R v Jones & Smith [1976] 1 WLR 672

Burglary – when exceeding permission to enter becomes trespass – Theft Act 1968.


The defendants, Jones and Smith, entered Smith’s father’s house and stole two television sets. At his trial, Smith said that his father had given him unreserved permission to enter the house. They were convicted of burglary and subsequently appealed.


Under s.9(1)(b) Theft Act 1968, a person commits burglary if, having entered a building or part of a building as a trespasser, they steal anything therein. The defendants’ argued that they had not entered the house as a trespasser as they had had Smith’s father’s general permission to be in the premises. 


The appeal was dismissed. A person who has general permission to enter a premises may still be a trespasser if he enters knowing he is acting in excess of the permission given or being reckless as to whether he is so acting. The court quoted from The Calgarth [1926] P 93 where Scrutton LJ said (at 110): ‘when you invite a person into your house to use the staircase you do not invite him to slide down the banisters.’ The court rejected the defendants’ argument that it did not matter what as in the defendants’ minds when they entered so long as they had permission to enter. What mattered was whether the defendant was in possession of facts which enabled him to realise he had exceeded his permission or was reckless as to whether he exceeded it. The defendants had entered the premises knowing they had exceeded the permission given. Therefore, they were trespassers.