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Law report: Aggravated burglary required entry with a weapon

Where, in the course of a burglary, one of the burglars was carrying a weapon but he did not enter the building with it, the offence of aggravated burglary contrary to section 10 of the Theft Act 1968 was not committed.

Regina v Klass; Court of Appeal (Criminal Division) (Lord Justice Mantell, Mr Justice Hooper and Judge Michael Walker) 27 November 1997

The Court of Appeal allowed the appeal of Kennedy Francis Klass against his conviction on 16 January 1997 at Chelmsford Crown Court of aggravated burglary, but substituted a conviction of burglary pursuant to section 3 of the Criminal Appeal Act 1968.

The appellant was one of three men who burgled a caravan. The window of the caravan was broken, and when the occupant stepped outside he saw a man, who was not the appellant, with a piece of pole in his hand. The victim told the man he did not have any money, and the man smashed him over the head with the pole. The victim ran away and the man followed him and repeatedly struck him with the pole.

On his return to the caravan, the victim discovered that various items were missing. Several hours later the appellant was arrested in connection with another matter. He initially denied involvement in the burglary, but his fingerprints were found inside the caravan. He eventually admitted having been present outside the caravan, and said that one of his companions had suggested the burglary. He had, however, been surprised when one of them had pulled out the pole.

John C. Barker (Registrar of Criminal Appeals) for the appellant; Susannah Farr (Crown Prosecution Service, Chelmsford) for the Crown.

Mr Justice Hooper said that the appeal raised one question of law: whether the offence of aggravated burglary could be committed if the weapon was not being carried by the burglar or one of the burglars who entered the building. Section 9(1)(a) of the Theft Act 1968 provided:

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.

One of the offences mentioned in subsection (2) was the offence of "stealing anything in the building or part of the building in question". Section 10 of the Act provided:

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.

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

There was no evidence that the pole had ever entered the caravan. It had been used to break the window, but that was not, on the facts of the case, an "entry" within the meaning of the word in section 9(1) of the Act.

Assuming that there was only one weapon and that that weapon was with the person on the outside of the building, that person committed a burglary if he was aiding and abetting the burglary being committed by the person effecting entry. A strict interpretation of section 10 would therefore lead to the conclusion that both could be convicted of aggravated burglary.

The gravamen of the offence of aggravated burglary was, however, entry into the building with a weapon. The purpose of section 10 was to deter people from taking weapons into buildings and other people's houses while committing burglary. Although there were certain academic attractions in the strict approach to the interpretation of the section, a purposive approach was to be preferred. The conviction for aggravated burglary would be quashed, but a conviction of burglary would be substituted, pursuant to section 3 of the Criminal Appeal Act 1968.

- Kate O'Hanlon, Barrister