Eletu & Anor, R. v

For aggravated burglary, an article is a weapon of offence only if it falls within the statutory definition. An ordinary knife, hammer or crowbar is not automatically such a weapon. Where it is not made or adapted to injure or incapacitate, the prosecution must prove an intention to use it for that purpose, including conditionally if necessary.

A participant who does not possess the article must be proved to know of it and to share the possessor’s relevant intention. The jury must receive clear and accurate directions on those central elements. Confused directions which obscure the statutory distinction and the time at which intent must exist can render convictions unsafe.

The appellants were convicted at Inner London Crown Court of aggravated burglary and sentenced to 11 years’ imprisonment. They admitted simple burglary but denied carrying weapons or, in Eletu’s case, knowing that others had them. The Crown alleged that they participated with others in a burglary of a Co-op store in which knives and a crowbar were present.

The appeal, brought with leave of the single judge, concerned whether the trial judge’s directions adequately defined a weapon of offence and identified when the appellants had to possess the necessary intention. The jury had specifically asked whether later discovery of weapons could establish aggravated burglary.

1. The appeals were allowed. The convictions for aggravated burglary were unsafe because the jury received confused and inadequate directions on a central issue.

2. Under Theft Act 1968, section 10(1)(b), a weapon of offence includes an article made or adapted to cause injury or incapacitation, or an article intended by its possessor for that use. In this case, the relevant question was whether the articles were intended for that use. A knife, hammer or crowbar was not automatically a weapon of offence merely because of its description.

3. For a participant not personally possessing an article, the prosecution had to prove both knowledge of the article and a shared intention that its possessor would use it to injure or incapacitate if necessary. Where the burglary was charged under section 9(1)(b), that intention fell to be assessed when the attempted theft occurred, rather than only at entry. The court applied R v Kelly [1993] 97 Cr App R 245 on that timing point.

4. The initial direction failed to define a weapon of offence. The purported correction introduced an irrelevant category of articles made or adapted for injury, made a false contrast between knives and crowbars, and did not clearly explain the shared-intention requirement. The response to the jury’s question about later knowledge added further confusion. A written route to verdict would likely have supplied the necessary focus and clarity.

5. A separate direction that an intention merely to frighten was insufficient was unnecessary. Unlike Kelly [1993] 97 Cr App R 245, no evidence or submission made an intention limited to frightening a live issue.

6. The convictions were quashed. A retrial was ordered on a fresh indictment containing aggravated burglary and the alternative offence of burglary, before a different judge.

• Court of Appeal (Criminal Division) — in [2018] EWCA Crim 599, allowed both appeals against conviction, quashed the convictions and ordered a retrial.

• Inner London Crown Court — convicted both appellants of aggravated burglary on 9 February 2017 and sentenced each to 11 years’ imprisonment.