Dwelling …in a hotel?

Have you ever wondered whether a hotel room falls within the definition of a dwelling?

No? Me neither! The Court of Appeal in London was, however, recently posed with precisely this question.

Background

The Defendant, Mr Chipunza, wandering into a hotel room in London’s Canary Wharf, unchallenged. The room’s guest had checked in the night before and had gone out to work. Housekeeping was servicing the room.

Mr Chipunza made himself at home and phoned down to reception to extend his “stay” to be advised that the booking was already for three nights. He then called down asking for someone to open the safe. The manager did this. The safe was empty. As he left the room, the manager noticed women’s clothing. On checking CCTV, he realised that Mr Chipunza was an intruder and returned to the room to confront him.

Burglary

Mr Cimpunza was charged with two counts of burglary contrary to section 9(1) of the Theft Act 1968:

A person is guilty of burglary if—

(a) he enters any building or part of a building as a trespasser and with intent to commit any such offence [of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm therein, and of doing unlawful damage to the building or anything therein]; or

(b) having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

The charges specified that he was said "...to have entered a dwelling” or “part of a dwelling” namely “Room 2515 in the hotel”. Nothing was stolen.

Mr Cimpunza, who had significant antecedents, accepted the charges and was convicted. A sentence of 30-months imprisonment was imposed.

Court of Appeal

On Appeal, the court focused on the meaning of the word “dwelling”.

The word dwelling is an ordinary word, albeit somewhat old fashioned in 2021…

Hotels are not generally built to be used as dwellings. Their commercial function is to provide a temporary place to stay…

The trial judge should have explained what was meant by a “dwelling” to the jury. It would have sufficed to say that it was a building or part of a building in which a person is living and makes their home.

That the trial judge did not rendered his summing up unfair and the conviction unsafe:

• The conviction under Section 9(1)(a) was quashed.
• The guilty plea under Section 9(1)(b) was vacated and returned to the Court Court.

Comment

It occurs that the reference to “dwelling” did not reflect verbatim the wording of the statute, which is concerned with “building”.

Law is often defined by pedantry. The instant case added the deprivation of liberty to the mix. The recidivism portrayed by Mr Cimpunza’s antecedents is immaterial. As any fan of Rumpole of the Bailey will be aware:

Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt… If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

Woolmington v DPP [1935] AC 462 per Viscount Sankey LC

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