Chipunza v R.

A dwelling is an ordinary English word meaning a building or part of a building in which a person lives and makes their home. Whether accommodation is a dwelling is a question of fact and degree. A standard hotel room is not generally built as a dwelling: a room not checked into cannot be one, while long-term hotel accommodation used as a home, or staff living quarters, may qualify. For a hotel-room trial, the judge must give the jury the ordinary meaning and a balanced account of features pointing both ways. Transient occupation, a home elsewhere, lack of control over the room and access, hotel rules, and hotel-provided furnishings may point away from a dwelling. A direction focused only on how the occupier used the room, while omitting contrary features, can render the summing-up unfair and the conviction unsafe.

The appellant entered a standard hotel room while the guest was at work. She had checked in the previous evening and intended to stay for three nights, while retaining her home in Birmingham. He was charged under section 9(1)(a) of the Theft Act 1968 with burglary of a dwelling, with an alternative count alleging burglary of part of a building. His initial guilty plea to the alternative count was not accepted, and a jury convicted him of dwelling burglary by 11 votes to 1. The appeal concerned the meaning of dwelling and whether the judge’s directions and comments gave the jury a fair and balanced basis for deciding whether the hotel room was a dwelling.

1. Disposition. The appeal was allowed and the conviction on count 1 was quashed. The respondent did not seek a retrial, and the court agreed that a retrial was not in the interests of justice. The guilty plea to count 2 was vacated; that count was ordered to lie on the file without being proceeded with without leave, leave was given to proceed, and the case was returned to Inner London Crown Court for further listing.

2. Meaning of dwelling. The court held that dwelling is an ordinary word rather than a term of art. Applying Uratemp Ventures Limited v. Collins (Ap) [2001] UKHL 43, it means the place where a person lives and makes their home. Houses and flats are usual examples, but other buildings or parts of buildings may qualify. The absence of a person at the time of burglary does not necessarily prevent premises being a dwelling. Whether a building is a dwelling remains a question of fact and degree.

3. Hotel accommodation. Hotels generally provide temporary accommodation rather than dwellings. A standard room not checked into cannot be a dwelling, although long-term hotel accommodation used as a home, and rooms in which staff live, may be. Much depends on the configuration and arrangements. The guest’s transient three-night occupation, home elsewhere, use of different rooms and hotels, lack of control over the room and access, hotel rules, and lack of choice over furniture and décor were relevant features pointing away from a dwelling. The court corrected the misreading of R v Massey [2001] EWCA Crim 531 and noted that R v Crown Prosecution Service ex parte Hudson [2017] 2 Cr App R 21 (269) did not establish that hotel rooms generally are dwellings.

4. Jury directions. The judge could and should have explained the ordinary meaning of dwelling and identified features pointing towards and away from that classification. The direction under section 9(4) of the Theft Act 1968, concerning inhabited vehicles and vessels, was inexact and unhelpful where the issue concerned part of an existing hotel building. The judge focused on the guest’s use of the room and failed to give a balanced account of the features pointing against it being a dwelling. That omission rendered the summing-up unfair. The approach was consistent with the appellate review contemplated in R v Flack [2013] 2 Cr App R (S) 56 CA.

5. The court’s observations on the particular hotel-room factors were confined to the facts of this case. Home Office classification guidance did not determine the legal question, although its distinction between permanent residential hotel occupation and short-stay accommodation could assist a jury.

1. Court of Appeal (Criminal Division): Renewed application for permission granted. Appeal allowed, conviction on count 1 quashed, no retrial ordered, and count 2 remitted for further listing. [2021] EWCA Crim 597.
2. Crown Court at Inner London: Following a jury trial before HHJ Donne QC, the appellant was convicted of burglary of a dwelling by a majority of 11 to 1 and sentenced to a total of three years and two months’ imprisonment.