Sample Chapter of Theft and Fraud Offences, this is part of Chapter 9 on Burglary (footnotes not included)

Chapter 9

Burglary and related offences

 if he or she enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.

The 2001 Act makes provision for burglary and aggravated burglary at sections 12 and 13. There is also reference in this chapter to related offences created by the Firearms and Offensive Weapons Act, 1990, and the Criminal Justice (Public Order) Act, 1994.

These new offences are similar to but not the same as the offences that had existed from 1976. Differences relate to the term �arrestable offence�, and the addition required for �aggravated� burglary.

In the year 2001; 23,467 burglary offences were reported or known to the Gardai, criminal proceedings were commenced in 4,254 cases, and there were 35 convictions. 346 aggravated burglary offences were reported or known to the Gardai, criminal proceedings were commenced in 75 cases, and there were 12 convictions. There were 200 offences of possession of an article with intent reported or known to the Gardai, criminal proceedings were commenced in 139 cases, and there was 1 conviction.

Burglary s. 12

 (1) A person is guilty of burglary if he or she�

(a) enters any building or part of a building as a trespasser and with intent to commit an arrestable offence, or

(b) having entered any building or part of a building as a trespasser, commits or attempts to commit any such offence therein.

(2) References in subsection (1) to a building shall apply also to an inhabited vehicle or vessel and to any other inhabited temporary or movable structure, and shall apply to any such vehicle, vessel or structure at times when the person having a habitation in it is not there as well as at times when the person is there.

(3) A person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.

 (4) In this section, ��arrestable offence�� means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or by a more severe penalty.

Modes of committing

The offence may arise where a person:

(1) enters any building as a trespasser with intent to commit an arrestable offence, or

 (2) enters any part of a building as a trespasser with intent to commit an arrestable offence, or

(3) having entered any building as a trespasser, commits an arrestable offence therein; or

(4) having entered any part of a building as a trespasser, commits an arrestable offence therein; or

(5) having entered any building as a trespasser, attempts to commit an arrestable offence therein; or

(6) having entered any part of a building as a trespasser, attempts to commit an arrestable offence therein.

Elements of the offence

The elements of the offence of burglary under section 12(1)(a) are:

1. enters

2. building or part of a building

3. as a trespasser

4. intent to commit an arrestable offence.

The actus reus is entering any building or part of a building as a trespasser. The mens rea is an intentional trespass with an intent to commit an arrestable offence.

The elements of the offence of burglary under section 12(1)(b) are:

1. having entered 2. building or part of a building

3. as a trespasser

4. commits or attempts to commit an arrestable offence.

The actus reus is having entered any building or part of the building as a trespasser commits or attempts to commit an arrestable offence. The mens rea is an intentional trespass together with an intent to commit an arrestable offence.

 �enter�

The term �enter� is not defined in the Act. There is no clear views as to what constitutes an entry, and there are no Irish decisions. What appears to be required is an effective and substantial entry in the circumstances of the case. However more recent English case law has placed the emphasis upon �effective� rather than �substantial�. At common law there was a sufficient entry where an accused sent a child into a building to steal#.

In Davies (1823)# the accused a young boy pushed his finger against a glass pane in the corner of a window. The pressure caused the glass to fall inside, and his finger was seen inside the building. There was held to be a sufficient entry. If an instrument was inserted into the building for the purpose of committing an ulterior offence, there was an entry even though no part of the body was introduced into the building. On the other hand, the insertion of an instrument for the purpose of gaining entry and not for the purpose of committing the ulterior offence, was not an entry if no part of the body had entered.

In Collins (1973)#, Collins had climbed a ladder to an open window through which he saw a sleeping girl, with whom he had some slight acquaintance. The girl awoke and believing that Collins was her boyfriend, welcomed him to her bed, where intercourse took place. On discovering her mistake the girl struck Collins. Collins was convicted of burglary in that he had entered a building as a trespasser with intent to commit rape. The Court of Appeal allowed an appeal on the basis that the jury were never invited to consider the question whether Collins did enter the premises as a trespasser, that is to say knowing perfectly well that he had no invitation to enter or reckless of whether or not his entry was with permission.

