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Criminal law - aggravated burglary' - whether the offence can be committed if the weapon is not being carried by the burglar or one of the burglars entering the building -Theft Act 1968, s.1O.

R. V. Klass 162 JP 105; The Times, 17 December 1997.Court of Appeal


The Statute

Section 9(l)(a) of the Theft Act provides:

"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 subs.(2) below."

One of the offences mentioned in subs.(2) is the offence of "stealing anything in the building or part of the building in question".

Section 10 provides:

"A person is guilty of aggravated burglary if he commits any burglary and at the time has with him ... any weapon of offence...; and for this purpose -

(b)'weapon of offence' means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use."


The question of law raised on appeal.


Can the offence of aggravated burglary be committed if the weapon was not being carried by the burglar or one of the burglars who entered the building?

In the Crown Court Klass was convicted of aggravated burglary.


The Facts

Mr Scarlett lived alone in a caravan situated behind a petrol station He went to bed shortly before 10 pm. Minutes later he heard voices and then a knock at the door Someone said, "We're from London. We're stranded. We want some help to get back to London." Mr Scarlett told the callers that he could not help them and suggested that they try the public house. After further conversation, they said "Okay" and then left.

Half an hour later he heard the sound of his window breaking, and a voice said, "There he is". Mr Scarlett got out of bed and saw outside a tall man, smartly dressed, with fair hair (Man Number 2). He was not Klass. Mr Scarlett stepped out of the caravan after the door had been wrenched open. He saw that Number 2 had a piece of pole in his hand. He said to Mr Scarlett, "Give us some money and you will not get hurt".Mr Scarlett told him that he did not have any money and he did not keep it in the caravan. Number 2 then smashed him over the head with the pole. It was pitch black at the time, but Mr Scarlett saw lights in a forecourt about 40 yards away and ran towards them. The man followed him and repeatedly struck him with the pole from top to toe. It was only this man, Number 2, who ran after him.

By the time he reached the lights, Mr Scarlett was covered in blood. He fell to the ground and his attacker ran back to the caravan. He was taken to hospital with bruising all over his body and arms. He received 14 stitches to two lacerations on his scalp. On his return to the caravan, he discovered there were two jackets missing, one of which contained a Barclaycard and a pair of glasses. Mr Scarlett was adamant that there was more than one burglar, since the man who had chased him was not the same man who had said, "There he is".

Several hours later, at about 2.45 am. a police officer went to an address and saw a Vauxhall Nova parked on a driveway. Two men were lying across the front seats. One of those two men was Klass and the other was a man whom Klass was to call Paul. Paul was not the second man, the man whom we have described as Number 2. Klass was arrested for attempted theft of the vehicle and, on being cautioned, replied, when asked about the burglary, "I was not even around that area". However, Klass's fingerprints were found on a worktop in the caravan.

In interview Klass admitted being outside the caravan. He and the man he called Paul and another person, whom he was not prepared to identify, had been in a stolen car and were looking for petrol in order to return to London. One of them suggested that they rob a caravan. He told the police that he was surprised when one of them - and that must have been Number 2 - pulled a bar out. He said this:

"He just hit him once on the head with the pole and the man just tried to carry on and run. He hit him again and hit him on the side and hit him again, and then he chucked the pole at him. Then, like, he kicked the man. Then I walked over to the pole and picked the pole up and I slung it across the field out of the way so he wouldn't pick it up again. Then he goes 'Grab him, grab him', but I didn't really want to grab the man, and then, like, I stood in front of him and I touched him, and like as I touched him I felt all the blood and that, but where it was dark I could not see that he was bleeding. So, like, as I touched him, I felt all the blood, and it's all on my jeans, and I looked at it, and then the man started running. So I looked round and walked back towards the caravan, and that was that, and I just started running across the fields with Paul."

He denied having entered the caravan. Given the presence of his fingerprint, that was clearly a lie. It must follow that, having come close to the man in the way that he described, Klass went back to the caravan and committed the burglary.

Klass himself did not give evidence and none was called on his behalf.


The Law

Only one question of law is germane: can the offence of aggravated burglary be committed if the weapon is not being carried by the burglar or one of the burglars who enters the building? If not, the appeal must succeed.

To commit the offence the person must have a weapon of offence with him at the time of entry (see R. v 0'Leary (1986) 82 Cr. App. R 341).

Assistance as to the meaning of the words "had with him" can be found in the decision of R. v. Kelt (1977) 65 Cr. App. R 74. In the offence of aggravated burglary, the words will normally mean "carrying".

The Judge pointed out, there was no evidence that the pole ever entered the caravan. The pole was used to break the window. That was not, on the facts of this case, however an 'entry" within the meaning of that word in s.9( I) of the Theft Act.

