See also: burglary (history)

Criminal law
Part of the common law series
Criminal elements
Actus reus · Causation · Concurrence
Mens rea · Intention · Recklessness
Criminal negligence · Ignorantia juris…
Strict, Corporate & Vicarious liability
Crimes against people
Assault · Battery · Robbery
Sexual offences · Pimping · Rape
Kidnapping · Manslaughter · Murder
Crimes against property
Property damage · Arson
Theft · Burglary · Deception
Crimes against justice
Obstruction of justice · Bribery
Perjury · Malfeasance in office
Inchoate offenses
Attempt
Conspiracy · Accessory
Criminal defenses
Automatism, Intoxication & Mistake
Insanity · Diminished responsibility
Duress · Necessity
Provocation · Self defence
Other areas of the common law
Contract law · Tort law · Property law
Wills and trusts · Evidence
Portals: Law · Criminal justice

Burglary (also called breaking and entering^[1] and sometimes housebreaking^[2]) is a crime the essence of which is entry into a building for the purposes of committing an offence. The original Common law definition of burglary consisted of six specific elements "breaking and entering the dwelling of another during the night with the intention to The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive Actus reus, sometimes called the external element or the objective element of a crime is the Latin term for the "guilty act" which when proved Causation is the "causal relationship between conduct and result In Western Jurisprudence, concurrence, (or contemporaneity or simultaneity) is the apparent need to prove the simultaneous occurrence In Criminal law, mens rea the Latin term for "guilty mind" is usually one of the necessary elements of a Crime. In the Criminal law, intention is one of the three general classes of Mens rea necessary to constitute a conventional as opposed to In the Criminal law, recklessness (also called unchariness) is one of the four possible classes of mental state constituting Mens rea (the In the Criminal law, criminal negligence is one of the three general classes of Mens rea ( Latin for "guilty mind" element required Ignorantia juris non excusat or Ignorantia legis neminem excusat ( Latin for " Ignorance of the Law does not excuse" In Criminal law, strict liability is liability for which Mens rea ( Latin for "guilty mind" does not have to be proven in relation In the Criminal law, corporate liability determines the extent to which a Corporation as a fictitious person can be liable for the acts and omissions The legal principle of vicarious liability applies to hold one person liable for the actions of another when engaged in some form of joint or collective activity In Criminal law, an offence against the person usually refers to a crime which is committed by direct physical harm or force being applied to another person Assault is a Crime of Violence against another person. In some Jurisdictions including Australia and New Zealand, Battery is a term used by the Common law jurisdictions which involves an Injury or other Contact upon the Person of another in a manner likely Robbery is the Crime of seizing Property through Violence or Intimidation. A pimp (also called fleshmonger) finds and manages clients for Prostitutes and engages them in Prostitution (in Brothels in most cases and Rape, also referred to as Sexual assault, is an Assault by a person involving Sexual intercourse with or Sexual penetration of another person In Criminal law, kidnapping is the taking away or Asportation of a person against the person's will usually to hold the person in False imprisonment Manslaughter is a legal term for the killing of a human being in a manner considered by law as less culpable than Murder. Murder is the unlawful killing of another human person with Malice aforethought, as defined in Common Law countries Property damage (or in the United Kingdom, criminal damage) is damage to or the destruction of public or private Property, caused either by a In Criminal law, theft (also known as stealing or filching) is the illegal taking of another person's Property without that person's freely-given In English law, the main deception offences are defined in the Theft Act 1968 (TA68 the Theft Act 1978 and the Theft (Amendment Act 1996 The crime of obstruction of justice includes crimes committed by Judges Prosecutors attorneys general, and elected officials in general Bribery, a form of pecuniary corruption is an act usually implying money or gift given that alters the behaviour of the recipient in ways not consistent with the duties of that person Perjury, also known as forswearing, is the act of lying or making verifiably false statements on a material matter under Oath or Affirmation in a Malfeasance in office, or official misconduct, is the commission of an Unlawful act done in an official capacity which affects the performance of official duties Attempt crimes are crimes where the defendant's actions have the form of the actual enaction of the crime itself the actions must go beyond mere preparation In the Criminal law, a conspiracy is an agreement between Natural persons to break the law at some time in the future and in some cases with at least one overt act An accessory is a person who assists in the commission of a Crime, but who does not actually participate in the commission of the crime as a joint principal For a more detailed discussion of individual topics see Automatism (case law In the Criminal Law, automatism is a defense to liability Intoxication is the state of being affected by one or more psychoactive drugs. A mistake of fact may sometimes offer exculpation (as in Excuse) by allowing a criminal Defendant some relief from liability for having broken the In Criminal trials the insanity defenses are possible defenses by Excuse, an Affirmative defense by which Defendants argue that In Criminal law, diminished responsibility (or diminished capacity) is a potential defense by Excuse by which Defendants argue that For English law on the criminal defence see Duress in English law. In Criminal law, necessity may be either a possible justification or an exculpation for breaking the Law. Also see Provocation in English law. In Criminal law, provocation is a possible defense by excuse or exculpation The right of self-defense (also called alter ego defense, defense of others, defense of a third person) is the right for civilians acting on their A contract is an exchange of promises between two or more parties to do or refrain from doing an act which is enforceable in a court of law Tort law is the name given to a body of law that creates and provides remedies for civil wrongs that do not arise out of Contractual duties Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions In Common law, a will or testament is a document by which a person (the Testator) regulates the rights of others over his or her Property The law of trusts and estates is generally considered the body of Law which governs the management of personal affairs and the Disposition of Property of The Law of evidence governs the use of Testimony (eg oral or written statements such as an Affidavit) and exhibits (e In the sociological field, crime is the breach of a rule or Law for which some governing authority or force may ultimately prescribe a Punishment Usually that offence will be theft, but most jurisdictions specify others which fall within the ambit of burglary. In Criminal law, theft (also known as stealing or filching) is the illegal taking of another person's Property without that person's freely-given Commission of burglary is normally referred to as to burgle (in British English) or burglarize (in American English). British English or UK English ( BrE, BE, en-GB) is the broad term used to distinguish the forms of the English language used in the Phonology North American English regional phonology In many ways compared to English English, North American English is conservative in its Phonology.