In Brown (1985)#, Brown had been seen partially inside a broken shop window, his feet still on the ground outside, rummaging through the goods. He was convicted of burglary and appealed on the basis that entry meant a complete entry. His appeal was dismissed, it being held that the entry had to be �effective�. Whether it is so depends on the circumstances of the case, and it was obviously effective here.

In Ryan (1996)#, Ryan was found with his head and right arm trapped in a downstairs window in the middle of the night. He appealed a conviction for burglay on the ground that there had been no entry. His appeal was rejected on the ground that his partial entry was sufficient, and that it was irrelevant whether he was capable of stealing. In the United States# �enter� means to intrude: 1. any part of the body; or 2. any physical object connected with the body.

�building�

�building� itself is not defined, presumably it covers not only houses, but shops and offices, there is no requirement that it be an inhabited dwelling. Subsection 2 states that references to a building shall apply also to an inhabited vehicle or vessel at times when the person having a habitation in it is not there as well as well as at times when he is there. Caravans and houseboats would thus be included. Outbuildings of a house seem to be a building. To be a building, the structure must have some degree of permanence and probably there is a requirement of a roof. It seems clear that it would not include a tent even though some person lived in the tent.

In Leathley (1979)#, good were stolen from a freezer container in a farmyard. The argument by the defendants that it was a piece of industrial plant was rejected by the court. The container was held to be a building it was about 25 feet by 7 feet, weighted about 3 tons, had been in position for a few years, it was connected to electricity and locked.

In Norfolk Constabulary v. Seeking and Gould (1986)#, two articulated lorry trailers which had been used by a supermarket for a year as temporary storeroom were held not to be a building.

 �or part of a building�

An accused may be entitled to enter one part of a building but not another. Thus the alternative �or part of a building� would cover such a situation. A lodger may commit burglary by entering the room of another lodger in the same house. A hotel guest may commit burglary by entering the room of another guest. There is sufficient �part of a building� where a defined area exists, which need not be permanent. It would be necessary for the prosecution to prove an intent in respect of the part of the building entered.

In Walkington (1979)#, the accused was charged with burglary from a till in a store. The till was standing on a counter and the questions for the jury were (1) did the management regard the floor area within the three sides of the counter as being restricted to staff; (2) if the answer to (1) was yes , did the accused realise that this area was so restricted and (3) if he did, did he enter it with intent to steal from it?

 �trespass�

�Trespass� which is a civil concept; involves an entry on land without an invitation of any sort and without lawful justification. A trespass is not criminal unless an intent to commit a criminal act was there at the time of the trespass. It would not be trespass where a person stumbled into a building or where a person was dragged involuntarily into a building. Where consent to entry is obtained by fraud, then the entry is a trespass. In the case of mistake, a defendant ought not to be guilty of burglary if he honestly believes that the owner has consented, or honestly believes that he has a right of entry even though his mistake in the circumstances is an unreasonable one. Note Collins above. The questions that arise are: 1. did the person entering have permission to enter ? 2. had a person with permission to enter exceeded the limits of such permission ?

In Jones and Smith (1976)#, Smith and Jones had entered a bungalow belonging to the father of one of them and had taken two televisions. They were convicted of burglary. They appealed on the basis that a person who had a general permission to enter, such as a son, could not be a trespasser for the purposes of the offence. The Court of Appeal dismissed the appeal. James L.J. stated �it is our view that a person is a trespasser....if he enters premises of another knowing that he is entering in excess of the permission that has been given to him, or being reckless that he is acting in excess of the permission given or that he is acting recklessly as to whether he exceeds that permission, then, that is sufficient for the jury to decide that he is in fact a trespasser.�

��arrestable offence��

By subsection (3) this means an offence for which a person of full age and not previously convicted may be punished by imprisonment for a term of five years or more. The substitution of arrestable offence rather than the previous specific listing of the ulterior offences means a considerable widening of the offence of burglary. Clearly offences such as, theft, assault causing harm, causing serious harm, rape, rape under section 4, aggravated sexual assault, sexual assault, and criminal damage to property, are included but so to are many more, and it would be prolific to attempt to list them.

