Burglary & Related Offences

Elements

Burglary upholds the constitutional inviolability of the dwellinghouse. It has a longstanding common law basis.  A burglar may be met with force to repel or arrest a burglar.

A person is guilty of burglary if he or she enters a building or part of a building as a trespasser with intent to commit an arrestable offence or having entered a building as a trespasser commits or attempts to commit an offence. An arrestable offence is one with a maximum penalty of more than 5 years.

Burglary may arise where a person enters a building with the intent of committing a non-theft related offence.  This may, for example, include an assault or other offence with penalty of more than 5 years.

Burglary requires an intention to enter as a trespasser and an intention to commit an arrestable offence or having so entered, he commits such an offence. In the case of the first type of burglary where a building is entered as a trespasser with the intent to commit an arrestable offence, the relevant time is the time of entry.

In the case of the second type of burglary, where having entered a building as a trespasser a person commits or attempts to commit an arrestable offence, the relevant time is at the time the offence is committed.It is no defence to burglary to show that the defendant did not intend to steal unless he found particular objects or things, so that his intention was conditional.

The maximum penalty for burglary upon conviction on indictment is 14 years imprisonment or an unlimited fine or both.

Entry into Building

The slightest entry into a building is sufficient.  Indeed, the insertion of an instrument into a building for the purpose of an offence would be sufficient.  A partial entry may not be sufficient if it is ineffective.

A building includes any structure intended to be permanent or to endure for a time.  A building covers dwelling houses, shops and offices.  It need not necessarily be inhabited.  It is likely to cover outhouses and temporary structures including caravans, inhabited tents, mobile homes and mobile retail units.  A distinction may be drawn between motorised vehicles as such and vehicles that are connected to permanent facilities, such as electricity.

Burglary may be committed by entering into a part of a building in excess of or without consent.  The requisite intent must apply to that part.

Trespass and Intent

A trespass is an entry on land without invitation, consent or justification.  An entry with consent for a particular purpose would be deemed void and therefore unlawful if another purpose is undertaken or if the person exceeds the limits of consent.

As in other contexts, consent must be free and real.  A consent obtained by fraud, force or deception would not be free.  A consent may of necessity, be limited.  If a person exceeds the terms of the consent, e.g. by appropriating items, then the entry is a trespass notwithstanding that there may be ostensible or apparent consent.  If a person believes he has entered with consent he is not a trespasser.

If a person enters with consent but later breaches the terms of that consent he may not have entered the premises building as trespasser. However he may become a trespasser at that later time.

Intent

Burglary requires that the person has the intention to commit an arrestable offence when he enters the building or that having so entered he commits such an offence in it or attempts to so commit.

An arrestable offence is an offence fon which a person of full age who has not previously been convicted may be punished with imprisonment for a term of five years or more.  Formerly it was required that there be an intent to commit certain listed crimes.

The intent is the important factor.  For example, if it is impossible to commit the intended crime because for example, the victim is not there, burglary is nonetheless committed.

The second form of burglary requires proof that a person who entered as a trespasser committed or attempted to commit theft. Similarly, an intent to steal generally rather than a specific intent to steal particular items is sufficient.  The fact that stealing is impossible is irrelevant.

Aggravated burglary.

Aggravated burglary is burglary committed where the perpetrator has a firearm, imitation firearm, any weapon of offence or explosive. A weapon of offence is as defined above.  The maximum penalty is life imprisonment.

Firearm covers guns or other weapons from which bullets, shots, charges may be discharged crossbows, stun guns or other weapons for causing shock or disablement an imitation firearm is that which has the appearance of a firearm.

Weapons of offence include any article with a blade or sharp point, articles adopted for use for causing injury or incapacitating a person which or intended for such use or threatening such use or weapon of  any description for the discharge of noxious liquid, gas or other noxious things.

Explosives include anything which produces a practical effect by explosion or intended to have such effect.  In relation to aggravated burglary the defendant must be aware that he had the relevant article in his possession. It is not necessary that he intended to actually use it in the course of that burglary.

An explosive includes 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.

A firearm includes

• A lethal firearm or weapon from which any shot, bullet or missile can be discharged
• an airgun and air rifle, an air pistol or other weapon incorporating a barrel from which metal or other slugs can be discharged.
• a crossbow.
• any type of stun gun or other weapon causing shock or disablement to a person by means of electricity or energy transmission.

An offensive weapon includes an article that has a blade or sharp point.  It includes any article made or adapted for use for causing injury, for incapacitating a person or intended by the person having it with him or her for such use or for threatening such use or any weapon of whatever description designed for the discharge of any noxious liquid, noxious gas or another noxious thing.

Weapons of offence potentially include quite a wide category of items that may be used to cause harm or to incapacitate a person.

A person is liable on conviction on indictment for aggravated burglary to imprisonment for life.

Aggravated Trespass

It is a separate offence under the Criminal Justice Public Order Act to enter a building or the curtilage e of a building as a trespasser or be in the vicinity of the same for the purpose of trespassing in circumstances which give a reasonable inference that the entry or presence was with the intent to commit an offence or to unlawfully interfere with property.

The offence is subject on summary conviction to a fine up to €1,270 or to imprisonment for a term up to six months or both.

