Section 10 Theft Act 1968
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:
- That the person enters the building
- That it is a building or part of a building
- That they do this as a trespasser
- That they do this with intent
Potential weapons that a defendant has within him
The next thing to establish is the weapon that a defendant has with him. This can fall into one of the following three categories:
- A firearm or imitation firearm
- Any weapon of offence
- Any explosives
A firearm or imitation firearm
What is meant by a firearm or imitation firearm?
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.
Does an imitation firearm have to be capable of being discharged?
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
What is meant by any weapon of offence?
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.
What is meant by any explosives?
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.
What else needs to be proven in order to establish the offence of aggravated burglary?
The two following elements need to be established in order to prove the offence of aggravated burglary:
- That the defendant had the article with him
- That the defendant had it at the time of the burglary
Had the article with him
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.
Had it at the time of the burglary
The following examples show what is meant by having the article at the time of the burglary:
- An individual entered a house unarmed but once inside the premises he picked up a knife from the kitchen. This knife was then used to force the occupier of the premises to hand over property. In this case this was held to constitute aggravated burglary as the offence had been committed while in possession of the weapon
- An individual used a screwdriver to gain entry to premises. Once inside the individual then used the screwdriver as a weapon when confronted with the occupiers of the premises. It was decided that the screwdriver became an offensive weapon when the individual formed an intention to use it for causing injury to the occupier at the time of the theft. This therefore constituted aggravated burglary
Does an individual have to be aware of the fact that they are carrying the weapon?
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.
Can a defendant state that despite being in possession of an offensive weapon he did not intend to use it?
A defendant cannot use this as a defence to aggravated burglary.
What is the likely sentence of an individual convicted of aggravated burglary?
The offence of aggravated burglary is only triable upon indictment. The offence carries with it a maximum penalty of life imprisonment.