3rd Strike Burglar – ‘Third strike’ domestic burglary

A third domestic burglary (the so-called ‘third strike burglary’) is triable only on indictment where:

  • a person is convicted of a domestic burglary committed after 30th November 1999;
  • at the time when that burglary was committed, he was 18 or over and had been convicted in England and Wales of two other domestic burglaries; and
  • one of those other burglaries was committed after he had been convicted of the other, and both of them were committed after 30 November 1999.

To identify a ‘third strike’ it is necessary to establish five dates, plus the age of the suspect on commission of the third burglary. The five dates must be different and follow each other in chronological order:

  • commission of the first offence of burglary – must be after 30 November 1999. (‘Strike one’)
  • conviction for the first burglary
  • commission of the second burglary – must be after the date of conviction of the first burglary. (‘Strike two’)
  • conviction for the┬ásecond burglary
  • commission of the third burglary – must be after the date of conviction of the second burglary. (‘Strike three’)

The suspect must have been 18 or over at the date of commission of the third burglary, but not at the commission or conviction of the earlier burglaries.

The third or (subsequent) offence that triggers the provisions and also the previous convictions must be offences of burglary. R v Maguire [2003] 2 Cr. App. R. (S.) 10 CA makes it clear that an attempt does not trigger the provisions. A charge of attempted burglary is an offence under the Criminal Attempts Act 1981 not the Theft Act 1968. Furthermore, if the defendant was convicted of an attempt then by definition a burglary did not take place.

By similar reasoning other ‘inchoate’ convictions for conspiracy or incitement to burgle would not trigger the provisions. A conviction for conspiracy or incitement does not necessarily mean that the defendant took part in a burglary. The conviction for conspiracy or incitement relates to the participation in an agreement or encouragement of an offence not the commission of a substantive offence necessarily. If the defendant did participate it may be appropriate to include a count for the substantive offence on the indictment.

Where the provisions of section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 do apply, no proceedings in the magistrates’ court other than a sending to the Crown Court under section 51 Crime and Disorder Act 1998 are valid. The relevant charges can be dealt with only by being sent to the Crown Court.

If it is discovered that these provisions should have been applied, any conviction or sentence in the magistrates’ court or any committal for trial or committal for sentence to the Crown Court is void for lack of jurisdiction.

A magistrates’ court may set aside or vary its own decisions or orders to rectify mistakes, using section 142 of the Magistrates’ Courts Act 1980, if the Crown Court or High Court has not already done so. There is also authority for the magistrates’ court having the power at common law to rectify errors.

If a dwelling burglary is incorrectly treated as an indictable only offence under the provisions of sections 111 of the 2000 Act and section 51 of the Crime and Disorder Act 1998 the Crown Court has no jurisdiction to deal with it. In effect the case remains in the magistrates’ court. A Crown Court judge may, however, exercise the power provided by section 66 of the Courts Act 2003 to sit as a District Judge. Plea before venue may then be dealt with and the appropriate venue determined. The judge may then deal with the case either summarily within the powers of the magistrates’ court or adjourn and remand for committal in due course.

If an indictable only burglary is committed for sentence by the magistrates’ court instead of being sent for trial, a Crown Court judge may similarly use the powers under section 66 of the Courts Act 2003 to rectify the mistake.

Sentence

Statutory maximum

The maximum sentence for burglary of a building other than a dwelling is 10 years’ imprisonment on indictment. The maximum for burglary of a dwelling is 14 years. The maximum sentence for aggravated burglary is imprisonment for life.

Mandatory minimum

A conviction for a ‘third strike’ domestic burglary makes a defendant aged 18 or over liable to a minimum sentence of 3 years, in accordance with sections 111(1) and (2) of the Powers of Criminal Courts (Sentencing) Act 2000. The court must impose a sentence of at least 3 years in custody, unless it is of the opinion that there are particular circumstances in relation to the offence or the offender that would make it unjust to do so.