Chamber and committees

Scottish Government submission of 30 September 2021

PE1898/A - Make entering someone’s home without their permission or warrant a crime

The Scottish Government recognises how important it is to feel safe and secure in your own home and community.

In light of the issues raised by Ms Gow in her petition, it might be helpful to the Committee if I set out some relevant laws which may apply where someone enter another person’s dwelling without consent.

While entering someone’s home without their permission is not a crime in and of itself, housebreaking with intent to steal is an aggravated form of the common law offence of theft in Scots law. The essential elements of this crime are that a person (1) overcomes the security of the premises and (2) does so with the intention of stealing. The housebreaking must be with the intention of stealing, not for some other purpose, such as finding a place to sleep.

Housebreaking involves overcoming the security of any premises, not just dwelling houses. Examples are by forcing a door, smashing a window, or picking a lock. Violent entry or damaging the building isn’t necessary. The security of a premises can also be overcome by using an unexpected means of entry like climbing up a drainpipe to an upstairs window, or using a stolen key or a skeleton key.

Whether or not a crime has been committed is a matter for Police Scotland to investigate in the first instance. Where the police consider there may be sufficient evidence to support that a crime has been committed, they will report the matter to the Crown Office and Procurator Fiscal Service (COPFS), who will determine what action, if any, should be taken in the public interest. Police Scotland and COPFS are both independent of the Scottish Government.

While decisions in relevant cases are for independent law enforcement agencies within the overall legal framework, it is understood that other common law and other statutory offences may also be used depending on the individual facts and circumstances of each case.

For example, section 57 of the Civic Government (Scotland) Act 1982 criminalises any person who, without lawful authority to be there, is found in or on a building or other premises, whether enclosed or not, or in its curtilage or in a vehicle or vessel so that, in all the circumstances, it may reasonably be inferred that the person intended to commit theft there.

Another offence that may be relevant in circumstances where the property of another person has been damaged is the common law offence of malicious mischief. This offence criminalises the wilful destruction or damage to the property of another.

Section 52 of the Criminal Law (Consolidation) (Scotland) Act 1995 (the statutory offence of vandalism) provides it is an offence for a person to, without reasonable excuse, wilfully or recklessly destroy or damage any property belonging to another.

Depending on the exact facts and circumstances, there may also be other relevant laws that operate. The offences mentioned in this letter are not intended to be an exhaustive list of all relevant offences.

Within this context, I hope this is helpful information in understanding how existing criminal laws may be relevant in the circumstances of the issues raised in the Petition.