Aggravated burglary

(1) A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive; and for this purpose—

(a) “firearm” includes an airgun or air pistol, and “imitation firearm” means anything which has the appearance of being a firearm, whether capable of being discharged or not; and

(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; and

(c) “explosive” means any article manufactured for the purpose of producing a practical effect by explosion, or intended by the person having it with him for that purpose.

(2) A person guilty of aggravated burglary shall on conviction on indictment be liable to imprisonment for life.

(1) 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; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

(2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm ... therein, and of doing unlawful damage to the building or anything therein.

(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) References in subsections (1) and (2) above to a building, and 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 as at times when he is.

Aggravated burglary is defined at section 10 TA 1968 as follows:

“A person is guilty of aggravated burglary if he commits any burglary and at the time has with him any firearm or imitation firearm, any weapon of offence, or any explosive”.

Evidence is required to establish one of the offences of burglary under section 9 TA 1968.

Where the same phrase has been used in other statutory offences, the courts have interpreted it to extend beyond physical carrying of the weapon. Relevant considerations include how immediately accessible the item is, how close it is, the context of any proposed criminal enterprise and the purpose of the legislation creating the offence. (R v Henderson [2017] 1 Cr App R 4 .)

Includes an airgun or air pistol: section 10(1)(a) TA 1968. Where a firearm or imitation firearm is carried this should form the subject of a separate charge. See the Firearms legal guidance.

Defined in section 10(1)(b) TA 1968 as “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.” Whilst this is similar to the definition used in the Prevention of Crime Act 1953 (PCA 1953) it differs by the inclusion of items made/adapted/intended to incapacitate.

In the case of R v Kelly (1993) 97 Cr App R 245 the Court of Appeal held that where the defendant used a screwdriver (which they had taken with them in order to break into a property) to assault the occupant who had surprised them during the burglary, the fact that it was used “in the heat of the moment” did not provide a defence to section 10 TA 1968. In this respect, the definition of what is a “weapon of offence” differs from that used in the PCA 1953. In the PCA 1953 an item which is not “per se” offensive does not become offensive simply because it is used offensively if the intention to use it that way was not formed until immediately before the use. Prosecutors who are considering a charge of aggravated burglary should be aware of the wider definition given to “weapon of offence” in R v Kelly.

The relevant time at which the defendant must have the weapon with them in order to be guilty of section 10 TA 1968 offence was clarified by the Court of Appeal in the case of R v O’Leary (1986) 82 Cr App R 341. The defendant armed themselves with a knife from within the house before attacking the occupants. The defendant was convicted of aggravated burglary and appealed. The wording of the indictment (“entered as a trespasser…and stole therein…”) made it clear that the burglary limb relied on was 9(1)(b) TA 1968. The Court of Appeal dismissed the appeal, finding that the relevant time was the commission of the act which completed the offence (in this case the theft). Had the defendant been charged with burglary based on 9(1)(a) TA 1968 then that offence would have been complete at the point of entry, and so subsequently arming themselves with a knife would not in that case have made them guilty of aggravated burglary.

See also R v Kelly, above.