An individual will be guilty of aggravated burglary under section 10 of the Theft Act 1986 if they commit any burglary – and have on them an offensive weapon.
‘Simple’ burglary is an offence under section 9 of the 1968 Act. An individual will have committed a burglary if they enter any building or part of a building as a trespasser with the intention of stealing, inflicting grievous bodily harm or committing unlawful damage.
To prove aggravated burglary, the basic burglary offence must first be proved.
To establish that a burglary took place, the following elements must first be established:
- The defendant entered the building;
- That it is a building or part of a building;
- The defendant did so as a trespasser;
- They did so with intention of stealing, or inflicting GBH (etc).
Once the offence of burglary has been made out, the issue is then to establish what “weapon of offence” the defendant had on them at the time, making the offence an aggravated offence. An offensive weapon is anything made or adapted for the purpose of causing injury to or incapacitating a person, or intended by the person having it with him for such use. Typically, this will include a firearm or imitation firearm, knives and explosives.
What is meant by a firearm or imitation firearm?
Under the Theft Act, a firearm will include an air gun or air pistol. An imitation firearm will mean anything which has the appearance of being a firearm. Whether or not it is capable of being discharged isirrelevant – the only issue is whether it has the appearance of a firearm.
What is meant by explosives for these purposes?
Explosive means any article manufactured for the purposes of producing a practical effect by explosion, or intended by the person having it with them for that purpose.
What else is required to establish the offence of aggravated burglary?
The following elements need to be established to prove the offence of aggravated burglary:
- That the defendant had the offensive weapon with them;
- That the defendant had it at the time of the burglary.
This will normally mean the defendant was carrying the offensive weapon. In R v Kelt (1977), certain individuals entered a building for criminal purposes while the defendant remained outside. The defendant was in possession of a scaffolding pipe which had been used to break a window. It was held that as the defendant had not actually entered the building, he was only guilty of burglary and not aggravated burglary.
“At the time…”
These examples illustrate what is meant by having the article at the time of the burglary:
- An individual entered a house unarmed but once inside the premises picked up a knife from the kitchen. This knife was then used to force the occupier of the premises to hand over property. This was held to constitute aggravated burglary as the offence had been committed while the defendant was in possession of the weapon.
- An individual used a screwdriver to gain entry to premises. Once inside, the individual used the screwdriver as a weapon when confronted with the occupiers of the premises. It was ruled 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 constituted aggravated burglary.
Must the individual be aware they are carrying an offensive weapon?
To prove aggravated burglary, it is necessary to establish that the defendant was aware of their 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 argue that they did not intend to use the weapon?
A defendant cannot rely on the argument that they did not intend to use an offensive weapon in their possession to resist a charge of aggravated burglary.
What is the likely sentence for aggravated burglary?
The offence of aggravated burglary is a serious charge and is triable upon indictment in the Crown Court. On conviction, the defendant can be sentenced to a maximum penalty of life imprisonment.