Mens rea

The mens rea of burglary subject to a decision of the Courts consists of both an intent to enter as a trespasser together with an intent to commit the ulterior offence. The decision of the English courts in Collins (see above) was that burglary requires a knowlege as to trespass or recklessness as to such. If the accused mistakenly believes that he has consent to enter, even if his mistake is unreasonable, he cannot be convicted. Likewise if an accused was invited by a person who has no right to do so. With respect to the ulterior offence. The accused must either have entered with intent to commit an arrestable offence, or entered and committed or attempted to commit an arrestable offence. In the case of 12(1)(a) the �intent� must have existed at the time of the entry, the subsequent formation of an intention to steal after an entry will not suffice. However a conditional intent such that he will steal if there is anything worth stealing will suffice#. It is not relevant that the stealing was or was not possible; it is sufficient that an accused had an intent to steal. In the case of Walkington referred to above, there was no money in the till.

Aggravated burglary s. 13

The elements of burglary referred to above have application to aggravated burglary. The additional elements is that at the time an accused has with him any firearm or imitation firearm, any weapon of offence or any explosive.

It is provided by section 13(1) that:

A person is guilty of aggravated burglary if he or she commits any burglary and at the time has with him or her any firearm or imitation firearm, any weapon of offence or any explosive.

�firearm or imitation firearm�, �weapon of offence� �explosive�.

These terms are as defined in section 13(2): ��explosive�� means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him or her for that purpose;

��firearm�� means:

(a) a lethal firearm or other lethal weapon of any description from which any shot, bullet or other missile can be discharged,

(b) an air gun (which expression includes an air rifle and an air pistol) or any other weapon incorporating a barrel from which metal or other slugs can be discharged,

(c) a crossbow,

(d) any type of stun gun or other weapon for causing any shock or other disablement to a person by means of electricity or any other kind of energy emission; ��imitation firearm�� means anything which is not a firearm but has the appearance of being one;

��weapon of offence�� means:

(a) any article which has a blade or sharp point,

(b) any other article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him or her for such use or for threatening such use,

(c) any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas or other noxious thing. Handcuffs are an example of an article made for incapacitation, and a piece of rope would be if it was intended that it would be used to tie a person up. There is English authority that an article which an accused did not have with him for the purpose of injury or incapacitation, or with which he had armed himself, will be an article �intended for use� if, having formed the intention to use it, he does so.

In Kelly (1992)#, it was held that the accused who had used a screwdriver to effect an entry, became guilty of aggravated burglary when he used it to prod a person in the stomach. Smith & Hogan# consider this to be a dubious decision. There can be no doubt that a syringe# would be a weapon of offence.

�at the time�

�at the time� for a person to be convicted, it is necessary to show that he had the firearm etc. with him at the time he committed the burglary. In the case of 12(1)(a) �at the time� is the time of entry, in the case of 12(1)(b) �at the time� is at the time of commission of the arrestable offence.

In Francis (1982)#, the accused gained entry to a house, armed with sticks. After throwing away the sticks he stole property. The Court of Appeal substituted a conviction for burglary for one of aggravated burglary. Unless the accused intended to steal when he entered the house, he was only guilty of aggravated burglary if he had a weapon with him at the time when he stole.

In O�Leary (1986)#, the accused entered a house as a trespasser took a knife from the kitchen and went upstairs and used the knife to force the occupier to hand over property. It was held by the Court of Appeal that the material time for the possession of a weapon is the point at which the accused actually stole.

Penalty s. 13(3)

A person guilty of aggravated burglary is liable on conviction on indictment to imprisonment for life.