Thursday 13 October 2011

Burglary - new Sentencing Guidance

Law and Lawyers looked at the August disorder in a number of posts:  Who will pay?  We all will ! The Riot (Damages) Act 1886 ... Defence of Property - what is permissible ... Some thoughts on a desperate August week ... The recent disorder: bail and sentencing ... Detained persons: blanket refusal to bail ... The August disorder - more sentencing ... August - will voices of calm prevail?

One of the interesting features about this period was the that  a charge of burglary was preferred against some of those who had taken goods from shops.  Burglary is defined by the Theft Act 1968 s.9 which, in amended form reads:


(1) A person is guilty of burglary if -

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or

(b) 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 on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein.

(3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding - (a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years; (b) in any other case, ten years.

(4) References in subsections (1) and (2) above to a building, and the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well as at times when he is.

Sections s9(1)(a) and 9(1)(b) differ significantly.  For 9(1)(a) entry as a trespasser must be proved but there does not have to be a theft (or attempted theft) but there has to be intention to steal at the time entry.  For 9(1)(b) entry as a trespasser must be proved AND the theft (or attempted theft) must be proved.

A key element of
the definition in section 9(1) is that the person must, at the time of entry, be a "trespasser."  The definition of trespasser for the purposes of the law of burglary can be found in the extraordinary case of  R v Collins [1973] QB 100 where Edmund-Davies LJ as he then was said:

in the judgment of this Court, there cannot be a conviction for entering premises "as a trespasser" within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party's consent.

Also, the entry has to be voluntary - e.g. there would not be a trespass if a person were to be dragged unwillingly into the building.

Clearly, the person in possession of the building may give permission to others to enter.  What then of entry to an open shop?  The displaying of goods in an open shop is, for the purposes of contract law, regarded as an invitation to the customer to do a deal - referred to as "invitation to treat" - see, for example, Pharmaceutical Society of GB v Boots Cash Chemists Southern Ltd [1953] 1 QB 401 - (helpfully cited on the highly useful Insite Law).  Thus, people may enter the shop to look at goods, decide whether to purchase and, if they so decide they can make an offer to the shopkeeper to buy.  Acceptance of that offer forms the contract of sale.  They pay the price, the shopkeeper hands over the goods and the customer leaves.  All that describes the scope of the general permission (or licence) given to potential customers to enter an open shop.

If a person (call him D) enters the shop intending to steal an item then he is not entering in accordance with the usual licence.   The Court of Appeal decision in R v Jones and Smith [1976] 1 WLR 672 indicates that where a person has permission to enter for one purpose but enters for another he will be a trespasser.  Thus, having entered with intent to steal, D is guilty of burglary under s9(1)(a).  Of course, this must be proved but, for example, D may admit that he entered planning to steal food or clothing or a plasma television etc.  Suppose however that D entered as a "normal " customer but on seeing some item decides to steal it.  Is he then a burglar?  It would appear not.  He did not enter as a trespasser.  However, he might be guilty of theft or attempted theft.

(For the student: useful discussion is in Michael Allen "Criminal Law" 10th Ed. at pages 522-523.  Note: there is now an 11th ed).

The civil law of trespass (i.e. trespass as a tort) has a doctrine referred to as "trespass ab initio."  It seems, from the Court of Appeal decision in R v Collins [1973] QB 100 or [1972] EWCA Crim 1 that this has no application to the law of burglary.

Sentencing for Burglary:

The Sentencing Council has issued new Guidelines for burglary - (two documents - Crown Court and Magistrates' Courts).  Law and Lawyers looked at this in May when the Council issued its consultation.   It is interesting that, for both domestic and non-domestic burglary, a factor indicating greater harm is when the offence is committed in the context of general public disorder.   This factor did not appear in the Consultation Document and has clearly arisen as a result of the "looting" of shops during August.

The Council is under a duty to publish draft guidelines - Coroners and Justice Act 2009 s.120(5) and certain persons must be consulted including "such other persons as the Council considers appropriate" - s.120(6).  After this, the Council will make any amendments it considers to be appropriate and publication as definitive guidelines the usually follows - s.120(7) and 120(8).

According to the Council, victims are central to the new guidance - see Press Release.  In relation to offending in the context of disorder, the Press Release states:

"Although the consultation closed before the disturbances in England in August, and responses did not therefore reference these events, the definitive guideline does take these events into consideration.  The Council recognises the damage caused and consequences of such events, especially for small businesses and shop owners living above or near premises, and has therefore included the context of general public disorder as a factor indicating greater harm caused in any burglary offence."

The full Response to the Consultation also notes:

"It has also been decided following discussion by the Council that, in order to adequately take account of burglary committed in the context of public disorder, there will be a new factor indicating greater harm. A factor will be added that will be able to accommodate a range of situations in which public disorder will indicate greater harm. The wording is not intended to be specific to the type of riots that were seen in August. It is capable of application in a range of situations where public disorder occurs."

The new Guidelines come into use on 16th January 2012 but they will apply to offences whenever committed.

A further interesting point was raised by a member of the public in response to an item in The Guardian 30th September - "Appeal judges rule on riot sentencing and we call for open justice."   The comment reads:

"The problem judges such as Judge Gilbart faced was that there were NO guidelines for offences of theft/burglary committed during a period of major disorder.  It is possible that, without a "get tough" attitude by the courts, the riots could have worsened.   LJ Leveson is chair of the Sentencing Council. Why didn't this far too lenient Council meet and come up with some guidance?"

Of course this comment contains the opinions of the writer but the question in the final sentence is interesting.  Disregarding the question of lenience, it is relevant to ask whether the Council could have met during the riots and issued guidance.  Maybe it could have done so under the "urgent cases" provision of Coroners and Justice Act 2009 s.123.  However, it is obvious that the sudden onset of the disorder and the speed at which the events materialised probably dictated against such a course.  The courts were faced with persons who had to be dealt with there and then.  The views put forward by Judge Gilbart (and others) have, so it appears, been criticised at a Court of Appeal hearing - Solicitor's Journal 28th September.  The final judgment of the Court of Appeal is awaited.

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