Burglary and aggravated burglary (s9 and s10 Theft Act 1968)

Introduction to Burglary

When most people think of burglary, they imagine a person in a mask breaking into a house at night to steal a TV. While that is burglary, the legal definition under the Theft Act 1968 is much broader! Burglary is essentially about being somewhere you shouldn't be (as a trespasser) with a "bad" intention or followed by a "bad" act. It is a serious offence against property that carries significant prison sentences.

Don't worry if the different sections seem confusing at first—we are going to break down the two "ways" to commit burglary so you can easily spot them in an exam scenario.

The Two Types of Burglary: s9(1)(a) and s9(1)(b)

Under Section 9 of the Theft Act 1968, there are two distinct ways a person can be guilty of burglary. Think of these as two different paths to the same crime.

1. Section 9(1)(a): Entering with Intent

This happens the very moment a person enters a building as a trespasser, provided they have the intent to do one of three things inside:

(i) Steal anything in the building;
(ii) Inflict GBH (Grievous Bodily Harm) on any person therein;
(iii) Do unlawful damage to the building or anything inside it.

Key Point: For s9(1)(a), the person doesn't actually have to succeed in stealing or hurting anyone. The crime is complete the moment they step inside with that "bad" intent in their mind.

2. Section 9(1)(b): Committing the Offence After Entry

This happens when a person has already entered a building as a trespasser and, once inside, they actually:

(i) Steal or attempt to steal anything; or
(ii) Inflict or attempt to inflict GBH on any person.

Key Point: Unlike s9(1)(a), s9(1)(b) requires the person to actually commit (or try to commit) the theft or GBH. Also, notice that criminal damage is not part of s9(1)(b).

The Actus Reus of Burglary

To prove burglary, the prosecution must show three physical elements (the Actus Reus):

1. Entry

What counts as "entering"? In English law, the courts have decided that the entry doesn't have to be the whole body. If any part of the defendant's body enters the building in a way that allows them to commit the crime, it counts. For example, reaching a hand through a window to grab a purse is enough.

2. Building or Part of a Building

The Theft Act 1968 s9(4) extends the definition of a "building" to include inhabited vehicles or vessels (like a lived-in caravan or a houseboat), even if the person isn't home at the time.

"Part of a building" is also very important. A person might have permission to be in a shop, but if they go behind the counter or into a "Staff Only" back room without permission, they have entered a part of a building as a trespasser.

3. As a Trespasser

A trespasser is someone who enters without legal right or permission. You can become a trespasser in two ways:

(i) No permission at all: Climbing through a window at night.
(ii) Exceeding permission: Entering a building for a purpose the owner wouldn't allow. For example, if you are invited into a friend's house but you only went there to steal their laptop, you have entered as a trespasser because your "permission" did not cover entering for a criminal purpose.

Quick Review: Actus Reus

1. Entry (even just a hand).
2. Building (or part of one, like a storeroom).
3. Trespasser (no permission or exceeding permission).

The Mens Rea of Burglary

The Mens Rea (mental element) depends on which subsection you are looking at:

For both s9(1)(a) and s9(1)(b):

The defendant must know they are a trespasser or be reckless as to whether they are trespassing. They can't be guilty if they genuinely, reasonably believed they had permission to be there.

Specific Intent for s9(1)(a):

At the moment of entry, they must intend to steal, inflict GBH, or cause criminal damage.

Specific Mens Rea for s9(1)(b):

They must have the Mens Rea for theft or GBH at the time they commit those acts inside the building (e.g., they must have the "dishonesty" and "intention to permanently deprive" required for theft).

Section 10: Aggravated Burglary

Burglary becomes Aggravated Burglary under Section 10 if the defendant commits a burglary (either type) and, at the time, has a weapon with them.

The W.I.F.E. Mnemonic
To remember what counts as a weapon for Aggravated Burglary, use W.I.F.E.:
W - Weapon of offence (e.g., a knife, a crowbar used to hit someone, or even a screwdriver).
I - Imitation firearm (e.g., a plastic toy gun that looks real).
F - Firearm (a real gun).
E - Explosive.

Important Timing Rule: For s9(1)(a), the person must have the weapon at the time of entry. For s9(1)(b), they must have the weapon at the time they commit the theft or GBH inside.

Sentencing (s9(3))

The maximum sentences for burglary depend on where the crime happened:

Burglary in a Dwelling (someone's home): Up to 14 years' imprisonment.
Burglary in Non-Dwellings (shops, offices): Up to 10 years' imprisonment.
Aggravated Burglary (s10): Up to life imprisonment.

Common Mistakes to Avoid

Mistake 1: Thinking 9(1)(b) includes criminal damage. It doesn't! If someone enters as a trespasser and then decides to break a vase, they can only be charged with burglary if they had the intent to break it before they walked in (under 9(1)(a)).
Mistake 2: Thinking a weapon must be used. For Aggravated Burglary, the defendant just needs to have the weapon with them. They don't have to show it or use it.
Mistake 3: Forgetting the difference between "Theft" and "Burglary." Theft is about taking property; Burglary is about the unlawful entry into a building to do something bad.

Key Takeaway Summary

Burglary s9(1)(a): Entry + Trespass + Intent to (Steal / GBH / Damage).
Burglary s9(1)(b): Entry + Trespass + (Actually stealing or inflicting GBH / Attempting to).
Aggravated Burglary s10: Burglary + possession of a Weapon, Imitation firearm, Firearm, or Explosive.