and this is what is needed to be guilty of s9(1)(a) and of course Burglary. Brown was also another case that helped clarify what was regarded as entry. The defendant was standing outside but leaning in through a shop window rummaging through the goods.
His feet and lower body was outside the shop. The Court of Appeal decided that he had effectively entered the building and therefore his conviction was upheld. However in the case of Ryan the need for effective entry was not followed. In his case the defendant the got trapped in the window he was trying to climb through into a house at 2. 30 am. His head and right arm was stuck inside the house and the rest of his body was outside. This could scarcely be seen to be an effective entry. How ever the Court of Appeal upheld his conviction as they said the jury could find that the defendant had entered.
So what actually qualifies as an effective entry is discovered in these cases. They have clarified by cases like Brown that you will still be guilty of burglary even if your whole body isn’t inside the actual building. Also by cases like the Collins case if you have been invited in by anybody then you cannot be guilty of burglary as you’re not a trespasser. The Theft Act does however give a description of what is considered as a building or part of a building. All inhabited places are considered as buildings so that would include houseboats or caravans, are considered as buildings/dwellings.
To be a considered as a building the structure must have some degree of permanence. The main problem for the courts, have occurred where a structure such as a portacabin for example has been used for storage or office work. Moveable structures like this can be seen as buildings even though their use in particular places is only temporary. Section 9 (4) deals with what is considered to be a building and it also says “buildings include inhabited vehicles or vessels”. Two cases that helped clarify what was considered as a building was the cases B and S v Leathley.
In this case a 25 foot long freezer container had been kept in a farmyard for over two years. It was used as a storage facility. It rested on sleepers, had doors with locks and was connected to the electricity supply. This was considered a building because it had some degree of permanence as it was there for 2 years. In the case of Norfolk Constabulary v Seeking and Gould, a lorry trailer with wheels which had been used for over a year for storage, had steps providing access and was connected to electricity supply, was held not be a building.
The fact that it had wheels meant that it remained a vehicle. The courts have tried to clarify what a building is but it is still very unclear as some aspects of what the courts look at are still very difficult, such as how long the structure is there for. “Part of building” is used to cover situations in which the defendant may have permission to be in one part of the building and is therefore not a trespasser, but doesn’t have permission to be in another part of the building. An example of this is the case of Walkington.
In this case the defendant went into a counter area in a shop and opened a till. This area was clearly marked by a three-sided counter. The defendant was convicted of burglary under section 9(1)(a) as he was a trespasser when he went behind the counter. The critical point in this case was that the counter area was not an area where customers were permitted to go. Just like storerooms in shops customers are allowed to be in the shop but not the storeroom. I think that the courts have clarified this very well because of the examples that have used especially the case of Walkington.
And the example of people not being allowed in storerooms but they are allowed in the shop. Also students are allowed in most places in school but they wouldn’t be allowed to stroll into their head teacher’s office. In order for the defendant to commit burglary they must enter as a trespasser. If they have permission to enter then that makes them not a trespasser as we have seen in the Collins case that I have explained above in the first paragraph. The original use of the word trespasser in law comes from the civil law.
It was assumed that the meaning of trespasser would be the same as in civil law that “trespass is entry without the consent of the lawful occupier of the building”. The case of Collins made it clear that there was more required that just the entry. They needed to prove that the defendant entered knowing he was a trespasser or was reckless as to whether or not he was entering the premise of another without permission. Going beyond permission is where the defendant is given permission to entre but then goes beyond that permission and then is considered a trespasser.
This is explained in the case of the Smith and Jones. In this case Smith and his friend went to Smiths fathers house in the middle of the night and took two television set’s without the father’s permission. The father stated that his son would not be a trespasser in the house; he had a general permission to entre. They were convicted for burglary as they had gone beyond their permission to be there. This is similar to the case of Barker v R, where one person was going away and asked the neighbour to watch the house and told them where the key was. The defendant used the key to entre and steal.
He was found guilty of burglary. There are many situations where a person has permission to entre for a limited purpose. For example when people go to a concert they are only allowed there for a certain amount of time. The offence of Burglary has been given a definition by Parliament, but it has been left to the courts to clarify all the key points. All the areas have been explained but some have been clarified more than others and as a consequence some areas are still very difficult to understand for example what is a building or part of a building, and going beyond permission.