Hudson v Crown Prosecution Service

The meaning of “dwelling” under section 9(3)(a) of the Theft Act 1968 is ordinarily a question of fact for the tribunal of fact. A building does not cease to be a dwelling merely because it is temporarily unoccupied. The relevant question is one of fact and degree, including the building’s habitability, furnishing, design and recent use as a residence. The building need not be inhabited at the precise time of the burglary. A recently vacated, furnished and habitable rental property may therefore remain a dwelling, even though no new tenant has been identified.

The appellant was convicted of dwelling-house burglary after the Birmingham Magistrates’ Court found that a rented property was a dwelling when burgled. The last tenant had left two days earlier. The property remained fully furnished, connected to utilities and ready for occupation by new tenants.

The appeal by way of case stated concerned whether the magistrates were entitled to reach that conclusion, whether a property necessarily ceases to be a dwelling when tenants leave, and whether a vacant rental property held as a commercial investment can constitute a dwelling.

1. Appeal dismissed. The magistrates were entitled to find that the property was a dwelling within section 9(3)(a) of the Theft Act 1968.
2. “Dwelling” is an ordinary English word. Its application is ordinarily a question of fact for the jury, magistrates or District Judge. A question of law arises only if the tribunal has given the word a meaning that is unsustainable in law.
3. The paradigm dwelling is someone’s home, and the seriousness of dwelling-house burglary reflects the invasion of privacy, security and personal space. That rationale does not require a building to remain a dwelling only while occupied. Once a dwelling becomes unoccupied, the issue is one of fact and degree.
4. The relevant circumstances may include the duration of the vacancy, whether the building is furnished and habitable, whether utilities remain connected, and whether it retains the character for which it was designed. The more habitable the building, other things being equal, the more likely it is to be a dwelling.
5. The court declined to read into section 9(3)(a) a requirement that the building be inhabited at the precise time of the burglary. The property had been occupied until shortly before the burglary, remained furnished and habitable, and had not changed its nature during the brief vacancy.
6. The questions were answered accordingly. A tenant’s departure does not necessarily end dwelling status, and a vacant rental property may or may not be a dwelling depending on the facts and degree. Mr Justice Ouseley agreed.

• High Court (Administrative Court): The appeal by way of case stated was dismissed. The court held that the magistrates were entitled to find that the property was a dwelling.
• Birmingham Magistrates’ Court: Deputy District Judge Monro found the property to be a dwelling for the purposes of section 9(3)(a) of the Theft Act 1968 and convicted the appellant of dwelling-house burglary.