Burglary is an offence which is defined by Section 9 of the Theft Act 1968.

An offender will be found guilty of burglary in any of the following situations:

  • If an individual enters a building or part of it and they are trespassing. The individual must have an intention of stealing from the property, carrying out unlawful damage or inflicting grievous bodily harm
  • Once the individual has entered a building or part of it and they are trespassing and they make any attempt to steal or causes or intends to cause grievous bodily harm to anyone in the building

If either of the above applies, certain elements must be established in order to prove that an offence was committed.

Proof must evidence:

  • The individual actually entered the building or part of it
  • This entry was gained as a trespasser
  • These actions were carried out with intent

Entry to the building


In the majority of instances it is a routine part of the investigation to obtain physical evidence to prove that the individual was inside the building, but in some situations it can prove more difficult to actually prove whether entry has been gained from a legal perspective.

When it comes to the law, it must be clearly evident that the entry was both effective and substantial. This will apply when it is found that the individual has partially entered a building. An example would be if they were part way through gaining entry via a window.

In this instance it would suffice that the entry was adequate enough for the individual to be convicted of a burglary offence. The intention to steal anything is immaterial in a situation such as this. Under the Theft Act 1968 there are no definitions of what constitutes a building or part of a building so this decision is at the discretion of the jury.

In Section 9(4) of the Theft Act the phrase ‘building’ will also include any inhabited vessel or vehicle so a houseboat, motor home or caravan will be protected under the Theft Act when they are temporarily uninhabited.

Burglary is committed when the individual is trespassing which means that they have entered a building without the right authority to do so. In some situations, an individual can enter a building with the correct authority but then become a trespasser if they enter the building with the intention of stealing.

What is Distraction Burglary?

In some situations, there will be an element of deception in order to gain access to a building through the impersonation of an official with the intent of stealing. This is known as distraction burglary and falls under Section 9 of the Theft Act.

Furthermore, for burglary to be an offence there must be the intention to commit a crime and this must be proven beyond reasonable doubt.

Is recklessness sufficient to establish liability?

In certain cases it has been held that the defendant must at least be reckless as to whether his entry is a trespass.

Mens Rea and Burglary

Burglary under Section 9 of the Act states that a Mens Rea is applicable to the offence.

There are two elements to the burglary mens rea:

  1. There must be recklessness or the intention to trespass on behalf of the defendant
  2. It must be established that the defendant (a) had full intention of committing an offence whether this was to steal, commit grievous bodily harm or cause unlawful damage or (b) entered the building or made an attempt to commit an offence whether this was to steal something or inflict grievous bodily harm

In both of the above situations, the defendant will have an intention to commit an offence whether or not they do so. If for example, a defendant enters a building with the intention of stealing or committing grievous bodily harm but they cannot find anything to steal or they do not locate the subject of the grievous bodily harm, this cannot be used as a defence.


Section 9 of the Theft Act states that the maximum sentence for a burglary offence will be:

  • If the offence is committed in a dwelling – 14 years maximum
  • If the offence is committed in a commercial building or other premises – 10 years

In accordance with Section of the Crime (Sentences) Act 1997, there is a minimum three year prison sentence for offenders who have been convicted on three occasions unless there are exceptional circumstances.

Aggravated Burglary as a Criminal Offence

In legal terms, Section 10 of the Theft Act states that an individual can be successfully convicted of an offence of aggravated burglary if they commit the offence and at the time are in possession of an actual or imitation firearm, any type of weapon or explosive.

An imitation fire arm under the law will include anything such as an air pistol or an air gun or anything which could appear to be a firearm. When identifying an imitation firearm, it is irrelevant as to whether the imitation firearm has the ability to be discharged or not. The only consideration that needs to be made is whether the object has the appearance of an actual firearm. A weapon could be anything that has been adapted or made with the intention of causing harm or injury to another person. An explosive will refer to any article which intends to cause an explosion.

In addition to the above there are other factors that need to be established to prove aggravated burglary. The first is that the defendant was in possession of the article and the defendant was in possession of this at the time of the offence.

For aggravated burglary to be proven, it is necessary to establish that the defendant was fully aware that they were in possession of a weapon. If the defendant carries a weapon but they state they had no intention of using it, this cannot be used as a defence.

Aggravated burglary is a serious offence and it is punishable after being heard at a trial. The offence usually results in a custodial sentence with a maximum term of life in prison.

About the author:

This article was written by a member of the Expert Answers legal advice team and posted by Lloyd Barrett. Expert Answers provides online legal advice on all aspects of UK Law to users in the United Kingdom.

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