QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OUSELEY
| EUGENE HUDSON
|- and -
|CROWN PROSECUTION SERVICE
James Boyd (instructed by Crown Prosecution Service (Appeals and Review Unit)) for the Respondent
Hearing dates: 25 January, 2017
Crown Copyright ©
Lord Justice Gross :
" a) Sang Ngyen was the owner of 28 Summer Croft, Newtown, Birmingham. He rented out the property to tenants. The last tenant left the property on 3rd May 2015.
b) A burglary occurred at this property on 5th May 2015. The Appellant….and the co-accused…were responsible for committing the burglary.
c) The property was fully furnished in all rooms and equipped to be habitable. The utilities – gas, electricity and water were connected and the house was ready for new tenants to move in albeit at this stage new tenants had not been identified. "
" In coming to my decision I took account of the fact that the property had only very recently been unoccupied before it was burgled; that the property was a fully furnished property with all amenities connected. I did not consider it to be a commercial property."
" a) Was the Court correct in ruling that …[the building]…was a dwelling on 5th May 2015 for the purposes of Section 9(3)(a) of …[the Act]…and therefore the Appellant was guilty of a dwelling house burglary?
b) Does the fact that tenants have moved out of a property mean that the property stops being a dwelling for the purpose of Section 9(3)(a) of ….[the Act]?
c) Is a rental property owned by a non-resident Landlord, where there are no tenants in situ to be regarded as a dwelling for the purposes of Section 9(3)(a) of ….[the Act]…when being used by the Landlord, not as his home but as part of a commercial venture? "
" (3) A person guilty of burglary shall on conviction on indictment be liable to imprisonment for a term not exceeding –
(a) where the offence was committed in respect of a building or part of a building which is a dwelling, fourteen years;
(b) in any other case, ten years.
(4) ….the reference in subsection (3) above to a building which is a dwelling, shall apply also to an inhabited vehicle or vessel, and shall apply to any such vehicle or vessel at times when the person having a habitation in it is not there as well at times when he is. "
THE RIVAL CASES
" ….We have been invited to give guidance as to how the issue of whether a property is a dwelling-house should be approached, when and where and if it is in dispute. This is not a suitable case in which to do that. In an appropriate case, it would be a matter for a jury to determine and the directions given by the judge could, if appropriate, be considered by this Court. It is however largely a question of fact in each individual case which the jury would have to decide."
" In our judgment, the justification for treating a dwelling as being different from other properties (and the judge mentioned a shed or a factory) is the very fact that it is someone's home, occupied, with personal and sentimental property within it. It is for that reason that higher sentences are required, and for that reason that statutory minimum sentences have been deemed appropriate. Those factors do not apply here: there were no occupants, there were no personal objects, this was not someone's home with personal space being violated – indeed, no new tenant or purchaser had yet been identified. The premises were not only unoccupied, they had been empty for many months and were bare and unfurnished. With the greatest respect to the learned judge, we do not see any justification for his observation that this was a 'technicality' resulting from renovations making the premises temporarily not to be regarded as a dwelling."
i) First, it avoids fine distinctions and the introduction into standard burglary cases of arguments of some nicety as to the tenancy status of the property in question. For example, there is no need to inquire in a case such as this as to the marketing efforts made to re-let the premises; whether a lease is under negotiation or has been agreed; whether a new tenant has begun to move his/her possessions into the premises and, if so, to what extent. Nor should it be thought that such cases would otherwise be rare. There are many "dwellings" where there is a change of occupancy at frequent intervals, so that there will, very frequently if not invariably, be short periods where the properties are vacant or unoccupied.
ii) Secondly, the approach to which I am attracted leaves the risk on the burglar. On the face of it, the Appellant was burgling a dwelling; that is what it would have looked like to him and the policy of the law is and ought to be to deter the targeting of residential and apparently residential properties.
iii) Thirdly, this approach is consistent with the broad view taken in other situations as to what constitutes a "dwelling" – by way of examples, a garden shed (R v Rodmell, unreported, 24 November, 1994) and a hotel room (R v Massey  EWCA Crim 531;  2 Cr App R (S) 80).
iv) Fourthly, no unfairness is involved. At least in cases other than those where s.111 of the 2000 Act is applicable (in which case the defendant will already have committed two domestic burglaries), the fact that the premises are temporarily vacant can be reflected in arguments as to mitigation.
ANSWERING THE QUESTIONS
i) Question a): Was the Court correct in ruling that …[the building]…was a dwelling on 5th May 2015 for the purposes of Section 9(3)(a) of …[the Act]…and therefore the Appellant was guilty of a dwelling house burglary?
Answer: The Judge was entitled to rule as she did. The Appellant was guilty under s.9(3)(a) of the Act of burglary of a dwelling.
ii) Question b): Does the fact that tenants have moved out of a property mean that the property stops being a dwelling for the purpose of Section 9(3)(a) of the Act?
Answer: Not necessarily. This is a question of fact and degree for the tribunal of fact.
iii) Question c): Is a rental property owned by a non-residential Landlord where there are no tenants in situ to be regarded as a dwelling for the purposes of Section 9(3)(a) of ….[the Act]…when being used by the Landlord, not as his home but as part of a commercial venture?
Answer: It depends. As with Question b), this is a question of fact and degree for the tribunal of fact.
Mr Justice Ouseley: