A conviction of burglary with intent to rape becomes convoluted when under appeal, the defendant places the burden of proof upon a building fixture.

In an unprecedented case, the defendant was a teenager who for one reason or another, took it upon himself to enter a teenage girl’s bedroom before engaging in sexual intercourse.

What distinguishes this impulsive act from one that many might expect at that age, is the fact that the complainant allowed his entry on the mistake that she believed him to be her boyfriend, and not a complete stranger.

Having first consumed a large amount of alcohol, the defendant decided that one way or another, he was going to have his way with a willing girl, somewhere.

On this occasion, he selected the home of a girl who, while not directly known to him, he had seen when working on her parents house sometime before.

Having climbed a ladder to her bedroom window, the defendant saw her lying naked in her bed and removed his clothes, while fully aroused.

The complainant was also inebriated to some degree, and therefore beckoned him into her bed, while physically pulling him in before they began to have sex.

After a period of time, the complainant realised that the person she was having sex with was not her boyfriend; upon which, she slapped him and ran to her bathroom.

Following his arrest the following morning, the defendant confessed to his actions but denied that he intended to rape her; instead noting that she had willingly invited him into her bedroom (much to his surprise) on the pretence that they were to have sex.

When heard before a jury, the charge brought before them relied upon section 9(1)(a) of the Theft Act 1968, which explained that burglary was an act requiring trespass with intent to commit an offence, which in this instance fell under section 9(2) as rape.

Having explained the nature of his entry and the preceding acts, the judge left the jury to consider whether his trespass was intentional or reckless, upon which it was agreed that the former applied.

Having appealed, the defendant challenged the conviction on grounds that it had been unproven as to whether the entry was undertaken based upon the complainant’s words and actions, and thus remained unproven as to whether the defendant was outside the window frame or inside the bedroom when she invited him in.

In light of the fact that insufficient evidence existed when establishing that fact, it was decided by the Court that a degree of misdirection had occurred in the original hearing, and so without the full disposal of the truth the conviction for burglary could not stand, while the court reminded the parties that:

“[T]here cannot be a conviction for entering premises “as a trespasser” within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent.”


In a time following the great revolution, it was taken by some occupying ministerial roles that powers typically reserved for the King and courts, were equally applicable to his immediate servants, including the right to issue warrant against those deemed offensive to the Crown, and that might seek to usurp its position through libellous acts.

Hence, when a number of gentlemen formed a ‘newspaper’, they were eventually seen to be acting with defamatory intent, when after the publication of certain articles, a warrant for the seizure of the original works was issued by the Earl of Halifax, who was acting Secretary of State.

The officers despatched were told to include the presence of a police constable; however, they chose to act alone and used force to enter the claimant’s home, before causing significant damage to his property when searching for the relevant documentation; while the second part of the warrant required that they brought the claimant and his papers before the Earl himself, so that they could be examined and the author held to account.

For clarity, prior to the revolution there had been many abuses of power by those so appointed; and so, the reemergence of the rule of common law had sought to prevent these flagrant ignorances in favour of equity and the rights of the citizens of the state.

Yet, when the claimant sought relief for the damages caused, it was argued by the defendants that the Secretary of State reserved the right to execute warrants in the interest of the Crown; and that the defendants were beyond reproach when acting under the rights contained within the Constables Protection Act 1750.

Brought before the court, it became clear that despite statute conferring certain protections against those undertaking certain duties under the instruction of the Crown, there was no evidence to support either the Secretary of State or the officers assigned, until it could be proven that the former was legally entitled to issue warrants.

It was also evident that no police constable had accompanied the defendants as was requested, and that the evidence gathered was then presented to an employee of the Earl and not the issuer himself, who held no powers of delegation in such circumstances.

To further add insult to injury, it was also apparent that the man accused was not even responsible for the libellous comments; and so, the whole affair constituted nothing more than trespass and criminal damage.

Having closely evaluated the limitations imposed upon the Secretary of State, it was agreed by the presiding Chief Justice that at no point in time had it been assumed that the post included magisterial or advisory rights other than to act within matters of high treason, which supported their service as protectors of the public and the state.

This translated that the Earl had acted well beyond his remit, and that any warrant was now void and unenforceable at law.

Hence, with due consideration for the first point it followed that the officers had been acting under illegality, and were therefore guilty of trespass and breaking and entering, and so award was granted in favour of the claimant, while reminding the court that:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground he must justify it by law.”


Reckless endangerment and the scope of relevant statute, prove the nucleus of a case where the civil liberties of the general public and a local authority’s duty of care ran risk of judicial pollution when a life-altering injury led to a damages claim.

