Housebreaking
Housebreaking is breaking into a building by overcoming its security. In Scotland, theft by housebreaking and housebreaking with intent to steal are common law crimes. They apply to any secured building, not only homes, and are treated as serious crimes of dishonesty.
Law checked as at 25 September 2026. Legal information only, not legal advice, and not a prediction of any sentence.
At a glance
| Also known as | Theft by housebreaking, Housebreaking with intent to steal, Burglary (the term used elsewhere) |
|---|---|
| The law | Common law of Scotland |
| Where it is tried | the JP court cannot try theft by housebreaking or housebreaking with intent to steal, so cases go to the sheriff court, either under summary procedure or, for serious or repeated offending, under solemn procedure before a sheriff and jury. The most serious cases, for example where violence is used, may be indicted in the High Court. |
| Maximum penalty | Housebreaking is a common law crime, so there is no single statutory maximum: the limit depends on the court that deals with it. JP court: up to 60 days' imprisonment and/or a fine of up to £2,500. Sheriff court under summary procedure: up to 12 months' imprisonment and/or a fine of up to £10,000. Sheriff and jury (solemn procedure): up to 5 years' imprisonment and/or an unlimited fine, and the sheriff can remit (send) the case to the High Court for sentence if more is merited. High Court of Justiciary: up to life imprisonment and/or an unlimited fine. The JP court has no jurisdiction. The related statutory offence of being found in or on premises in circumstances suggesting an intention to steal (Civic Government (Scotland) Act 1982, section 57) carries up to 3 months' imprisonment and/or a fine of up to £2,500. |
Maximum penalties are the most a court can impose for the worst cases. Most sentences are far lower, and the actual sentence depends on the facts, any guilty plea and the court's assessment.
What the prosecution must prove
- That the accused overcame the security of a building, for example by forcing a door or window, using a false or found key, or getting in through an opening not meant as an entrance
- For theft by housebreaking, that property was then stolen; the thief does not need to have fully entered the building
- For housebreaking with intent to steal, that the accused intended to steal, which is usually inferred from the circumstances
- That the accused is identified by corroborated evidence, such as fingerprints, DNA, CCTV or possession of stolen property
Defences and common issues
- No break-in: using the real key left in the lock, or walking in through an open door, may not count as overcoming security, although theft can still be charged.
- No intention to steal: being in the building for another reason, although other offences may apply.
- Permission or authority to enter the building.
- Identification: challenging the reliability of forensic, CCTV or other evidence linking the accused to the break-in.
Frequently asked questions
Is housebreaking the same as burglary?
Broadly, yes, but burglary is not a crime in Scots law. The Scottish equivalents are theft by housebreaking, where property is stolen after breaking in, and housebreaking with intent to steal, where someone breaks in intending to steal but nothing is taken. Both are common law crimes. Breaking into a locked car, safe or cupboard is charged differently, as theft by opening a lockfast place, or opening a lockfast place with intent to steal.
Does housebreaking only apply to houses?
No. Despite the name, housebreaking can be committed against any building whose security is overcome, including shops, offices, commercial premises and other secured buildings, as well as homes. Police statistics separate dwellings from non-dwellings, but the crime is the same. Breaking into a home is generally regarded as more serious because of the impact on the people who live there, and that can affect which court deals with it.
Is it housebreaking if the door or window was left open?
It depends how the person got in. Housebreaking means overcoming the security of the building. Walking in through an unlocked door and taking something is usually charged as theft rather than housebreaking. Using the real key left in the lock does not count as breaking in. However, using a false or found key, forcing a lock, or climbing in through a window or other opening not meant as an entrance can amount to housebreaking.
What if I'm found inside a building but haven't taken anything?
You may be charged with housebreaking with intent to steal if there is evidence of a break-in and the circumstances suggest an intention to steal. Where there is no break-in, section 57 of the Civic Government (Scotland) Act 1982 makes it an offence to be found in or on a building, its grounds or a vehicle without lawful authority in circumstances suggesting an intention to steal. That offence carries up to three months' imprisonment and/or a fine of up to £2,500.
Do I have to answer police questions if I'm arrested for housebreaking?
No. You have the right to remain silent, and in Scotland a court cannot draw an adverse inference from your silence in a police interview. You must give your name, address, date of birth, place of birth and nationality if police require them. You are entitled to free legal advice from a solicitor before and during a police interview. Police may also take fingerprints, photographs and DNA samples while you are in custody.
Official sources
Primary sources and official guidance on this topic, for anyone who wants to read the underlying rules directly.
- Scottish Government: Scottish Crime Recording Standard, Group 3 (crimes of dishonesty)
- Scottish Sentencing Council: Maximum and minimum sentences
- Criminal Procedure (Scotland) Act 1995, Part I (jurisdiction and sentencing powers of the courts)
- Civic Government (Scotland) Act 1982, section 57
- Judicial Office for Scotland: The Judiciary in Scotland (criminal courts information sheet)
Charged or under investigation? Ask LawBot a general question, or find a criminal defence solicitor near you.
Ask LawBot →