England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [1985] Crim LR 212, [1985] EWCA Crim 3

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		BAILII Citation Number: [1985] EWCA Crim 3
		Case No.: 3341/B2/84

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice,

18th January 1985

B e f o r e :

LORD JUSTICE WATKINS MR. JUSTICE PETER PAIN
and
SIR JOHN THOMPSON
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	R E G I N A
	-v-
	VINCENT EDWARD PATRICK BROWN

____________________

(Transcript of the Shorthand Notes of Marten Walsh Cherer Limited,
Pemberton House, East Harding Street, London EC4A 3AS.
Telephone Number: 01 - 583 7635. Shorthand Writers to the Court.)

____________________

MR. P. RICHARDSON appeared on behalf of the Appellant. MR. A. FRENCH appeared on behalf of the Crown.
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HTML VERSION OF JUDGMENT
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(As approved by the Judge)

LORD JUSTICE WATKINS: On 18th May 1984 the appellant, now 24 years of age, in the Crown Court at Luton, before his Honour Judge Colston and a jury, was convicted of two offences of burglary and sentenced by a fine of £50 upon each count. He was ordered to pay compensation of £80.97. He appeals against conviction by leave of Mr. Justice Park who, in giving leave, observed:

"There was undisputed evidence of entry; the question was left as an issue of fact to the jury. Your case was that you were not a party to the burglary and your defence was rejected. However, since you raise a question of law, I am not able to refuse leave to appeal."

The facts, which were vital to the proper consideration by the jury of the offence of burglary, were that 40 minutes or so after midnight on 27th November 1983 Mr. McLean, who lives in Watford Way, Hendon, when he was in his living-room heard from without the sound of breaking glass. He looked out and on the other side of the road observed at a shop known as "Argos" two men. The first of them was a man called Peerless. He pleaded guilty to the two offences of burglary I have mentioned. The second of them was alleged to be the appellant. A short while later Mr. McLean saw a third man. He was never apprehended. The second man, the appellant, was, so said Mr. McLean, partially inside the shop front display. The top half of him was inside and he was rummaging about. Mr. McLean said: "I assumed his feet were on the ground." He was partly obscured by one of the other men. Mr. McLean asked the lady who was with him to dial 999, and she did so. He spoke on the telephone to someone for a few minutes and then he again looked across the road. He then saw that the first of the men he had seen had a large black briefcase and that two men, the appellant included, were putting property into it. They then walked off, the third man hurrying on ahead of them towards Hendon Central Station. The two men paused by the doorway of a firm called Seth & Co. The second man then walked up the road for 30 or 40 yards. He went into a taxi-cab office, then into a fast food shop and then returned to the original scene which had been witnessed by Mr. McLean. The third man then put in a reappearance on the other side of the road, that is to say on the same side as Mr. McLean's house. He crossed to the central reservation where the first man gave him his briefcase. Finally, Peerless and the appellant returned again to the shop window of Argos. They were, so Mr. McLean thought from his observations, moving stuff inside the shop front display. Then it was that the police made their appearance on the scene having been called there by the telephone message to which I have already referred.

The appellant was arrested on the spot. He claimed that he had been with Peerless all night and denied the allegation then made, that he had been stealing from the shop known as Argos.

In the course of burglary by Count 1 of the indictment the appellant and Peerless were charged with stealing a briefcase and a gentleman's travel set and by Count 2 with the theft of an electric razor. This was found on Peerless after he was arrested. The prosecution's case in part was that the two men had taken these goods from the window display of Argos upon the two separate occasions already mentioned.

In the course of the trial the appellant stated, when giving evidence, that he had been with Peerless and others that evening, first of all in the public house and then in a Chinese restaurant. When they left the restaurant he went on his own to a taxi-cab office. That office was very busy. He waited for five or ten minutes. He rejoined Peerless who was some distance away and quite by chance near the window of Argos. Shortly after that they were arrested. He had not taken anything. He did not notice that the window was broken. He was not the second man. He asserted that Mr. McLean must have been totally confused in his observations and in his identification of him as the second man who went to the taxi-cab office. He also pointed to the fact that at that time he had a beard and Mr. McLean made no reference to that in his evidence. Here was, we think, an absurd attempt by this man to deny that he had not been a party to at least theft.