Purpose-built from derelict land, the 14-acre Brereton Heath Country Park was home to a popular lake known as the ‘mere’, and although the appeal of the lake drew over 160,000 visitors a year, the controlling borough and local authorities had prohibited swimming through the presence of warning signs, leaflet distribution, lifebelts, throwing lines and constant supervision by park rangers, despite flagrant ignorance by the a majority of the attending public.

Unfortunately, on this occasion the 18 year-old respondent elected to stand in little over two feet of water before proceeding to dive in, whereupon he struck his head on the sandy bottom and broke the fifth vertebrae in his neck.

Now facing life as a tetraplegic, the respondent sought damages from the local authority under the Occupiers’ Liability Act 1957 and Occupiers’ Liability Act 1984 on grounds that a duty of care was owed as both a trespasser and park visitor.

For clarity section 2(2) of the 1957 Act stated that:

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Occupiers’ Liability Act 1957

While s.2(4) explained that:

“In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe…”

Occupiers’ Liability Act 1957

However, in 1976 the Law Commission gave recommendation to a statutory duty of care for trespassers as was given effect in section 1(1) of the 1984 Act s.1(1) while sections 1(5) and 1(6) further read that:

“(5) Any duty owed by virtue of this section in respect of a risk may, in an appropriate case, be discharged by taking such steps as are reasonable in all the circumstances of the case to give warning of the danger concerned or to discourage persons from incurring the risk.

(6) No duty is owed by virtue of this section to any person in respect of risks willingly accepted as his by that person (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

Occupiers’ Liability Act 1984

This translated that where no award was found under the first Act, then the same would apply by extension to the second, while leading authority for the conversion from visitor to trespasser was found in Hillen v ICI (Alkali) Ltd; in which, the House of Lords had held that:

“So far as he sets foot on so much of the premises as lie outside the invitation or uses them for purposes which are alien to the invitation he is not an invitee but a trespasser, and his rights must be determined accordingly.”

Hillen v ICI (Akali) Ltd

And so, given the fact that swimming was overtly and historically prohibited, the respondent sought remedy as a trespasser with claims that the water had muddied his view of the bottom, whereupon mention was made to Whyte v Redland Aggregates Ltdin which the Court of Appeal had explained that:

“[T]he occupier of land containing or bordered by the river, the seashore, the pond or the gravel pit, does not have to warn of uneven surfaces below the water. Such surfaces are by their nature quite likely to be uneven. Diving where you cannot see the bottom clearly enough to know that it is safe to dive is dangerous unless you have made sure, by reconnaissance or otherwise, that the diving is safe, ie, that there is adequate depth at the place where you choose to dive. In those circumstances, the dangers of there being an uneven surface in an area where you cannot plainly see the bottom are too plain to require a specific warning and, accordingly, there is no such duty to warn…”

Whyte v Redland Aggregates Ltd

In the first instance, the judge held that the lake simply wasn’t dangerous enough to warrant local authority liability; and so, dismissed the claim, before the Court of Appeal extended the occupiers liability beyond one of reasonable limits and awarded damages.

However, under challenge the House of Lords fully considered the accountability of the respondent, before reversing the previous judgment and restoring the original findings  on grounds that the principle that individual risk-taking in the knowledge of visible danger was incumbent upon the owner, was counter-productive inasmuch as failure to acknowledge warnings was not a precursor for liability when the claimant suffers harm, whereupon the House reminded the parties that:

“[L]ocal authorities and other occupiers of land are ordinarily under no duty to incur such social and financial costs to protect a minority (or even a majority) against obvious dangers.”


The constitutionality of statute drafted and designed to preserve the interests of a State, coupled with the presumption that such laws are irrelevant to the needs of commerce, provide the basis of a case, where those later prosecuted, are left arguing that word of mouth is sufficient grounds upon which to acquire property.

Having operated as a timber merchant under State licence, the plaintiff in error corporation found themselves in need of a second licence extension, following the recent expiration of their previous reissue.

And so, instead of applying through the proper channels, chose to rely upon verbal declarations of State officials as to their ability to continue removing trees from government land.

For clarity, at the time of the offence § 7 of the Laws of Minnesota 1895 stated that:

“If any person, firm or corporation, without a valid and existing permit therefor, cuts or employs, or induces any other person, firm or corporation to cut, or assist in cutting any timber of whatsoever description, on state lands, or removes or carries away or employs, or induces or assists any other person, firm or corporation to remove or carry away any such timber, or other property, he shall be liable to the state in treble damages, if such trespass is adjudged to have been willful; but double damages only in case the trespass is adjudged to have been casual and involuntary….”

