burglary n : entering a building unlawfully with intent to commit a felony or to steal valuable property
the crime of breaking into
- Finnish: murto
- French: cambriolage
- German: Einbruch, Einbruchdiebstahl
- Hebrew: פריצה
- Ido: rupto-furto
Burglary (also called breaking and entering and sometimes housebreaking) is a crime the essence of which is entry into a building for the purposes of committing an offence. Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. Commission of burglary is normally referred to as to burgle (in British English) or burglarize (in American English).
Common law definitionThe common law definition of burglary was described by Sir Matthew Hale as
- Breaking- this could be either actual, such as by forcing a door, or constructive, such as by fraud or threats and involves trespassing and theft, entering a building or automobile, or remaining unlawfully with intent to commit theft or any crime, not necessarily a theft -- for example, vandalism. Even if nothing is stolen in a burglary, the act is a statutory offense. Burglary may be an element in crimes involving arson, kidnapping, identity theft, or violation of civil rights; indeed the "plumbers" of the Watergate scandal were technically burglars. As with all legal definitions in the U.S., the foregoing description may not be applicable in every jurisdiction, since there are 50 separate state criminal codes, plus Federal and territorial codes in force.
The acts of burglary and any theft that occurs coincident with such entry are treated as separate offenses. 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. The theft itself might be charged as "(grand or petit) larceny from a building". However, in Kentucky only unlawful presence and an intent to commit a crime are required.
The Commonwealth of Massachusetts formally uses the term "breaking and entering" as well as "burglary". In criminal code of the State of New Hampshire, "A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied section thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter."
Under New York penal law, burglary is always a felony, even in third degree. It is more serious if the perpetrator uses what appears to be a dangerous weapon, or if he or she eneters a dwelling.
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/auto — 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 WalesBurglary is defined by section 9 of the Theft Act 1968 which created two variants:
Elements of the offence
"Enters"Although physical evidence of entry is not normally difficult to obtain, it can be difficult on occasions to decide whether an entry has occurred in law. In R v Collins, it was held that entry had to be "substantial" and "effective". The issue arose in R v Brown 1985 71 Cr App R 15 in which the defendant had been found on the pavement outside a shop with the top half of his body through the broken window, sorting though property on display for sale; this was held by the Court of Appeal to constitute an effective entry, while regarding the use of the word "substantial" as unnecessarily wide. It was ruled that the jury had been entitled to conclude that the entry had been effective. Furthermore, in R v Ryan 1996 160 JP 610, the defendant had been found partially within a building, having been trapped by a window, and argued that this was not a sufficient entry. However, he was convicted as it was held that a partial entry was sufficient and that it was irrelevant that he was due to circumstances incapable of stealing anything.
"Building or part of a building"The Theft Act 1968 does not define a building, so this must be a matter of fact for the jury, however Section 9(3) specifically states that the term includes an "inhabited vehicle or vessel"; hence motor homes, caravans and houseboats are protected by the section even when temporarily unoccupied. Burglary can also be committed in "part of a building" and in R v Walkington 1979 1 WLR 1169 the defendant had entered a large shop during trading hours but went behind a counter and stole money from a till. The court held that he had entered that part of the building normally reserved for staff as a trespasser and was therefore guilty of burglary.
"As a trespasser"The essence of trespass is entering or remaining another's property without authority; a person having permission to enter property for one purpose who in fact enters for another purpose may become a trespasser, and in R v Jones and Smith, a defendant who had a general permission to enter his father's home became a trespasser when he did so in order to steal a television set, because doing so was inconsistent with the general permission. In recent years, the terms "distraction burglary", "artifice burglary" and "burglary by trick" have been used in crime prevention circles when access to premises is granted as a result of some deception on the occupier, usually by a pretence that the burglar represents some body who might reasonably request access such as a water, gas or electricity supplier. There is no separate legal definition of this variant.