Although s.10 refers to the person having with him a weapon of offence, there can be no doubt that the offence of aggravated burglary may be committed by a person who does not have the weapon if he is aiding and abetting the person with him.

Let us assume that there is only one weapon and that that weapon is with the person on the outside. That person commits a burglary (the words used in s.10) if he is aiding and abetting the burglary being committed by the person effecting entry. A strict interpretation of s.10 would therefore lead to the conclusion that both could be convicted of aggravated burglary. However, the gravamen of this offence is entry into the building with a weapon. The purpose of the section is to deter people from taking weapons into buildings whilst committing burglary. The fact that a getaway driver has a weapon with him in the car would not, be sufficient to turn an offence of burglary into one of aggravated burglary.

Although there are certain academic attractions in the strict interpretation, we prefer a purposive approach.

There were additional difficulties in this case: none of the intruders may have had the pole with them at the time of entry into the house by those who entered.


The Decision

To commit the offence of aggravated burglary contrary to s.10 of the Theft Act 1968 a person must have a weapon of offence with him at the time of entry. The offence was not committed if the weapon was being carried by a person who did not enter the building. The conviction for aggravated burglary would be quashed and a conviction for burglary substituted.


Comment

It is also worth considering another case. In R V Kelly, (1992) The Times, December 2 the Court considered the relevant time of intent in aggravated burglary.

Kelly had used a large screwdriver to break into a house, in which he was handling a video recorder when confronted by the occupier and a woman. Kelly produced the screwdriver from his trouser pocket and, in

order to enforce compliance with his orders to unplug the video recorder and hand over the remote control, he prodded the occupier in the stomach with it

He left the house with the screwdriver and video recorder in his hands when he was arrested. He pleaded guilty to burglary but was convicted of aggravated burglary.

The only issue on appeal was whether, for the offence charged to be established, the prosecution had established that Kelly had the weapon with him with intent to cause injury before the occasion to use the weapon had arisen.

The relevant time at which the prosecution had to prove that Kelly had an offensive weapon with him was when he actually stole.

The screwdriver became an offensive weapon on proof that he intended to use it for causing injury to, or incapacitating, the occupier or the woman at the time of the theft, thereby aggravating the burglary.


The Decision

Held that when determining whether a charge of aggravated burglary under section 10(1) of the Theft Act 1968 was committed by use of an offensive weapon, the relevant time for consideration was when the theft actually occurred.


Other cases discussed.

It is not necessary to prove the intention to use the [weapon] to cause injury etc. during the course of the burglary.

In R V Stones [1989] 1 WLR 156 the court said, "It is not necessary to prove the intention to use the [weapon] to cause injury etc. during the course of the burglary.. . . The mischief at which the section is clearly aimed is that if a burglar has a weapon which he intends to use to injure some person unconnected with the premises burgled he may nevertheless be tempted to use it if challenged during the course of the burglary and put under sufficient pressure."

S.1 Prevention of Crime Act 1953, is concerned with the possession of offensive weapons. The two provisions are not identical since the phrase "incapacitating a person" does not appear in s.1 of the 1953 Act, but some assistance may be procured from the cases concerned with possession of offensive weapons. The defence of lawful authority or reasonable excuse for the possession of an offensive weapon does not appear to apply to aggravated burglary.


Relevant Time

The time a person must have a weapon of offence (or other relevant article) with him depends upon the form of aggravated burglary with which he is charged. As we have seen now with Klass the person with the weapon must be one of the burglars rather than someone who remained on the outside of the building:

In O’Leary (1986) 82 Cr. App. R 341, the facts were:-

O’Leary had confronted the householders of a building which he had entered as a trespasser and demanded their cash and jewellery, which was the theft, and at the time he still had a kitchen knife in his hand which he had obtained downstairs in the same house.

The Court said, ". . . the time at which the defendant must be proved to have had with him a weapon of offence to make him guilty of aggravated burglary was the time at which he actually stole. . . ."

The judge ruled, namely that the material time in this charge for the possession of the weapon was the time when he confronted the householders and stole.

See also Kelly (1992), supra.

A conviction under s. 9(1)(a) could not have been upheld in O’Leary because it would have been necessary to prove an intention to steal at the time of entry and possession of the weapon of offence at that time. This follows from the decision of the Court of Appeal in Francis [1982] Crim LR 363.


Has with Him

Since the decision in Stones [1989] supra,, it has been unclear whether the prosecution must prove that the accused knew he had a weapon of offence with him or knew he had something with him which was, in fact, a weapon of offence. However, since proof of intent to injure is necessary where the weapon is not offensive per se, knowledge of possession must be vital. There is a requirement for a degree of immediate control (Kelt [1977] 1 WLR 1365 and Pawlicki [1992] 1 WLR 827.


Rob Jerrard