Common law definition

The common law definition of burglary was described by Sir Matthew Hale as

1. Breaking- this could be either actual, such as by forcing a door, or constructive, such as by fraud or threats^[3]
2. Entering- this can encompass either physical entry by a person or the insertion of some implement with which to remove property, but not one solely used for gaining entry^[3]
3. House- this included a temporarily unoccupied dwelling but not a building only occasionally used as a habitation^[3]
4. Night time- defined as being between half an hour before sunset and half an hour after sunrise^[3]
5. Intent- most serious offences were classed as felony when this definition was prevalent, and included larceny, an alternative name for theft. In Common law legal systems a felony is a serious Crime, often contrasted with a Misdemeanor. In the United States, larceny is a Common law Crime involving Theft. In Criminal law, theft (also known as stealing or filching) is the illegal taking of another person's Property without that person's freely-given ^[3] This precludes licit break-ins whose intent cannot be for the commission of any crime, such as a forced entry to rescue a person from danger or to exercise a lawful arrest.

The common law elements serve as a basic template, but individual jurisdictions occasionally alter them and they may vary slightly from state to state within federal jurisdictions. This definition has been greatly expanded in most jurisdictions, so that the building need not be a dwelling or even a building in the conventional sense, physical breaking need not occur, the entry no longer need be at night, and the intent may be to commit any felony or theft.

United States

Burglary is prosecuted as a felony or misdemeanor,^[6] 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. In Common law legal systems a felony is a serious Crime, often contrasted with a Misdemeanor. A misdemeanor, or misdemeanour, in many common law legal systems is a "lesser" criminal act Trespass (Fr trespas a crime properly a stepping across from Lat In Criminal law, theft (also known as stealing or filching) is the illegal taking of another person's Property without that person's freely-given Intent in Law is the planning and desire to perform an act, to fail to do so (i Vandalism is the behaviour attributed to the Vandals in respect of Culture: ruthless Destruction or spoiling of anything beautiful or Venerable 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. In Criminal law, kidnapping is the taking away or Asportation of a person against the person's will usually to hold the person in False imprisonment Identity theft is a term used to refer to Fraud that involves stealing money or getting other benefits by pretending to be someone else The Watergate scandals were a series of Political scandals during the presidency of Richard Nixon that resulted in the Indictment of several of Nixon's 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". In the United States, larceny is a Common law Crime involving Theft. However, in Kentucky only unlawful presence and an intent to commit a crime are required. ^[7]

