Facts
Walkington went into a large department store during opening hours. He went behind a counter, which was an area customers were not allowed to enter, and opened a till drawer. The till was empty and he left without taking anything.
History
He was convicted of burglary contrary to section 9(1)(a) of the Theft Act 1968 at trial and appealed to the Court of Appeal.
Issue
Whether a person who is lawfully in a shop as a customer enters part of the building as a trespasser by going behind a counter reserved for staff, and whether an intention to steal anything worth stealing is a sufficient intention to steal for burglary where the till was empty.
Held
Appeal dismissed and the conviction upheld. The counter area was part of the building which he entered as a trespasser, and an intention to steal anything of value that he found there was sufficient.
Ratio
- A person who enters a building or part of a building with permission for some areas but not others is a trespasser if he enters a part he has no permission to enter. The offence under section 9(1)(a) of the Theft Act 1968 is committed on entry with the intention to steal, so a conditional intention to steal whatever is of value suffices.
- To be guilty the defendant must know that he is entering as a trespasser, or be reckless as to that fact.
The judgments
Geoffrey Lane LJ (lead)
Delivered the judgment of the court. He held that customers have no implied permission to go behind the counter, that the jury could find Walkington entered that part as a trespasser, and that the intention to steal was not defeated by the emptiness of the till because the offence turns on his intention at entry.
Key reasoning
- A permission to enter a shop is limited to the parts of it which members of the public are invited to use, so the entry into another part can be trespass.
- Part of a building is a building for the purposes of the section, and the offence can be committed by entering a part where the defendant is a trespasser even though he was not a trespasser elsewhere in the building.
- An intention to steal what he could find if anything of value was there is an intention to steal, and the later discovery that there was nothing to steal does not remove it.
Where it fits in the module
In the Property Offences topic the case frames the entry and trespass elements of burglary under section 9(1)(a). The questions are how far the scope of a permission to be on premises is limited by purpose and location, and what mental element is needed for burglary. Conditional intent was considered again in later decisions, including Attorney General Reference (Nos 1 and 2 of 1979) on the indictment for burglary, and the relationship with attempted theft remains debated.
Criticisms
- The test makes the line between lawful entry and trespass depend on invisible limits on permission inside a shop, so a customer can commit a serious offence by stepping into a part of the building that is not marked as restricted.
- Treating a conditional intention to steal anything as an intention to steal blurs the difference between intention and hope, and risks convicting people for a state of mind that is not a settled plan to steal.
- The decision extends a serious offence with a heavy maximum penalty to conduct that is close to attempted theft, which sits uneasily with the lower penalty for theft.
Written with AI (claude-sonnet-5.5 (Claude Code writer)) on 1 November 2026, reviewed for errors by a second model (claude-sonnet-5.5 (Claude Code checker)). Read the case itself at [1979] 1 W.L.R. 1169, [1979] Crim. L.R. 526. Spotted an error? Tell us.