And so, when the plaintiff in error’s activities were discovered, the defendant in error brought charges in the District Court of St. Louis County on grounds of wilful trespass, thus claiming treble damages as prescribed.

Here, the court found for the defendant in error and awarded damages of around $44,000, whereupon the plaintiff in error challenged the judgment in the Minnesota Supreme Court, who upheld the judgment, while holding that:

“The Legislature may declare that a willful trespass upon the lands of another shall constitute a criminal offense and fix the limits of punishment therefor, either by fine or imprisonment, or by compensating the injured party in damages to be recovered in a civil action, or by both, as its judgment may dictate.”

After which, the plaintiff in error appealed on grounds that it had acted in good faith and reliance upon the statements made by those with apparent authority, while in response the court referred to State v. Shevlin-Carpenter Co., in which it had earlier held that:

“Where the defendant is a willful trespasser, the measure of damages is the full value of the property at the time and place of demand; but, if he is only an unintentional or mistaken trespasser,-that is, where he honestly and reasonably believed that he had a legal right to take the property,-then the measure of damages is the value of the property at the time and place and in the condition it was taken.”

State v. Shevlin-Carpenter

Before partially reversing their previous judgment and remanding the matter back in keeping with a significant reduction in damages, thus the plaintiff in error challenged the decision under writ of error in the U.S. Supreme Court, on grounds that the statue was violative of the Fourteenth Amendment to the U.S. Constitution when denying due process, and that as such, no damages were due.

Having reexamined the facts and constitutional argument, along with the right to protect State property through appropriate statute, the Court reasoned that at no point was the questioned legislation hidden from view, nor remotely difficult to understand, while also noting that at no point in history had trespass ever been considered a harmless act.

In closing, the Court also noted that despite the harshness of its construction, the State had proscribed the offence within constitutional bounds, and were therefore sound in their enforcement; after which, it upheld the previous judgment in full, while holding that:

“[I]nnocence cannot be asserted of an action which violates existing law, and ignorance of the law will not excuse.”


To clarify, there are two types of trespass, namely trespass to the person and trespass to land; and so here we will begin by looking at trespass to the person.

Trespass to the person
Trespass to the person includes three torts, ranging from (i) battery (ii) assault and (iii) false imprisonment, as first truly defined by Goff LJ in Collins v Warlock when he said:

“An assault is an act which causes another person to apprehend the infliction of immediate, unlawful, force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.”

Collins v Warlock

(i) Battery
While claiming accidental causes, the defendant in Williams v Humphrey was found liable for battery after pushing the victim into a swimming pool, whereupon the claimant broke his ankle. Given that the intention to push the victim was present, no argument to the contrary could reasonably stand and so damages were awarded.

(ii) Assault
In R v Ireland, a number of women subjected to continuous psychological damage through repeated abusive phone calls, were given the right to claim for assault, even though they never met the defendant in person. When reaching summary judgment, it was remarked by Hope LJ that:

“If the words or gestures are accompanied in their turn by gestures or by words which threaten immediate and unlawful violence, that will be sufficient for an assault. The words or gestures must be seen in their whole context.”

R v Ireland

(iii) False Imprisonment
While reminiscent of physical imposition, this tortious facet involves the restriction of liberty and movement of an individual, while as many might expect, there are cases where over extension of a prison sentence will suffice, however mere isolation or deprivation of escape will also apply.

It is important to note that while the victim may only fear these actions yet not necessarily fall subject to their physical consequences, psychological harm, where proven, will suffice under a claim.

Unlike the tort of negligence, trespass to the person relies upon intention, actual harm and obvious effect, and so victims are compensated not for unintentional damage, but that caused with deliberation.

Trespass to land
Similarly, trespass to land addresses deliberate actions by those subject to it, while primary focus is placed upon the protection and preservation of land or property.

Harm is treated as one stemming from interference with a right to privacy and occupation, and so while possession of the land is imperative to a successful claim, there are (as with trespass to the person) four distinct categories of interference, namely (i) crossing a boundary, (i) remaining on land, (iii) exceeding permissions associated with land and (iv) placing objects upon land without express consent of the owner.

(i) Crossing boundaries
Undoubtedly the more common complaint is one of boundary violation (see Entick v Carrington), and while often focussed upon overgrown foliage or other such matters, there are also incidents where property intrudes into the airspace of land.

As an example, in Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd where a contractor’s crane overswung into a neighbouring property, thus prompting a supported claim for trespass through ‘airspace’.

