2.2.3 Burglary – s.9(1)(b)

Statutory Definition

• s.9(1)(b) Theft Act 1968:
  • “A person is guilty of burglary if, having entered any building or part of a building as a trespasser, he steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict grievous bodily harm on any person therein.”
• Key Difference from s.9(1)(a):
  • Under s.9(1)(a), D must intend to commit theft/GBH/damage at the time of entry.
  • Under s.9(1)(b), D commits burglary if, after entering, he goes on to actually commit or attempt theft or GBH.

Actus Reus of s.9(1)(b)

Three main elements:

1. Entry

• Same as under s.9(1)(a).
• Must be effective entry, though not necessarily complete.
• R v Brown (1985): leaning into shop window = entry.
• R v Ryan (1996): trapped halfway through window, still entry.

2. Building or Part of a Building

• Same rules as s.9(1)(a).
• Includes permanent structures, sheds, outbuildings, inhabited vehicles/vessels (s.9(4)).
• R v Walkington (1979): entering restricted area in shop counted as “part of building.”

3. Trespasser

• Entry must be as trespasser (without consent or exceeding permission).
• R v Collins (1973): consent negates trespass.
• R v Jones & Smith (1976): exceeding permission (entering father’s house to steal) = trespass.

4. Commission or Attempt of Theft/GBH After Entry

• Theft defined under s.1 Theft Act (appropriation, property, belonging, dishonesty, ITPD).
• GBH refers to serious bodily harm under s.20 Offences Against the Person Act 1861.
• Attempt covered by Criminal Attempts Act 1981.
• Case: R v Jenkins (1977)
  • D caused GBH during burglary. Court held causing GBH itself completes burglary under s.9(1)(b).

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Mens Rea of s.9(1)(b)

1. Mens rea as trespasser
   • D must know, or be reckless, as to whether entry is trespass.
   • Collins confirms this.
2. Mens rea of ulterior offence (after entry):
   • For theft → must have dishonesty (s.2) + intention to permanently deprive (s.6).
   • For GBH → must have mens rea required for that offence (intention or recklessness under s.20 OAPA 1861).
   • Key Point: Unlike s.9(1)(a), there is no need for intent at entry. It is enough if D forms intent and carries out or attempts offence once inside.

Illustrative Examples

• D breaks into shop as trespasser, without clear plan, but once inside sees money and steals → burglary under s.9(1)(b).
• D enters school as trespasser, attacks caretaker causing GBH → burglary under s.9(1)(b).
• D enters shed intending only to sleep, but later attempts theft of tools → burglary under s.9(1)(b).

Written and Compiled By Sir Hunain Zia, World Record Holder With 154 Total A Grades, 7 Distinctions and 11 World Records For Educate A Change AS Level Law Full Scale Course

Case Law Applications

• R v Jenkins (1977): inflicting GBH during burglary sufficient for s.9(1)(b).
• R v Stones (1989): D carried knife “for self-defence” during burglary. Conviction upheld: carrying weapon while trespassing aggravated burglary, even if no intent to use.
• Attorney-General’s Reference (Nos 1 & 2 of 1979): confirmed conditional intent is sufficient for s.9(1)(a); for s.9(1)(b), actual attempt or commission is required.

Distinction Between s.9(1)(a) and s.9(1)(b)

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Evaluation

• Strengths:
  • Ensures burglars cannot escape liability by arguing no intent at entry.
  • Covers situations where opportunistic theft/violence occurs after entry.
  • Broad protection for victims of intrusion.
• Weaknesses:
  • Complexity: difficult for juries to distinguish between s.9(1)(a) and s.9(1)(b).
  • Some overlap with robbery when violence used inside.
  • Lack of inclusion of criminal damage under s.9(1)(b) creates gap (only theft/GBH).

Sentencing Context

• s.9(3) Theft Act 1968:
  • Burglary in dwelling: maximum life imprisonment.
  • Burglary in non-dwelling: maximum 10 years.
• Sentences depend on planning, use of weapons, vulnerability of victim, and harm caused.

Exam Application Strategy

1. Start with statutory definition of s.9(1)(b).
2. Apply actus reus:
   • Entry (Brown, Ryan).
   • Building/part (Walkington).
   • Trespass (Collins, Jones & Smith).
   • Actual theft/attempt or GBH (Jenkins).
3. Apply mens rea:
   • Knowledge/recklessness as trespasser.
   • MR of theft (dishonesty + ITPD) or GBH (intent/recklessness).
4. Contrast with s.9(1)(a) if relevant.
5. Conclude whether burglary under s.9(1)(b) established.

Conclusion

• s.9(1)(b) burglary requires entry as trespasser + commission/attempt of theft or GBH once inside.
• Mens rea requires knowledge/recklessness as trespasser + MR of ulterior offence.
• Distinct from s.9(1)(a), where intent must exist at entry.
• Together, s.9(1)(a) and (b) ensure all forms of unlawful entry with criminal intent or conduct are covered.