Mr. Richardson, who appeared for him at the trial and who represents him here, realistically conceded that even if we were to allow this appeal against conviction we would have no alternative but to substitute for the verdict of the jury verdicts of guilty of theft upon both counts on the indictment.

However, Mr. Richardson contends that there was a misdirection by the Judge upon one of the ingredients of the offence of burglary. The passage in the summing-up of which complaint is made appears at page 4 of the transcript. It reads in this way: "Burglary, as I have told you, is an aggravated form of theft.

A person is guilty of burglary, for the purposes of this case, if, having entered any building, or part of a building, as a trespasser, he steals anything in the building. So the Prosecution have got to prove, in order to establish against a given individual a count of burglary, the following things: First, that there was an entry into the building. That of course is a question of fact for you, but you may think that to put a hand, or an arm, or the upper part of your body through a broken shop window, is plainly an entry into that shop. It has next got to be proved by the Prosecution that the entry was as a trespasser. It has not been, and you may think on the evidence of this case it could not be argued that there is any real dispute about that."

Section 9(1) of the Theft Act 1968, so far as material, provides: "(1) A person is guilty of burglary if (a) he enters any building.....as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below....." and that, I should add for the sake of completeness, includes the offence of theft.

Mr. Richardson contends that there can be no offence committed under the provisions of section 9(1) unless the person, accused of burglary, is found upon the facts to have been at the relevant time wholly within the building. It is insufficient, he says, for conviction that any part of the body of the accused be without the building at that time. He maintains that one cannot look at the old law of burglary and convictions therefore which, so far as the issue of entry was concerned, were held to be properly based upon such simple facts as the insertion of a hand or even a finger into some aperture, no matter how created, in the curtilage of, for example, a dwelling-house. It is impermissible to look at the old law in indeavouring to construe the provisions of section 9(1).

For that contention Mr. Robertson relies upon words used by Lord Justice Lawton in R. v. Dawson (1977) 64 Cr.App.R. at 170. "He" -- that is counsel in that case — "sought before this Court to refer to the old authorities." The section in issue there was section 8(1) of the Theft Act. "He was discouraged from doing so because this Court is of the opinion that in these cases what judges should now direct their attention to is the words of the statute. This has been said in a number of cases since the Theft Act 1968.

"The object of that Act was to get rid of all the old technicalities of the law of larceny and to put the law into simple language which juries would understand and which they themselves would use."

We are content to accept that advice for the purpose of this case, although whether it is impermissible in all circumstances to look back at the old law with regard to the Theft Act we are inclined to doubt.

Next it is submitted that the man in the street, the bystander, Mr. McLean for example, if asked the question, having observed what he did, whether the first or the second man or both had entered the building, would inevitably say, "Of course he did not." We do not accept that for a moment. The reasonably well-informed bystander observing such conduct would, we think, come to a quite contrary conclusion, the more especially if it was his own shop or dwelling which was under attack in that way. I have already stated that the main proposition is that there can be no entry for the purpose of section 9(1) unless the whole of the body of the person accused of entering is within the building. We simply cannot agree that that is the right way to construe the word "enter" within its context in this subsection.

Mr. Richardson also prays in aid what was said by this court in the case of R. v. Parkin (1951) 34 Cr.App.R. 1. That was a case in which the court had to construe section 28(4) of the Larceny Act 1916. So, what he wants us to do now is indeed to look at the old law. That subsection, so far as relevant, reads: "Every person who shall be found by night.....(4) in any building with intent to commit any felony therein; shall be guilty of a misdemeanour.....". The facts which the court had to consider were that the appellant was found by night halfway up some piping at the side of a building. He was seen by a police officer to have one of his hands through a window for the purpose of pulling himself inside.

