Real property – Domestic burglary – Meaning of “dwelling” – Appellant being convicted of domestic burglary of house usually occupied by tenants – Property being unoccupied at time of burglary – Appellant appealing by way of case stated — Whether property constituting dwelling at time of burglary for purposes of section 9(3)(a) of Theft Act 1968 – Appeal dismissed
The owner of a property known as 28, Summer Croft, Newtown, Birmingham, rented it out to tenants, the last of whom left the property two days before a burglary occurred. The property was fully furnished in all rooms and equipped to be habitable. The gas, electricity and water utilities were all connected. The house was ready for new tenants, albeit they had not yet been identified.
The appellant and a co-accused were charged with burglary and they pleaded guilty to non-domestic burglary. That plea was not acceptable to the Crown which took the view that the offence was a domestic burglary carrying a maximum sentence of 14 years imprisonment instead of 10 years in any other case. The trial judge did not accept the appellant’s plea of guilty to non-domestic burglary, concluding that the building was a “dwelling” for the purposes of section 9(3)(a) of the Theft Act 1968 so that the burglary was a domestic one. In concluding that the property was not commercial, the judge took account of the fact that it had only very recently been unoccupied and was fully furnished with all amenities connected.
The appellant appealed by way of case stated. The questions for the court were whether: (i) the court had correctly ruled that the building was a dwelling for the purposes of section 9(3)(a), so that the appellant was guilty of a domestic burglary; (ii) the fact that tenants had moved out meant that the property stopped being a dwelling; and (iii) a rental property owned by a non-resident landlord as part of a commercial venture could be regarded as a dwelling when there were no tenants residing there.
Held: The appeal was dismissed.
(1) The paradigm case of a dwelling was one which was occupied by an owner or tenant and was thus someone’s home. It was that feature which attracted the particular gravity of dwelling-house burglary: it was an offence against the person as well as an offence against property, undermining a sense of security, violating privacy and causing disturbance and distress as well as economic loss. However, it did not follow that the policy or logic of dealing severely with burglary of a dwelling meant that a building, otherwise obviously a dwelling, ceased to be one for the purposes of section 9(3) at the moment it became unoccupied. Where a dwelling had become unoccupied, it was a question of fact and degree, not law, as to whether it had ceased to be a dwelling. That interpretation was supported by the authorities: R v Saw [2009] EWCA Crim 1 and R v Flack [2013] EWCA Crim 115 followed. R v Sticklen [2013] EWCA Crim 615 considered.
(2) In broad terms, the more habitable a building as a matter of fact, the more likely it was to be a “dwelling” within section 9(3)(a). However, words should not be read into that provision to the effect that the building had to be inhabited at the precise time of the burglary for it to be a dwelling. “Dwelling” was an ordinary English word; its meaning was a question of fact for the jury, magistrates or district judge. On the facts of the present case, the building had been occupied by a tenant until two days before the burglary. Until then, it was plainly a “dwelling” and not a commercial property. The judge was entitled so to conclude. A question of law would only arise for the High Court if the judge had given it a meaning which was unsustainable in law; which she had not.
(3) That conclusion avoided fine distinctions and the introduction into standard burglary cases of arguments as to tenancy status of the property in question and matters such as marketing efforts made to re-let the premises, whether a lease was being negotiated and whether a new tenant had begun to move possessions into the premises. There were many dwellings where there were frequent changes of occupancy and which would be vacant for short periods. The approach in this case left the risk on the burglar and was consistent with the broad view taken in other situations as to what constituted a “dwelling”. Furthermore, no unfairness was involved because the temporary vacancy of the premises could be reflected in arguments as to mitigation: R v Rodmell (unreported, 24 November 1994) and R v Massey [2001] EWCA Crim 531 followed.
Adrian Eissa (instructed by McGrath & Co, of Birmingham) appeared for the appellant; James Boyd (instructed by the Crown Prosecution Service (Appeals and Review Unit)) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Hudson v Crown Prosecution Service.
