Law report: Aggravated burglary required entry with a weapon

Law REPORT: 17 DECEMBER 1997

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

Start your day with The Independent, sign up for daily news emails
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksNow available in paperback
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Business Support Administrator - Part Time

Negotiable: Recruitment Genius: This is an opportunity to join the South West'...

Recruitment Genius: Business Development Executive - OTE £40,000

£25000 - £40000 per annum: Recruitment Genius: An expanding business based in ...

Recruitment Genius: Field Sales - Business Broker - Scotland

£35000 - £40000 per annum: Recruitment Genius: As an award winning and leading...

Recruitment Genius: Field Sales - Business Broker - North East Region

£35000 - £40000 per annum: Recruitment Genius: As an award winning and leading...

Day In a Page

Homeless Veterans appeal: 'You look for someone who's an inspiration and try to be like them'

Homeless Veterans appeal

In 2010, Sgt Gary Jamieson stepped on an IED in Afghanistan and lost his legs and an arm. He reveals what, and who, helped him to make a remarkable recovery
Could cannabis oil reverse the effects of cancer?

Could cannabis oil reverse effects of cancer?

As a film following six patients receiving the controversial treatment is released, Kate Hilpern uncovers a very slippery issue
The Interview movie review: You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here

The Interview movie review

You can't see Seth Rogen and James Franco's Kim Jong Un assassination film, but you can read about it here
Serial mania has propelled podcasts into the cultural mainstream

How podcasts became mainstream

People have consumed gripping armchair investigation Serial with a relish typically reserved for box-set binges
Jesus Christ has become an unlikely pin-up for hipster marketing companies

Jesus Christ has become an unlikely pin-up

Kevin Lee Light, aka "Jesus", is the newest client of creative agency Mother while rival agency Anomaly has launched Sexy Jesus, depicting the Messiah in a series of Athena-style poses
Rosetta space mission voted most important scientific breakthrough of 2014

A memorable year for science – if not for mice

The most important scientific breakthroughs of 2014
Christmas cocktails to make you merry: From eggnog to Brown Betty and Rum Bumpo

Christmas cocktails to make you merry

Mulled wine is an essential seasonal treat. But now drinkers are rediscovering other traditional festive tipples. Angela Clutton raises a glass to Christmas cocktails
5 best activity trackers

Fitness technology: 5 best activity trackers

Up the ante in your regimen and change the habits of a lifetime with this wearable tech
Paul Scholes column: It's a little-known fact, but I have played one of the seven dwarves

Paul Scholes column

It's a little-known fact, but I have played one of the seven dwarves
Fifa's travelling circus once again steals limelight from real stars

Fifa's travelling circus once again steals limelight from real stars

Club World Cup kicked into the long grass by the continued farce surrounding Blatter, Garcia, Russia and Qatar
Frank Warren column: 2014 – boxing is back and winning new fans

Frank Warren: Boxing is back and winning new fans

2014 proves it's now one of sport's biggest hitters again
Jeb Bush vs Hillary Clinton: The power dynamics of the two first families

Jeb Bush vs Hillary Clinton

Karen Tumulty explores the power dynamics of the two first families
Stockholm is rivalling Silicon Valley with a hotbed of technology start-ups

Stockholm is rivalling Silicon Valley

The Swedish capital is home to two of the most popular video games in the world, as well as thousands of technology start-ups worth hundreds of millions of pounds – and it's all happened since 2009
Did Japanese workers really get their symbols mixed up and display Santa on a crucifix?

Crucified Santa: Urban myth refuses to die

The story goes that Japanese store workers created a life-size effigy of a smiling "Father Kurisumasu" attached to a facsimile of Our Lord's final instrument of torture
Jennifer Saunders and Kate Moss join David Walliams on set for TV adaptation of The Boy in the Dress

The Boy in the Dress: On set with the stars

Walliams' story about a boy who goes to school in a dress will be shown this Christmas