Mr. Justice Lynskey, in giving the judgment of the court, said: "We have to construe this sub-section according to its clear words." He repeated the words of the subsection and went on: "The question is what do those words 'be found in any building mean? One has to apply the ordinary English meaning, unless the context requires one to give them some unusual meaning. The ordinary meaning of the English words as applied to the circumstances of this case is that the appellant was not found in the building but was found outside the building, trying to get into it." It would be very surprising, so it seems to us, if that court had come to any different conclusion having regard to the precise words of subsection (4) which, I repeat, for essential purposes were "be found in any building". One can easily appreciate that in order to be found in any building you would have to be totally within it. Those are not the words, however, which appear in the subsection which is now for us to construe.

We were invited, to enable us properly to discharge that task, to regard closely the judgment of Lord Justice Edmund Davies in the well-known case of R. v. Collins (1972) 56 Cr.App.R. at 554. As the learned Lord Justice said at the outset of the judgment, that was an extraordinary case. The charge was burglary with intent to commit rape. The defence to the charge by the appellant was that he was halfway through the bedroom window of the complainant's bedroom when she saw him and beckoned him in. From that moment he regarded himself as invited to be familiar, to have intercourse even, with that girl. It is unnecessary to explore the facts any further. The finding of the court was that there could not be a conviction under section 9(1) unless the person entering did so knowing that he was a trespasser and nevertheless deliberately entered, or at the very least was reckless as to whether he was entering the premises of another without that person's consent.

We are urged to deduce from that that there can be no entry unless the body of the accused is wholly within the building. Lord Justice Edmund Davies, at page 562, having referred to the way in which the Judge in that case directed the jury, went on to say:

"If she in fact appeared to be welcoming him, the Crown do not suggest that he should have realised or even suspected that she was so behaving because, despite the moonlight, she thought he was someone else. Unless the jury were entirely satisfied that the appellant made an effective and substantial entry into the bedroom without the complainant doing or saying anything to cause him to believe that she was consenting to his entering it, he ought not to be convicted of the offence charged. The point is a narrow one, as narrow maybe as the window sill which is crucial to this case."

Mr. Richardson argues that in that passage the Lord Justice was making it plain beyond a peradventure that no person can be convicted of burglary under section 9(1) unless at the relevant time he was found wholly within the building. We disagree with that argument. We see nothing in any part of the judgment to support it. The court in that case was directing its mind to the vital question which appears at the end of the judgment, namely whether the appellant entered the premises as a trespasser, that is to say, knowing perfectly well that he had no invitation to enter, or reckless as to whether or not his entry was with permission.

That judgment was not about what is in issue here, namely, what can constitute an entry, in given circumstances, for the purposes of the subsection. In our judgment the word "substantial" does not materially assist in arriving at a conclusion as to whether or not there has been an entry.

It is otherwise, however, with the word "effective" and we see much force in the proposition that a jury should be directed that there should be an effective entry before a conviction can be made under this subsection.

It must not be overlooked, of course, that the offence cannot be committed unless the entry has been made by one who was a trespasser. It seems to us to be an astounding proposition that a person can go along the street, break a shop window, put his hand within and steal goods and not be held to have entered the shop as a trespasser. As we see it, it is a question of fact for the jury as to whether or not there has been an entry for the purpose of section 9(1). The Judge, although he did not in terms use the word "effective", in his direction to the jury helped them as well as any jury could properly be assisted having regard to the facts of the case. We find that his illustrations as what could amount to an entry are wholly appropriate, that is to say that having broken a window, to put a hand, an arm or the upper part of a body through a broken shop window is capable of being found to be an entry.

It is unnecessary to say more than that according to the facts of the case the jury must be left to decide, directed in the ways in which we have suggested, as to whether or not there has been an entry. There was clearly in this case an entry as a trespasser. The jury properly so found and were adequately and suitably directed for that purpose. The appeal is therefore dismissed.

MR. FRENCH: My Lord, may the prosecution have their costs from central funds?

LORD JUSTICE WATKINS: Yes.