Hudson v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Mr Justice Ouseley |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] EWHC 841 (Admin) |
| Docket Number | Case No: CO/1511/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 April 2017 |
[2017] EWHC 841 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Ouseley
Case No: CO/1511/2016
Adrian Eissa (instructed by McGrath & Co. Solicitors) for the Appellant
James Boyd (instructed by Crown Prosecution Service (Appeals and Review Unit)) for the Respondent
Hearing dates: 25 January, 2017
Approved Judgment
INTRODUCTION
This is an appeal by way of case stated from the decision of Deputy District Judge Monro, sitting in the Birmingham Magistrates' Court on the 11 th September, 2015, determining that the building in question ("the building") was a "dwelling" for the purposes of s.9(3)(a) of the Theft Act 1968 ("the Act").
The essential question for this Court was whether the Judge was entitled to reach this conclusion.
The facts appear from the Case Stated by the Judge ("the Case"). The Appellant and a co-accused were charged with burglary contrary to s.9(1)(a) of the Act. On the 11 th September, 2015, the matter came before the Judge for trial. The Appellant and the co-accused had pleaded guilty to "non-domestic" burglary. That plea was not acceptable to the Crown.
As appears from para. 4 of the Case, the Judge found the following facts:
"a) Sang Ngyen was the owner of 28 Summer Croft, Newtown, Birmingham. He rented out the property to tenants. The last tenant left the property on 3 rd May 2015.
b) A burglary occurred at this property on 5 th May 2015. The Appellant….and the co-accused…were responsible for committing the burglary.
c) The property was fully furnished in all rooms and equipped to be habitable. The utilities – gas, electricity and water were connected and the house was ready for new tenants to move in albeit at this stage new tenants had not been identified."
The Judge concluded (at para. 7 of the Case) that she was sure that the building was a dwelling and therefore that the Appellant and co-accused were guilty of a domestic burglary. As she put it:
"In coming to my decision I took account of the fact that the property had only very recently been unoccupied before it was burgled; that the property was a fully furnished property with all amenities connected. I did not consider it to be a commercial property."
The following questions ("the Questions") were stated for the opinion of the High Court:
"a) Was the Court correct in ruling that …[the building]…was a dwelling on 5 th May 2015 for the purposes of Section 9(3)(a) of …[the Act]…and therefore the Appellant was guilty of a dwelling house burglary?
b) Does the fact that tenants have moved out of a property mean that the property stops being a dwelling for the purpose of Section 9(3)(a) of ….[the Act]?
c) Is a rental property owned by a non-resident Landlord, where there are no tenants in situ to be regarded as a dwelling for the purposes of Section 9(3)(a) of ….[the Act]…when being used by the Landlord, not as his home but as part of a commercial venture?"
Ss. 9(3) and 9(4) of the Act provide as follows:
"(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) ….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 at times when he is."
THE RIVAL CASES
We were most grateful to Mr Eissa, who appeared for the Appellant and Mr Boyd, who appeared for the Respondent, for their extremely helpful submissions.
Mr Eissa's submission was that the question was one of fact which the Judge had answered in a manner unsustainable in law. Alternatively, this Court should give guidance as to the law. On the facts found in the Case, the building was not the home of anyone at the time. The particular evil of domestic or dwelling burglary was the invasion of someone's home. To be a dwelling it had to be someone's home at the time; whether premises were properly to be regarded as a dwelling was a question of fact, the answer to which depended on whether the property was lived in, inhabited or otherwise occupied in the broadest sense. It thus included a family away from home on a holiday. But it did not include the building here. The property here was a "buy to let" property intended for the rental market. Had the owner been unsuccessful in finding a new tenant at an acceptable rent, he may have chosen to keep it unoccupied or to sell it. In any event, until or such time as the property was occupied it was not a dwelling within the meaning of the Act.
Mr Boyd submitted that "dwelling" was an ordinary English word; its meaning was a question of fact for the jury, magistrates or District Judge – not one of law for the Court. A question of law would only arise for this Court if no tribunal of fact acquainted with the ordinary use of language could reasonably have concluded on the facts of the Case that the property in question constituted a "dwelling". The Oxford English Dictionary definition of "dwelling" was "a house or other place of residence". This was in contrast to buildings which were not places of residence, such as commercial properties. As a matter of ordinary language, the word "dwelling" was capable of including not only a building dwelt in but also a building constructed or designed for dwelling in, although it may at the relevant time be vacant or even not fit or ready for occupation. A more restrictive construction connoting only those buildings occupied or inhabited at the time they were burgled would subvert the policy designed to deter offenders from targeting a building or part of a building used, constructed or designed to be used, for human habitation. Here, the Judge was entitled to reach the conclusion to which she came. The building was ready and equipped to be lived in; it was fully furnished and connected to all utilities. If there was a question of law here, then "dwelling" should be judicially defined in accordance with these submissions.
DISCUSSION
(1) The legal framework: Prior to the Act, at common law and under the Larceny Acts, only a "dwelling" could be burgled. The Act created a unified burglary offence, in the sense that it applies both to dwellings and buildings which are not dwellings: see, ss.9(3)(a) and (b), set out above.
There are, however, two noteworthy distinctions between burglary of a dwelling and burglary of a building which is not a dwelling. First, the maximum sentence is different; 14 years in the case of burglary of a dwelling and 10 years in any other case. Secondly, s.111 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"), contains the "three strikes" provision requiring a (presumptive) minimum custodial period of three years where an offender aged 18 or over is convicted of a third "domestic burglary" in the circumstances there set out. In turn, "domestic burglary" is defined by s.111(5) of the 2000 Act as "…a burglary committed in respect of a building, or part of a building, which is a dwelling."
Despite these differences between burglary of a dwelling and burglary of other buildings, the only definition in the Act is that found in s.9(4), set out above. For my part, to the extent that s.9(4) assists at all, it supports the Respondent's case: for a vehicle or vessel to constitute a dwelling, each needs to be "inhabited". The legislature thus knew how to state the requirement of "habitation" when it wished to do so and, with respect, the good sense of doing so in the case of a vehicle or vessel is readily apparent. By contrast, there is no statutory requirement that a building or part of a building which is a dwelling must be "inhabited".
Such limited authority as there is, supports the meaning of "dwelling" being a question of fact – not law. In R v Flack [2013] EWCA Crim 115; [2013] 2 Cr App R (S), in an appeal against sentence...
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