"With intent"The intention to commit an offence, being an essential element of burglary, requires proof beyond reasonable doubt. For example, if entry is made to regain property which the defendant honestly believes he has a right to take, there is no intention to steal and the defendant is entitled to be acquitted. However, it has been held that a conditional intent to steal anything found to be of value is enough to satisfy this requirement.
Mens ReaR v Collins is authority for the proposition that the defendant must at least be reckless as to whether his entry is a trespass. For the Section 9(1)(a) offence, proof beyond reasonable doubt is required that the defendant intended to commit the offence specified as part of the burglary. In the Section 9(1)(b) offence, the mens rea is that of the offence committed, such that, for example, if grievous bodily harm is inflicted, recklessness will be sufficient to establish liability.
Trial and SentenceThe maximum penalty for burglary is 14 years imprisonment if committed in a dwelling and 10 years otherwise. Higher courts have consistently upheld lengthy custodial sentences for burglaries of dwellings; see, for example R v Brewster 1998 1 Cr App R (S) 181
Aggravated burglaryUnder section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm, imitation firearm, weapon of offence, or any explosive".
"Has with him"In R v Kelt 1977 65 Cr App R 74 it was held that this phrase will normally mean mean "carrying", and in R v Klass 162 JP 105, The Times, 17 December 1997 (CA) others had entered a building for criminal purposes while the defendant remained outside, but in possession of a scaffolding pole which had been used to break a window. This did not, in law, constitute an entry for the purposes of burglary. It was held that since Klass had not himself entered the building, he was guilty of burglary and not aggravated burglary.
"At the time"
- In R v O'Leary 1986 82 Cr App R 337, the defendant entered a house unarmed but picked up a kitchen knife once inside; he then used it to force the occupier to hand over property. It was held that this constituted aggravated burglary because the offence which was part of the enterprise had been committed while in possession of the weapon.
- In R v Kelly, 1992 The Times, December 2, the defendant had used a screwdriver to gain entry; once inside the premises, he was confronted by the occupiers and used the screwdriver as a weapon to force them to hand over a video recorder. It was held that the screwdriver became an offensive weapon when he formed an intention to use it for causing injury to the occupier at the time of the theft, and therefore he was guilty of aggravated burglary.
Mens ReaIt is necessary to prove that the defendant was aware of his possession of a weapon to convict of aggravated burglary. In R v Russell 1984 Crim L R 425, the defendant was found in possession of a knife but had forgotten that he had it; it was held that he was not guilty of aggravated burglary. A plea that the defendant did not intend to use the weapon is not a defence to this charge (R v Stones 1989 1 WLR 156).
Trial and SentenceAggravated burglary carries a maximum sentence of life imprisonment and is therefore triable only on indictment.
ScotlandUnder 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 acquisitive crime. It is a crime usually prosecuted under solemn procedure.
CanadaIn Canada, burglary is labeled as "Breaking and Entering" under section 348 of the Criminal Code and is a hybrid offence. Breaking and entering is defined as trespassing with intent to commit an indictable offence.
Notes and References
- Allen, Michael. Textbook on Criminal Law. Oxford University Press, Oxford. (2005) ISBN 0-19-927918-7.
- Criminal Law Revision Committee. 8th Report. Theft and Related Offences. Cmnd. 2977
- Griew, Edward. Theft Acts 1968 & 1978, Sweet & Maxwell. ISBN 0-421-19960-1
- Martin, Jacqueline. Criminal Law for A2 Hodder Arnold. (2006) ISBN 978-0-340-91452-6
- Ormerod, David. Smith and Hogan Criminal Law, LexisNexis, London. (2005) ISBN 0-406-97730-5
- Smith, J. C. Law of Theft, LexisNexis: London. (1997) ISBN 0-406-89545-7
burglary in German: Einbruch
burglary in Hebrew: פריצה
burglary in Dutch: Braak (misdrijf)
burglary in Norwegian: Innbrudd
burglary in Swedish: Inbrott