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Royal Courts of Justice

The Strand

London WC2

Thursday 27th November 1997

B E F O R E :

LORD JUSTICE MANTELL

MR JUSTICE HOOPER

and

THE RECORDER OF SHEFFIELD

(HIS HONOUR JUDGE MICHAEL WALKER)

(Acting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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KENNEDY FRANCIS KLASS

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR JC BARKER appeared on behalf of the Appellant

MISS C FARR appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Thursday 27th November 1997

MR JUSTICE HOOPER: On 16th January 1997, in the Crown Court at Chelmsford, before Mr Recorder Parkins QC, the appellant was convicted of aggravated burglary. He appeals against his conviction by leave of the single judge.

Mr Scarlett lived alone in a caravan situated behind a petrol station in Margaretting, Essex. On Sunday 18th February 1996 he went to bed shortly before 10 pm. Minutes later he heard voices and then a knock at the door. Someone said, "We're from London. We're stranded. We want some help to get back to London." Mr Scarlett told the callers that he could not help them and suggested that they try the public house. After further conversation, they said "Okay" and then left.

Half an hour later he heard the sound of his window breaking, and a voice said, "There he is". Mr Scarlett got out of bed and saw outside a tall man, smartly dressed, with fair hair. We shall call that man number 2. He was not the appellant. Mr Scarlett stepped out of the caravan after the door had been wrenched open. He saw that number 2 had a piece of pole in his hand. He said to Mr Scarlett, "Give us some money and you will not get hurt". The pole was between 8" and 2' long. Mr Scarlett told him that he did not have any money and he did not keep it in the caravan. Number 2 then smashed him over the head with the pole. It was pitch black at the time, but Mr Scarlett saw lights in a forecourt about 40 yards away and ran towards them. The man followed him and repeatedly struck him with the pole from top to toe. It was only this man, number 2, who ran after him.

By the time he reached the lights, Mr Scarlett was covered in blood and his T-shirt was ripped. He fell to the ground and his attacker ran back to the caravan. He was taken to hospital with bruising all over his body and arms. He received 14 stitches to two lacerations on his scalp. On his return to the caravan, he discovered there were two jackets missing, one of which contained a Barclaycard and a pair of glasses. Mr Scarlett was adamant that there was more than one burglar, since the man who had chased him was not the same man who had said, "There he is".

Several hours later, at about 2.45 am, a police officer went to an address in Ingatestone and saw a Vauxhall Nova parked on a driveway. Two men were lying across the front seats. One of those two men was the appellant and the other was a man whom the appellant was to call Paul. Paul was not the second man, the man whom we have described as number 2. The appellant was arrested for attempted theft of the vehicle and, on being cautioned, replied, when asked about the burglary, "I was not even around that area". However, the appellant's fingerprints were found on a worktop in the caravan.

In interview the appellant admitted being outside the caravan. He and the man he called Paul and another person, who he was not prepared to identify, had been in a stolen car and were looking for petrol in order to return to London. One of them suggested that they rob a caravan. He told the police that he was surprised when one of them -- and that must have been number 2 -- pulled a bar out. He said this:

"He just hit him once on the head with the pole and the man just tried to carry on and run. He hit him again and hit him on the side and hit him again, and then he chucked the pole at him. Then, like, he kicked the man. Then I walked over to the pole and picked the pole up and I slung it across the field out of the way so he wouldn't pick it up again. Then he goes 'Grab him, grab him', but I didn't really want to grab the man, and then, like, I stood in front of him and I touched him, and like as I touched him I felt all the blood and that, but where it was dark I could not see that he was bleeding. So, like, as I touched him, I felt all the blood, and it's all on my jeans, and I looked at it, and then the man started running. So I looked round and walked back towards the caravan, and that was that, and I just started running across the fields with Paul."

He denied having entered the caravan. Given the presence of his fingerprint, that was clearly a lie. It must follow that, having come close to the man in the way that he described, the appellant went back to the caravan and committed the burglary.

The appellant himself did not give evidence and none was called on his behalf.

Although a number of grounds of appeal were raised, this appeal now only raises one question of law: can the offence of aggravated burglary be committed if the weapon is not being carried by the burglar or one of the burglars who enters the building? If not, given the Recorder's directions to the jury, the appeal must succeed.

Section 9(1)(a) of the Theft Act provides:

"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."

One of the offences mentioned in subsection (2) is the offence of "stealing anything in the building or part of the building in question".

Section 10 provides:

"A person is guilty of aggravated burglary if he commits any burglary and at the time has with him ... any weapon of offence...;

and for this purpose--

(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."

To commit the offence the person must have a weapon of offence with him at the time of entry (see R v O'Leary (1986) 82 Cr App R 341).

Assistance as to the meaning of the words "had with him" can be found in the decision of R v Kelt (1977) 65 Cr App R 74. In the offence of aggravated burglary, the words will normally mean "carrying" (see page 78).

As the learned judge pointed out, there was no evidence that the pole ever entered the caravan. The pole was used to break the window. That was not, on the facts of this case, however, an "entry" within the meaning of that word in section 9(1) of the Theft Act.

Although section 10 refers to the person having with him a weapon of offence, there can be no doubt that the offence of aggravated burglary may be committed by a person who does not have the weapon if he is aiding and abetting the person with him.

We turn to the question which we posed. Let us assume that there is only one weapon and that that weapon is with the person on the outside. That person commits a burglary (the words used in section 10) if he is aiding and abetting the burglary being committed by the person effecting entry. A strict interpretation of section 10 would therefore lead to the conclusion that both could be convicted of aggravated burglary. However, the gravamen of this offence is entry into the building with a weapon. The purpose of the section is to deter people from taking weapons into buildings whilst committing burglary. The fact that a getaway driver has a weapon with him in the car would not, in our judgment, be sufficient to turn an offence of burglary into one of aggravated burglary. Although there are certain academic attractions in the strict interpretation, we prefer a purposive approach.

We should add that there were additional difficulties in this case: none of the intruders may have had the pole with them at the time of entry into the house by those who entered.

In those circumstances, the conviction for aggravated burglary must be quashed, and this Court substitutes for that conviction, relying on section 3 of the Criminal Appeal Act 1968, a conviction for burglary. Mr Barker, who appears for the appellant, did not seek to submit that this Court could not make such a substitution.

(Submissions re: sentence followed.)

MR JUSTICE HOOPER: We now turn to the question of sentence.

The appellant was sentenced to three years' detention in a young offender institution, the learned Recorder relying upon the provisions of section 53(2) of the Children and Young Persons Act 1933. By virtue of section 3(2) of the Criminal Appeal Act 1968, this Court has power to pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of a greater gravity. We have not heard full argument about how that subsection should be construed when, as here, an appellant was of the age of 17 or under at the time of conviction but is now over 17.

It is submitted on his behalf that he had always offered a plea of guilty to burglary. In our judgment, having regard to that fact and having regard to the sentence passed by the Recorder which we must now accept as the appropriate sentence for the offence of aggravated burglary, the proper sentence is one of two years' detention in a young offender institution. The sentence of two years' detention in a young offender institution shall take effect as if that was the sentence that had been passed by the Recorder on 19th February 1997.