Why the legal definition matters
Everyday language treats any break-in as a burglary. The criminal law is narrower and more specific, and the details affect how a crime is charged and sentenced. This article covers England and Wales only, because section 9 of the Theft Act 1968 has a stated territorial extent of England and Wales. Scotland and Northern Ireland have separate legal systems and are outside its scope. It is general information, not legal advice.
The two ways burglary can be committed
Section 9(1) creates two routes to the offence. Under paragraph (a), a person commits burglary by entering a building, or part of a building, as a trespasser and with intent to commit one of the offences listed in section 9(2). Under paragraph (b), a person who has entered a building or part of a building as a trespasser then steals, or attempts to steal, anything in it, or inflicts or attempts to inflict grievous bodily harm on someone there.
The offences listed in section 9(2) are stealing anything in the building, inflicting grievous bodily harm on any person in it, and doing unlawful damage to the building or anything in it. The first route therefore does not require anything to be taken. Entering as a trespasser with the intention of stealing is enough for the offence to be complete, even if the intruder leaves empty-handed.
Entry, trespass and “part of a building”
Crown Prosecution Service (CPS) guidance for England and Wales says a partial entry is sufficient, so putting part of the body inside the building can count. It also says the defendant must be aware that they are trespassing, and that permission to enter one area of a building does not extend to areas that are off limits, such as a staff room.
The statute does not require force or a forced door. The legal question is whether the person entered as a trespasser and had the necessary intent, not whether a lock was defeated. Section 9(4) extends the offence to an inhabited vehicle or vessel, whether or not the person living in it is present at the time. The CPS guidance adds that an uninhabited vehicle does not qualify as a building.
What makes a building a dwelling
The distinction between a dwelling and any other building is significant because it changes the maximum penalty. On conviction on indictment, section 9(3) sets a maximum of 14 years’ imprisonment where the burglary involved a dwelling and 10 years for other buildings. The CPS says the dwelling status must be charged separately, so that it appears in the indictment.
The CPS guidance refers to the case of R v Hudson, which it summarises as saying that the more habitable a building is as a matter of fact, the more likely it is to be a dwelling. Each case turns on its facts. For sheds, outbuildings and similar structures the CPS advises caution about older, unreported decisions sometimes cited for the proposition that a garden shed or hotel room is a dwelling. The result depends on the evidence in each case.
Aggravated burglary
Section 10 of the Theft Act 1968 creates the more serious offence of aggravated burglary. It applies where a person commits burglary and, at the time, has with them a firearm or imitation firearm, a weapon of offence or an explosive. The Act defines a weapon of offence as any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with them for that use. The maximum penalty is imprisonment for life.
How courts sentence domestic burglary
For domestic burglary, the Sentencing Council guideline that has been in force since 1 July 2022 gives an offence range of a community order up to six years’ custody, within the statutory maximum of 14 years. Sentencers assess culpability (categories A to C) and harm (categories 1 to 3). Higher culpability includes targeting vulnerable victims, significant planning and carrying a weapon. Higher harm includes violence or serious threats, substantial injury, people being present, and substantial property loss or damage.
The most serious category, A1, has a starting point of three years’ custody with a range of two to six years. At the other end, category C3 has a starting point of a high community order, with a range from a low community order to six months’ custody. The guideline’s starting points are only the first step, and courts then adjust for aggravating and mitigating factors.
A separate statutory minimum applies to repeat offenders. Section 314 of the Sentencing Code requires an appropriate custodial sentence of at least three years for a third domestic burglary, unless there are exceptional circumstances that make it unjust. The CPS explains that for offences committed on or after 28 June 2022 the test is “exceptional circumstances”, whereas earlier offences were governed by a test of particular circumstances. The CPS also describes the provision as applying to adults convicted of a third domestic burglary, counting convictions after 30 November 1999.
What this means for householders
The legal definition reinforces why layers of protection matter at every point of entry, including outbuildings and integral garages, since the offence covers any building and any part of a building. The steps to take once a burglary has happened are covered in this site’s guides on what to do after a burglary.
The bottom line
In England and Wales, burglary is defined by section 9 of the Theft Act 1968: entering a building or part of a building as a trespasser with intent to steal, cause serious harm or damage, or committing such an offence after entering. Nothing has to be taken, and force is not an element. A dwelling carries a 14-year maximum against 10 years for other buildings, and carrying a weapon turns the offence into aggravated burglary with a maximum of life imprisonment. Sentencing follows a Sentencing Council guideline, with a three-year minimum for a third domestic burglary unless exceptional circumstances apply.