## Facts

- A 19-year-old man climbed a ladder to an 18-year-old woman’s bedroom window in the early morning after drinking, undressed (except socks), and positioned himself at the open window.
- The woman, who had been drinking and was in bed near the open window, awoke and saw a naked male figure at the window in the moonlight.
- Believing the man to be her boyfriend, she signaled welcome and did not resist his entry; they had intercourse while she still believed he was her boyfriend.
- Afterward, she realized he was not her boyfriend, turned on a light, attacked him, and he fled.
- The woman could not remember whether, when she signaled welcome, the man was still outside on the outer sill or already inside the room, a factual point central to whether his entry was trespassory.
- The defendant told police he intended to have intercourse with a girl but claimed he thought he was being invited in when the woman welcomed him; at trial he maintained he would not have entered absent that apparent invitation.
- He was convicted at trial of burglary with intent to commit rape under Theft Act 1968 § 9(1)(a); the trial judge rejected a “no case” submission on trespass and did not require the jury to decide the defendant’s precise position at the moment of the apparent invitation.

## Issues

1. Whether “enters as a trespasser” under Theft Act 1968 § 9(1)(a) requires proof that the defendant knew he lacked permission to enter or was reckless as to permission.
2. Whether an honest belief in consent to enter, including a belief arising from the occupier’s mistake as to identity, can prevent entry from being trespassory for burglary.
3. Whether the conviction was unsafe because the jury was not properly directed to determine whether any invitation occurred before entry (while the defendant was still outside) and to apply the correct mens rea standard for trespass.

## Decision

- The Court of Appeal allowed the appeal and quashed the conviction.
- The court held that entry “as a trespasser” for § 9(1)(a) requires that, at the time of entry, the defendant knew he was trespassing or was reckless as to whether he was trespassing.
- The court held the defendant must be judged on the facts as he honestly believed them to be, including honest mistake about entitlement to enter.
- The trial directions were inadequate because they did not require the jury to resolve the crucial factual question of whether the defendant had already entered before any apparent invitation and did not explain the subjective knowledge/recklessness requirement for trespass.
- On proper directions, the jury could have found that the defendant entered only after an apparent invitation and honestly believed he had permission, which could negate the trespass element of burglary.

## Legal Principles

- For burglary under Theft Act 1968 § 9(1)(a), a person enters “as a trespasser” only if, at entry, the person:
  - knows entry is unauthorized, or
  - is reckless as to whether entry is unauthorized.
- Criminal liability for trespass in burglary is assessed subjectively on the facts as the accused honestly believed them to be, including honest mistake about civil-law rights or permission.
- An invitation to enter can prevent entry from being trespassory even if the invitation is given under a mistake as to the entrant’s identity, provided the accused honestly believes the invitation is addressed to him and is not reckless about lacking permission.
- Where the timing of consent relative to entry is contested, the jury must be directed to decide whether consent preceded entry and to apply the correct mens rea standard for trespass.

## Conclusion

The conviction for burglary with intent to commit rape was quashed because burglary requires proof that the accused entered as a trespasser with knowledge or recklessness as to lack of permission, and the jury was not properly directed on that mental element or on whether any apparent invitation occurred before the defendant entered.


Regina v. Collins, 2 All E.R. 1105 (Eng. C.A. Crim. Div. 1972)