Burglary
Webpages concerning "Burglary"
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Wikipedia-Article "Burglary"
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| Criminal law |
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| Part of the common law series |
| Elements of crimes |
| Actus reus · Causation · Concurrence |
| Mens rea · Intention · Recklessness |
| Willful blindness · Criminal negligence |
| Ignorantia juris non excusat |
| Corporate liability |
| Classes of crimes |
| Felony/Indictable · Hybrid offence |
| Misdemeanor/Summary |
| Lesser included offense |
| Regulatory offences |
| Crimes against the person |
| Assault · Battery · Robbery |
| Kidnapping · Rape |
| Mayhem · Manslaughter · Murder |
| Crimes against property |
| Burglary · Larceny · Arson |
| Embezzlement · False pretenses |
| Extortion · Forgery · Computer crime |
| Crimes against justice |
| Bribery · Perjury |
| Obstruction of justice |
| Misprision of felony |
| Inchoate offenses |
| Solicitation · Attempt |
| Conspiracy · Accessory |
| See also Criminal Procedure |
| Other areas of the common law |
| Contract law · Tort law · Property law |
| Wills and trusts · Evidence |
Burglary – also called breaking and entering or house breaking – is a crime related to theft. It typically involves someone breaking into a house with an intent to commit a crime. To carry out a burglary is to burgle (British English) or burglarize (US English). For a summary of the history of this offense, see burglary (history).
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United States
In most jurisdictions in the United States, burglary is a felony and involves trespassing, or entering a building or remaining unlawfully with intent to commit any crime, not necessarily a felony or theft. Thus, a conviction for burglary may qualify as a conviction under a three strikes law or habitual criminal statute, even though only something of low value or nothing at all was stolen. Some burglaries have rape as an objective, so the crime of burglary cannot be trivialized as a mere property crime. As with all legal definitions in the U.S., the foregoing description may not be applicable in every jurisdiction since there are 51 separate criminal codes in force.
The state of Massachusetts is somewhat unique in that it does not formally use the term "burglary;" instead, the acts of breaking and entering and any theft that occurs coincident with such entry are treated as separate offenses, with the former being officially denoted "breaking and entering in the night-time (or daytime, as applicable) with intent to commit a felony (or misdemeanor, as applicable)," and the latter "(grand or petit) larceny from a building," if any property was indeed stolen. Thus if the perpetrator's intended act after entering the burglarized premises was not a felony, the result can be two different misdemeanor charges rather than a felony count.
Many other U.S. states treat burglary as a more serious crime when it occurs at night; California formerly prosecuted night-time burglary as "burglary in the first degree" and daytime burglary as "burglary in the second degree," under most circumstances (this state now uses building type — residential vs. commercial — in making the determination, with residential burglaries carrying the more serious charge). In states that continue to punish night-time burglary more severely than daytime burglary and the crime occurred during twilight, a standard of 30 minutes after sunset or before sunrise will often be observed as the boundary between night and day.
England and Wales
In England and Wales, burglary is dealt with in s9 Theft Act 1968 which provides:
- (1)(a) any person who enters as a trespasser, any building or part of a building, inhabited vehicle or vessel with the intent to steal, inflict grievous bodily harm, commit criminal damage or commit rape will be guilty of the offence of burglary.
- (1)(b) where any person, having entered any building, part of a building, inhabited vehicle or vessel as a trespasser, commits or attempts to commit a theft or inflicts or attempts to inflict grievous bodily harm.
Elements of the offense
Entry as a trespasser
Trespass means that any presence, even partial, on the premises is without the consent of the owner. This requires that the defendant knows the entry to be unlawful. To avoid a conviction, the defendant must prove either that he or she had the owner's consent to be on the premises for the particular purposes, or that the owner would have consented had he or she been aware of all the material circumstances. Thus, if the defendant enters the common part of a shop, there is a licence to be on the premises for the purposes of buying any of the goods on display. But if the defendant goes into a part of the shop which is obviously not intended for common use to commit one of the embedded offenses, the test will be whether the defendant honestly believed that the shopkeeper would have consented had he or she been asked.
Building or part of a building
Building includes outhouses or sheds and inhabited vehicles or vessels such as a caravan or houseboat, and, as above, the defendant may enter a building with consent and then become a trespasser by entering a part without permission.
Mens rea
Although there may be clear evidence of an intention to steal if the defendant is carrying housebreaking equipment, the specific intent required under s9(1)(a) to inflict GBH, to rape or to cause damage may be difficult to prove if the accused makes no admission. If there are evidential problems, the accused will be charged with the substantive offense or its attempt rather than burglary. One relevant option would be trespass with intent to commit a sexual offence under s63 Sexual Offences Act 2003. If the defendant took a car from a garage and it was later found abandoned, the better charge is TWOC. As a last report if the accused is interrupted on the premises before committing one of the embedded offenses, the least serious offense available to charge would be being found on enclosed premises under 4 Vagrancy Act 1824.
Examples
If the accused breaks a bedroom window and reaches through to remove a valuable ring, or as a customer in a shop, reaches behind the counter to steal money from an assistant's handbag, this would be burglary. But prosecutors often prefer charges of s1 theft to avoid having to deal with issues of whether the entry is sufficient or as to beliefs of consent. As an application of the principle of joint enterprise or common purpose, anyone who accompanies the burglar to act as a lookout or to help carry the stolen goods away, will either be a joint principal rather than an accomplice or, in the latter situation, will be handling the stolen goods. Going equipped to steal is a substantive if the accused is found in a public place in possession of housebreaking implements.
Burglary is triable either as a summary offence (before a Magistrate) or on indictment in the Crown Court, and maximum sentences for are 10 years for a non-dwelling and 14 years for a dwelling. Once the burglary offence is complete, passing the goods to another would be handling.
Aggravated Burglary
Under s10, a burglary becomes aggravated when a burglar has with him at the time a weapon of offence, imitation firearm, firearm or explosive. (There is no requirement that any of these items are used in the commission of the offence; merely that they are in the possession of the burglar at the time). Aggravated burglary is an indictable only offence, and carries a maximum of life imprisonment.
Time
The defendant must have the firearm, weapon, or explosive at the time of the burglary, namely:
- s9(1)(a) when entering;
- s9(1)(b) when committing the theft, attempted theft, GBH or attempted GBH.
Scotland
Under Scots law in Scotland the crime of burglary is called theft by housebreaking, it does not include any other aspect of burglary, housebreaking when combined with other crimes is considered to acquisitive crime. It is a crime usually prosecuted under solemn procedure.
Canada
In Canada, burglary is labeled as "Breaking and Entering" under section 348 of the Criminal Code and is a hybrid offence. The provision of Breaking and Entering consists of "breaking or entering" into or out of a place and either intends to or actually commits an indictable offence.
See also
References
- Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN: 0199279187.
- Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
- Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN: 0421199601
- Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN: 0406977305
- Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN: 0406895457