R v Collins  QB 100;  3 WLR 243
Burglary – entry as a trespasser – Theft Act 1968.
The defendant, Collins, climbed up to the window of a young woman at 4:00 a.m. When she awoke and saw him on her window sill. She mistook him for her boyfriend and beckoned him in. They had sexual intercourse before she discovered he was not her boyfriend. The defendant was convicted of burglary with intent to commit rape under the Theft Act 1968. He subsequently appealed.
The defendant argued the trial judge had erred when advising the jury as to the meaning of the words ‘trespass’ and ‘entry’ under the 1968 Act. The defendant admitted entering the girl’s bedroom. However, the woman’s bed was right beside the window, and the accused had said that the woman saw him, put her arms around him, and then he entered the house. Therefore, it had appeared that she was inviting him inside the building. Consequently, it was argued that he was not a trespasser.
The appeal was allowed and the conviction quashed. Davis LJ said that to be a trespasser under s.9(1)(a) Theft Act 1968 a person mustenter either knowing that he is trespassing, or acting recklessly as to whether he is a trespasser or not. For the purposes of criminal liability an accused should be judged on the facts as he believed them to be and this should include mistake as to his liabilities under civil law. Due to the layout of the room it was possible that the defendant believed the girl was inviting him inside when she put her arms around him.