It is an offence to be on premises as a trespasser in possession of a knife, blade or similar pointed object or any offensive weapon.  The premises concerned are any building or part of building or land ancillary to a building. An offensive weapon is one made or adapted to cause injury or incapacitation or intended for such use.

It is an offence to enter a building as a trespasser or the vicinity of a building in circumstances which would give rise to a reasonable inference that the entry was for the purpose or intent of committing an offence or to unlawfully interfere with any property in the building. This does not require proof or intention on the part of the defendant.

It is an offence for a person without reasonable excuse to trespass on a building or the curtilage in such manner as is likely to cause fear in another person or in fact causes fear.  The Gardai may require the person to cease acting in a manner or leave the vicinity and leave their vicinity.  A failure to obey is also an offence.

Power of Gardai

A member of Garda Síochána who finds a person in a place to which the above relates and suspects with reasonable cause that such person is or has been acting in a manner contrary to this provision may direct that the person desists from acting in such manner and leave immediately the vicinity concerned in a peaceful and orderly manner.

It is an offence to fail to comply with the direction given without lawful authority or reasonable excuse.  The offence is subject on summary conviction to a fine up to €2m500 or imprisonment up to 12 months or both.  In the case of failure to comply with the direction of a member of Garda Síochána, the potential punishment is a fine up to €1000 and up to six months imprisonment or both.

Possession of Housebreaking Implements

It is an offence to possess certain articles with the intent that they may be used in the commission of an offence.  A person who other than at his place of residence is in possession of any article with the intention that it be used in the course of a theft or burglary, robbery, deception, obtaining services by fraud, blackmail, extortion, demanding with menaces or taking road vehicle without authority is guilty of an offence.

Separately it is an offence to possess without lawful authority or excuse an article made or adopted for use in effecting any of the offences.  This may apply even inside a person’s home. The offences cover house breaking implements and any other articles which may be used for the offences.  The maximum penalty is a fine or imprisonment of up to 5 years on indictment.  The court may order the disposal of the items concerned.

It is an offence where a person without lawful authority or reasonable excuse, is in possession of an article made or adapted for use in the course of or in connection with the commission of an offence of the above type. This offence may be committed if the person is at his home.

As with other offences of possession, physical custody alone is not enough. There must be some knowledge and intention to control the thing concerned.

The offence applies to any article.  Under the predecessor legislation, it was limited to housebreaking implements.  There is no limit to the type of articles that may be included.  For example, disguises, gloves, jemmies and tools for opening doors and windows may be included.

There must be an intention on the part of the accused to use the article in the course of, or in connection with one of the above types of offence.  It need not necessarily be intended for use by himself.

It need not be proved to be in connection with a specific burglary or test.  A general intention to use for any such purposes suffices.

It is a defence to prove that the person concerned was not in possession of the article for one of the purposes mentioned.  It is a defence to prove the article was not made or adapted for use in the course of or in connection with the commission of one of the above offences.

Where a person is convicted of an offence under the above provision the court may order that the tools be forfeited, destroyed or disposed of as the court may order.  The order takes effect on the expiry of the appeal period.

The penalty on conviction of indictment is imprisonment up to five years or a fine or both.

Bail

The Act provides that certain matters must be taken into account by a court in deciding whether to refuse bail in certain circumstances to provide for the imposition of consecutive sentences for certain offences committed in a dwelling.

Where the offence is under the Criminal Justice (Theft and Fraud Offences) are serious offences for the purpose of the bail legislation. The bail legislation permits the court to refuse bail to persons charged with serious offence where it is reasonably considered necessary to prevent the commission of another serious offence by the person.

The 2015 Act applies where the court is considering a bail application from an adult charged with a burglary or aggravated burglary offence. Final discretion to grant or refuse bail is left with the courts. However, the court in deciding whether it is considered reasonably necessary to refuse bail to prevent the commission of a series offence, where the offence is being committed in a dwelling, court must consider the existence of the below circumstances as evidence that the person is likely to commit an offence in a dwelling.

The provision sets out the circumstances. The circumstances concerned are when the accused person is convicted of a domestic burglary committed in the five years before the bail application and that person has been convicted of at least two domestic burglaries committed in the period starting six months before and ending six months after the alleged commission of the offence for which he is seeking bail or the person has been charged with at least two domestic burglaries, allegedly committed in the same period, or the person has been convicted of at least one domestic burglary committed and charge with at least one other domestic burglary allegedly committed in the same period.

This does not affect the operation of the children’s legislation which provides for non-disclosure of certain findings of guilt relating to offences committed by persons under 18 years of age.

Sentencing

A court which decides to impose a custodial sentence for multiple burglaries of dwelling may impose the sentences consecutively. The discretion of the court to decide or otherwise is not restricted. It is a matter for the sentencing court however where an adult is being sentenced for imprisonment for domestic burglary and was convicted of another domestic burglary committed in the five years before the offence and was sentenced to imprisonment for another domestic burglary committed in the period starting six months before or ending six months after the offence for which he was sentenced.

Any sentence of imprisonment which the court chooses to impose for the offence for which he is currently being sentenced, must be consecutive 20 sentences of imprisonment imposed for those prior domestic burglaries. This applies where the offence was committed after the Act comes into effect. It applies however, regardless of whether the previous acts were committed on, before or after that commencement of the Act.

The aggregate terms of imprisonment, for consecutive sentences imposed by the District Court, is two years. No restriction applies to the Circuit Court.