R v Jones and Smith

Facts

The second defendant, Smith, was the son of the occupier of a house and had general permission to enter it. He and a friend, Jones, went to the house and took two television sets belonging to the father without his consent.

History

Both defendants were convicted of burglary at the Crown Court on the basis that they entered the house as trespassers and stole. They appealed to the Court of Appeal.

Issue

Whether a person with a general permission to enter premises can enter as a trespasser, within section 9(1)(b) of the Theft Act 1968, if he enters with the intention of doing something outside that permission, and what mental element is required for entry as a trespasser.

Held

Appeals dismissed and the convictions for burglary upheld.

Ratio

• A person who has permission to enter a building enters as a trespasser if he enters in excess of that permission, for example for a purpose that the permission does not cover.
• To be guilty the defendant must know that he is entering in excess of the permission given, or be reckless as to whether he is doing so.
• Where that is shown and the defendant steals or attempts to steal after entering, he commits burglary under section 9(1)(b).

Key reasoning

• The word trespasser in section 9 has its civil law meaning, under which a person who goes beyond the permission of the occupier enters as a trespasser, even if he had permission for other purposes.
• The criminal law, however, requires fault, so the defendant must have known or been reckless that he was entering outside the permission; this was the approach adopted in earlier authority on entry as a trespasser in the context of the Theft Act.
• The son had no permission to enter to steal the property of his father, and the jury had been entitled to find that he knew that.

Where it fits in the module

In the Topic 5 property offences debate, burglary is the main example of how criminal liability depends on a civil law concept. The case shows the courts importing the civil law of trespass but adding a fault requirement, and the tension between a wide reading that catches family and invitees and the narrower view that only real intruders are burglars is the core issue.

Criticisms

• Importing the civil law of trespass makes a person who is invited into a house a burglar for acting outside the invitation, so ordinary dishonesty by a guest can become a more serious offence than theft.
• The test of exceeding permission depends on the purpose of the entrant, which is hard to prove and makes the law turn on motive rather than on the act of entry.
• Treating a son with general permission as a trespasser for stealing at the house of his father stretches the notion of entry beyond the intruder paradigm that burglary was designed to protect.