(ii) Remaining on land
In Jones v Persons Unknown, the freeholders of unregistered land were forced to serve eviction notices after a group of ‘fracking’ protestors set up residence and refused to leave. While claiming to be protecting the land on which they had become entrenched, the defendants were ultimately evicted under the award of a possession order on grounds of trespass.

When outlying the justification for the order, the judge remarked:

“[T]here is simply no evidence that they gave any relevant consent to the occupation of their land which would preclude the claimants from seeking to recover it back…he was in unlawful possession of the claimants’ land, and thus amenable to a claim in trespass and the costs associated with such a claim. It would be to allow him, and others in a similar position, effectively to get away with acts of trespass if they were not required to pay the costs of consequent legal proceedings.”

Jones v Persons Unknown

(iii) Exceeding permissions (trespass ab initio)
When a party enters owned land under agreement, but then proceeds to potentially outstay that welcome through unlawful or abusive actions, the owner is entitled to claim trespass from the point at which the visitor caused offence.

In a case called The Six Carpenters, a number of carpenters entered an inn before ordering and paying for wine and bread; however, things took a turn for the worse when after ordering more wine they refused to pay for it; thus instigating a unsuccessful claim for trespass damages by the landlord when the court held:

“[F]or not paying for the wine, the defendants shall not be trespassers, for the denying to pay for it is no trespass, and therefore they cannot be trespassers ab initio…”

The Six Carpenters

(iv) Placing objects
In Arthur v Anker, the deliberate placement of an oil tanker and flower pots along a boundary wall caused tensions between neighbours, until a claim for trespass led to an injunction to remove the objects, despite several months between their placement and the litigation.

In surmising the judgment, Aldous J emphasised that:

“[T]here is no evidence that such inaction in respect of the oil tank, or any inaction in respect of the flower pots, caused Mr. Stones to believe that he could maintain the tank on the wall situated as it is…He placed the tank upon the wall himself and in my view it could not be seriously suggested that there was detriment in not objecting immediately and now requiring him to remove it.”

Arthur v Anker


Foreseeability, and the duty of care for the criminal acts of third parties, seems somewhat overburdening; and so, in this matter the appellants found themselves central to an argument that required brevity in order to restore the flow of justice.

In 1976, the respondents acquired a derelict cinema as part of their national retail expansion programme, and while awaiting the refurbishment process to begin, the site was occasionally occupied by subcontractors and their employees when fully stripping the building bare ahead of the main construction phase.

Over a period of weeks, the site was also accessed by local youths who, on two occasions, started small fires, before having them extinguished by members of the nearby parish church.

Unfortunately, instead of notifying the police or the appellants, those acts went unreported until a third fire was allowed to get out of control, before causing significant damage to a neighbouring property and the church.

Having commenced litigation against the respondents, the now appellants contended that failure to provide adequate security to the site was a breach of duty owed to prevent both access by the youths, and the damage caused to their properties as a result of the fire.

In the first instance, the court agreed that insufficient safety measures on the part of the respondents had granted reasonable foreseeability that the vandalism might occur; and so, awarded accordingly.

Having been heard in the First Division of the Inner House of the Court of Session, it was agreed by the appellants that the respondents had no knowledge of the first two fires, therefore the decision was reversed.

Presented to the House of Lords, the appellants continued to claim for damages, while the House took time to examine the nature of negligence and duty of care for strangers to property and ensuing criminal acts.

In Dorset Yacht Co Ltd v Home Office, it was remarked by Reid LJ that:

“[W]here human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing.”

Dorset Yacht Co Ltd v Home Office

While in Bourhill v Young, it was argued by MacMillan LJ that:

“The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”

Bourhill v Young

However, it was well illustrated in academic text that:

“[T]he law might acknowledge a general principle that, whenever the harmful conduct of another is reasonably foreseeable, it is our duty to take precautions against it…but, up to now, no legal system has gone so far as this….”

This position was also supported by Sumner LJ in Weld-Blundell v Stephens, who explained that:

“In general…even though A is in fault, he is not responsible for injury to C which B, a stranger to him, deliberately chooses to do.”

Weld-Blundell v Stephens

By this it was construed by the House that unless there are exceptional circumstances where the property owner (who by virtue of his inaction) created a circumstance in which damage to another property fell under his remit, perhaps by some unique relationship, and that the foreseeability of such damage was little short of certain, there could be no justification for holding that owner to account;

And so, it was that for this reason, the appeal was uniformly dismissed, while the House reminded the parties that:

“[L]iability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply upon foreseeability that the pursuer will suffer loss or damage by reason of such wrongdoing. There is no such general principle.”

Book your Free Consultation