Under Section 10 of the Theft Act 1968 an individual will be convicted of aggravated burglary if he commits any burglary and at the time has with him any firearm of imitation firearm, any weapon of offence, or any explosives.
The first thing to establish is that a burglary has been committed. This therefore means that the following elements must first be established:
The next thing to establish is the weapon that a defendant has with him. This can fall into one of the following three categories:
According to the Theft Act a firearm will include an air gun or air pistol, and an imitation firearm will mean anything which has the appearance of being a firearm.
For something to be considered an imitation firearm it is irrelevant as to whether it is capable of being discharged or not. The only consideration is whether it has the appearance of being a firearm.
Any weapon of offence means any article which is 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.
Explosive means any article manufactures for the purposes of producing a practical effect by explosion or intended by the person having it with him for that purpose.
The two following elements need to be established in order to prove the offence of aggravated burglary:
It has been held that the phrase will normally mean that the individual was carrying it with them.
A specific case dealt with the situation whereby certain individuals entered a building for criminal purposes while the individual defendant remained outside. The individual outside was in possession of a scaffolding pipe which had been used to break a window. It was held in this case that the defendant had not himself entered the building he was only guilty of burglary and not aggravated burglary.
The following examples show what is meant by having the article at the time of the burglary:
In order to prove aggravated burglary it is necessary to establish that the defendant was aware of his possession of the weapon. For example in one case an individual was found to be in possession of a knife, however, he had forgotten that he had it in his possession. He was found not guilty of aggravated burglary.
A defendant cannot use this as a defence to aggravated burglary.
The offence of aggravated burglary is only triable upon indictment. The offence carries with it a maximum penalty of life imprisonment.
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