Liability for burglary

A and B entered the shop to steal alcohol giving rise to liability for burglary contrary to section 9(1)(a) of the Theft Act 1968  which defines burglary as entry into a building as a trespasser intending, inter alia, to steal.  The shop is a building and their presence therein indicates that A and B have entered it thus liability hinges upon whether they are trespassers.  The implied invitation extended by shops applies to lawful customers not individuals intent upon theft and individuals who enter in excess of the permission granted are trespassers.   Accordingly, A and B are trespassers as soon as they enter the shop intending to steal and their liability for section 9(1)(a) burglary arises at this point irrespective of whether they actually go on to commit theft

Once within the shop, A and B put bottles of alcohol in their bag which may give rise to burglary contrary to section 9(1)(b) as they have entered a building as trespassers (as established above) and committed theft. 

Theft is the dishonest appropriation of property belonging to another with intention to permanently deprive.   The actus reus of theft is appropriation of property belonging to another and is satisfied by the interference with the bottles (property) belonging to the shop.  Appropriation is an assumption of the rights of the owner, regardless of any consent to this assumption.   A and B assume the rights of the owner by handling the bottles and placing them in their bag, something only the owner has the right to do, thus satisfying the actus reus of theft.  Their intention to remove and consume the alcohol establishes an intention to permanently deprive thus the final element to be established is dishonesty. 

Section 2 provides that a person is not dishonest if they believe that they are entitled to the property.   If A believes she is entitled to take property as she is owed money by the shop, an honestly-held belief  to this effect means that she is not dishonest.   However, she must believe that she is legally, rather than morally, entitled to the property.  Moreover, she hides when she sees a guard which suggests awareness that her conduct is not honest.  Therefore, the dishonesty of A and B will be determined by the Ghosh test which asks whether the conduct is dishonest according to the ‘ordinary standards of reasonable and honest people’ and, if so, whether the defendant realised this.   Reasonable and honest people are likely to view the surreptitious removal of property from a shop as dishonest and A and B’s attempts to evade the guard indicate awareness of this thus satisfying the dishonesty requirement of theft and completing their liability for theft and burglary.

If A and B moved into an area restricted to staff whilst evading the guard, this would amount to a ‘part of a building’  for the purposes of burglary.   However, they did so in order to avoid detection rather than to steal, commit criminal damage or cause GBH hence no further liability for burglary arises.

A may be liable for theft and therefore section 9(1)(b) burglary in relation to the cookie.  It is property belonging to the shop and A has appropriated it by picking it up.  It is likely that she intends to permanently deprive the shop of it by eating it.  It is unclear whether she intends to pay for it; if not, she will be dishonest and liable for theft and burglary.

When they are approached by the guard, B produces a knife which horrifies A.  This suggests that she is unaware that B was armed and had not contemplated the use of a weapon.  B strikes the guard rendering him unconscious momentarily thus may be liable for assault occasioning actual bodily harm  or wounding/GBH depending upon the quantification of the harm caused to the guard.   If the injury amount to grievous, as opposed to actual, bodily harm, this will give rise to further liability for burglary as B entered the building as a trespasser and has caused GBH.   Transient loss of consciousness is more likely to amount to ABH, however, thus no further liability for burglary will arise.   The actus reus of section 47 is satisfied by the battery involved in the infliction of the blow and the consequent loss of consciousness.  The mens rea relates to the battery only  and is satisfied as the blow was deliberate hence the battery intentional therefore liability for section 47 is established.   

More seriously, B may be liable for robbery.   Although robbery requires that force is used ‘before or in order to steal’, it has been held that appropriation is a continuing act thus force used immediately after theft in order to effect an escape and successfully complete the theft will suffice.  Accordingly, B’s blow to the guard in order to escape with the alcohol may give rise to liability for robbery.

Although A did not strike the guard, she may incur liability for section 47 and robbery as a result of B’s liability.  B committed these offences during a joint enterprise; those who embark upon a common plan are liable for the offences of others unless there is a sudden unexpected departure from the plan.   A and B agreed to steal property thus A may argue that she did not anticipate this would result in violence and that the original plan would not have resulted in any injury.  Her horrified reaction to production of the knife suggests that she was unaware of its presence but the injury was ultimately inflicted by the stolen bottle.  A’s liability will hinge upon whether she was aware that B was predisposed towards violence, possibly based upon knowledge of B’s reputation for brawling.

In conclusion, A will be liable for at least two counts of burglary arising from her own conduct and may incur further liability if B’s conduct was not an unexpected departure from the common plan.  B will be liable for burglary and theft as well as assault on the guard and robbery.

Case List

  • DPP v. Gomez [1993] AC 442
  • R v. Ghosh [1982] QB 1053
  • R v. Hale (1978) 68 Cr App R 415
  • R v. Holden [1991] Crim LR 478
  • R v. Jones and Smith [1976] 3 All ER 54
  • R v. Powell; R v. English [1997] 3 WLR 959
  • R v. Robinson [1977] Crim LR 173
  • R v. Savage [1992] 1 AC 699
  • R v. Uddin [1999] Crim LR 987
  • R v. Walkington [1979] 2 All ER 716
  • T v. DPP [2003] Crim LR 622


  • Allen, M., (2003) Textbook on Criminal Law, 7th ed., Oxford: Oxford University Pres
  • Clarkson, C.M.V. and Keating, H.M., (2003) Criminal Law: Text and Materials, 5th ed., London: Sweet & Maxwel
  • Herring, J., (2004) Criminal Law: Text, Cases and Materials, Oxford: Oxford University Press
  • Padfield, N., (2004) Criminal Law, 4th ed., Oxford: Clarendon Law Press
  • Smith, J.C., (2005) The Law of Theft, 8th ed., Oxford: Oxford University Press

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