The Commonwealth of Massachusetts formally uses the term "breaking and entering" as well as "burglary". The Commonwealth of Massachusetts ( is a state located in the New England region of the northeastern United States. ^[8]

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. New Hampshire ( is a state in the New England region of the northeastern United States of America. "^[9]

Under New York penal law, burglary is always a felony, even in third degree. New York ( is a state in the Mid-Atlantic and Northeastern regions of the United States and is the nation's third most populous In the most general sense penal is the body of laws that are enforced by the State in its own name and impose penalties for their violation as opposed to civil law that seeks ^[10] It is more serious if the perpetrator uses what appears to be a dangerous weapon, or if he or she eneters a dwelling. ^{[11] [12]}

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. California ( is a US state on the West Coast of the United States, along the Pacific Ocean. 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. Twilight is the time before Sunrise, called Dawn, and the time after Sunset, called Dusk.

England and Wales

Burglary 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". R v Collins 1973 QB 100 is a case decided by the Court of Appeal of England and Wales which examined the meaning of "enters as a Trespasser quot in 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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters A sidewalk (chiefly North American English) pavement ( British English and Philadelphia dialect) footpath ( Australian English The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Appellate Committee of the House of Lords above 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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters 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. ^[14] 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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters A cash register is a mechanical or electronic device for calculating and recording sales transactions and an attached Cash drawer for storing Currency. 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,^[15] 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. Trespass (Fr trespas a crime properly a stepping across from Lat 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. ^{[16] [17]} 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. ^[18]

Mens Rea

R v Collins is authority for the proposition that the defendant must at least be reckless as to whether his entry is a trespass. R v Collins 1973 QB 100 is a case decided by the Court of Appeal of England and Wales which examined the meaning of "enters as a Trespasser quot in 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 Sentence

The maximum penalty for burglary is 14 years imprisonment if committed in a dwelling and 10 years otherwise. ^[14] Section 4 of the Crime (Sentences) Act 1997 specifies a minimum 3 year prison sentence for third-time domestic burglary unless exceptional circumstances apply. ^[19] 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^[20]

Aggravated burglary

Under section 10, aggravated burglary is committed when a burglar enters and "at the time has with him a firearm^[21], imitation firearm^[22], weapon of offence^[23], or any explosive^[24]". Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters

"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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters 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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters 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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters 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 Rea

It 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. Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters 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). Case citation is the system used in many countries to identify the decisions in past Court cases either in special series of books called reporters

Trial and Sentence

Aggravated burglary carries a maximum sentence of life imprisonment and is therefore triable only on indictment. Life imprisonment or life incarceration is a sentence of imprisonment for a serious crime often for most In the Common law legal system an indictment (ɪnˈdaɪtmənt (in-DITE-mint is a formal accusation of having committed a criminal offense

Scotland

Under Scots law in Scotland the crime of burglary is called theft by housebreaking. Scots law is a unique legal system with an ancient basis in Roman law. Scotland ( Gaelic: Alba) is a Country in northwest Europethat occupies the northern third of the island of Great Britain. It does not include any other aspect of burglary. Housebreaking when combined with other crimes is considered acquisitive crime. In the sociological field, crime is the breach of a rule or Law for which some governing authority or force may ultimately prescribe a Punishment It is a crime usually prosecuted under solemn procedure. In the Common law legal system an indictment (ɪnˈdaɪtmənt (in-DITE-mint is a formal accusation of having committed a criminal offense

Canada

Burglars Tools Found in the Bank, printed in 1875 in the Canadian Illustrated News

In Canada, burglary is labeled as "Breaking and Entering" under section 348 of the Criminal Code and is a hybrid offence. The Canadian Illustrated News was a weekly Canadian illustrated Magazine published in Montreal from 1869 to 1883. A Criminal Code is a compilation of government Laws that outline a nation's laws regarding criminal offenses and the maximum and minimum punishments that Courts A hybrid offence, dual offence, Crown option offence, dual procedure offence, or wobbler are the special class offences in the Common law Breaking and entering is defined as trespassing with intent to commit an indictable offence. Trespass (Fr trespas a crime properly a stepping across from Lat In many Common law Jurisdictions (eg the United Kingdom, Republic of Ireland, Canada, United States, India,

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

See also

• R v Collins
• Trespass

External links

• Apartment security for tenants
• California Penal Code Section 459 - Burglary
• Massachusetts General Laws - Crimes Against Property
• The Chula Vista Residential Burglary Reduction Project