What is the meant by the criminal offence of burglary?

Section 9 of the Theft Act 1968

Burglary is defined by Section 9 of the Theft Act 1968 which provides for two different variants of the offence.

What are the two different variants of the offence?

Under Section 9 an individual will be guilty of burglary in one of the two following situations:

  • If he enters any building or part of a building as a trespasser with intent to steal, inflict grievous bodily harm or do unlawful damage to the building or anything in it
  • If having entered a building or part of a building as a trespasser an individual attempts to steal anything in the building or inflicts or attempts to inflict grievous bodily harm on any person in the building

What needs to be established in order to prove the offence?

The following elements need to be established in order to prove the criminal offence of burglary:

  •       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

An individual’s entry to a building

In most cases it will be routine to find physical evidence in order to prove that an individual has entered a building. However, in certain situations it may be difficult to decide whether an entry has occurred in law.

How can it be established whether an entry has occurred?

In law for an entry to occur it must be shown that the entry was substantial and effective.

When will this come into play?

This issue will often come into play when an individual has been found to have partially entered premises. For example there has been a case whereby an individual remained standing on the pavement outside a shop and was leaning through a window sorting through property. Another example is where an individual was only partially in a building as they had been trapped by a window.

In both these cases it was held that the entry had been sufficient to be convicted for burglary. In the second example it was also held to be immaterial that the defendant was not able to steal anything due to being trapped by the window.

A building or part of a building

There is no definition contained within the Theft Act 1968 as to what will constitute a building or part of a building. Accordingly this is a decision which will be left up to the jury.

Does the Theft Act give any kind of guidance?

Section 9(4) of the Theft Act does specifically state that the term building will include an inhabited vehicle or vessel.

What does this mean?

This means that such things as motor homes, caravans and houseboats will be protected by Section 9 even when they are temporarily unoccupied.

What is meant by part of a building?

Section 9 makes specific reference to part of a building. In a specific case the defendant entered a large shop during trading hours, going behind a counter and stealing money from the till. Accordingly the court held that the individual had entered the part of the building normally reserved for staff as a trespasser and was guilty of burglary.

Entering the building as a trespasser

In order for an individual to be trespassing they will have entered or remained on another person’s property without authority.

Can an individual who has entered a building legally then become a trespasser?

In certain cases when an individual has entered a building with permission but has in fact entered for a different purpose will subsequently become a trespasser.

For example when an individual had general permission to enter his father’s home he became a trespasser when he did so with the intention of stealing the television set as this was inconsistent with the general permission for entry.

Distraction Burglary

In many cases an individual will deceive another to gain access to the premises by impersonating an individual who represents a water, gas or electricity supplier.  This is often termed distraction burglary and will fall within Section 9 of the Theft Act.


In order to establish burglary the intention to commit the crime must be established beyond a reasonable doubt.

An example of a situation whereby there was not the requisite intention is if an individual enters a building to regain property which he honestly believes he has a right to take then there will be no intention to steal meaning the defendant will be entitled to be acquitted.

Is recklessness sufficient to establish liability?

In certain cases it has been held that the defendant must at least be reckless as to whether his entry is a trespass.

For example for the first offence established by Section 9 proof beyond a reasonable doubt is required that the defendant intended to commit the offence specified as part of the burglary.

For the second offence established by Section 9 the intention is that of the offence committed. For example if grievous bodily harm is inflicted recklessness will be sufficient to establish liability.

What is the likely sentence for an individual convicted of burglary?

Under Section 9 of the Theft Act the maximum sentence that an individual convicted of burglary will be provided with is as follows:

  •       14 years – where the offence was committed in respect of a building which is a dwelling
  •       10 years – where the offence was committed in relation to any other buildings

Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances are in evidence.