The defendant entered a hotel room in a London hotel. The hotel guest had checked in the previous evening and had gone to work. The housekeeping staff were cleaning the room. The defendant walked in unchallenged and rang reception to ask for someone to come up and open the safe. The manager went upstairs, into the room, and opened the safe which had nothing in it. When the manager went downstairs he checked the CCTV and realised that the defendant was an intruder. The manager went back upstairs and confronted him. The defendant left the hotel and was arrested at a later date. He was charged with two counts of burglary: in count 1 the defendant was said to have entered a dwelling, namely Room 2515 in the hotel and in count 2 he was said to have entered part of a building, namely Room 2515 in the hotel. Nothing was stolen. The trial proceeded on the basis that the question of whether the hotel room was a dwelling was a matter of fact for the jury. The judge directed the jury that it was principally the use to which the “space” was put by the occupier that determined whether it was a dwelling. The defendant was convicted of count 1 and count 2 was ordered to lie on the file. The defendant appealed against conviction on the grounds, inter alia, that the judge had misdirected the jury in his definition of “dwelling”.
On the appeal—
Held, appeal allowed, conviction quashed. The question whether a building or part of a building was a dwelling was a question of fact and degree to be determined by the jury. The judge should have explained to the jury what a dwelling was. It would have been sufficient to say that a dwelling was a building or part of a building in which a person was living and made his/her/their home. The most usual examples of dwellings were houses and flats in which people lived and made their homes. Other buildings or parts of buildings might be dwellings. It was unfortunate that nowhere in the summing up did the judge direct the jury about the absence of features that usually characterised a dwelling or the presence of features which pointed away from it being a dwelling. The most striking feature which pointed away from a hotel room being a dwelling was the usually transient nature of the hotel guest’s occupation of it. In the case, the guest had arrived the previous evening, intending to stay for three nights; the judge was bound to have invited the jury to consider whether such occupation was consistent with the room being a dwelling rather than simply a place to stay when working away from home. That was a different factual situation from the circumstance where a hotel room was used as a permanent long-term residence and might well be considered to be a dwelling. The judge told the jury on a number of occasions that the decision about whether the room was a dwelling was a matter for them, but the failure to put before them a balanced account of the features which pointed away from the hotel room being a dwelling while focusing entirely (and not just principally) on what the guest generally did when she was in a hotel room rendered the summing up unfair and the conviction unsafe (paras 16, 24, 35 36, 42).
Audrey Mogan (assigned by the Registrar of Criminal Appeals) for the defendant.
Paul Casey (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown