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  • Writer's pictureDurham Pro Bono Blog

The Arbitrary Law of Theft

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.

Recently a group of German students made headlines across the world when they were fined for taking waste food out of a supermarket bin.[1] In many jurisdictions such actions are, controversially, illegal. The law on this issue has been contested for years but any substantial change in England and Wales, still hasn’t been witnessed. In a time when resources are so incredibly scarce and we continue to rapidly worsen the condition of the environment, maybe it’s time to reform the law of theft so that it’s less needlessly punitive and more constructive.

When items are discarded to be taken away as rubbish, they aren’t technically abandoned by the first user even though they no longer have any use for the items. In the criminal law of England and Wales it is crucial that an item should be abandoned before it is appropriated by someone else otherwise it could be a case of theft following cases like Hibbert v Mckiernan[2] (concerning the appropriation of lost golf balls). The law makes some sense; it provides protection for items that may seem to have been abandoned but still have an intended use (such as in the case of bags of goods intended to be given to charity in Ricketts[3] and Toleikis [4]) This becomes clear in some academic literature such as Hickey’s piece on the current law (despite its narrow focus in terms of the cases covered).[5] However, it can also be unnecessarily harsh on people who intend to reuse an item that would otherwise be discarded.

With current pressing social issues, there are even more clear reasons to replace the old law with a more sustainable, fair approach to ownership. The environment is becoming increasingly damaged every passing day,[6] largely due to our disposable culture. The Amazon rainforest is constantly being deforested in order to facilitate greater beef production and more crops are required to sustain the cattle.[7] We continue to consume clothes at a low cost to consumers but with a catastrophic impact on the environment.[8],[9] More and more land is being converted from forests to cotton fields[10] and the unprecedented amounts of water required for the process continues to devastate the environment.[11] Even though reforming the law of ownership and theft will do little in the grand scheme of the issue, in its current state the law is synonymous with the disposable culture responsible for the continued destruction of the environment. Change is crucial in altering attitudes and having an effect (even if minimal) on environmental damage.

Punishing people for reusing what would otherwise be wasted is completely pointless. Food and clothes are necessities, yet they are frequently discarded before they fulfil their purpose. People like Rob Greenfield have highlighted the colossal extent of unnecessary waste; particularly the amount of food that gets completely wasted.[12] It’s undeniably absurd that people can be punished for consuming an item of food that would otherwise rot.

Even though cases like Wood [13] and Rostron [14] indicate leniency to alleged cases of theft of property thought to be abandoned in the presence of honest intent, this is a patchwork solution developed by the courts in response to a larger problem. A harm and honesty based approach is desirable although legislation clarifying this issue (amongst other issues in the law of theft like that of the dishonesty criteria from Ivey) is preferable.[15] Parliament could take a proactive approach to the issue that would hopefully resonate with other countries with similarly arbitrary laws on theft.

The aforementioned reasons provide a substantial incentive to change the law of theft. Without delving into a deeper analysis of the flaws of the current law of theft (primarily the 1968 Theft Act’s[16] arbitrarily heavy focus on dishonesty (particularly following Ivey[17])), it is clear that the law is in need of change. Legislation may have an impact on the environment directly by facilitating recycling and reuse whilst allowing people to use up products that would otherwise be disposed of. But more significantly, it could also change the attitudes of individuals towards their waste and unnecessary consumption which poses one of the main threats to the environment in our time.

Matthew Wishart (Politics)


[1] ‘German students say fines for stealing supermarket waste was ‘absurd’’ BBC News 8 November 2019 <> accessed 10 November 2019.

[2] Hibbert v Mckiernan [1948] 1 All ER 860.

[3] R (Ricketts) v Basildon Magistrates Court [2010] EWHC 2358.

[4] R v Toleikis [2013] EWCA Crim 600.

[5] Robin Hickey, ‘Stealing abandoned goods: possessory title in proceedings for theft’ [2006] 26(4) LS 584

[6] William Ripple, Christopher Wolf, Thomas Newsome, Phoebe Barnard and William Moomaw, ‘World Scientists’ Warning of a Climate Emergency’ [2019] Bioscience.

[7] Alexandra Heal, Dom Phillips and Andrew Wasley, ‘Revealed: rampant deforestation of Amazon driven by global greed for meat’ The Guardian (2 July 2019) <> accessed 18 November 2019.

[8] World Wide Fund for Nature, ‘Cotton’ <> accessed 18 November 2019.

[9] Gaby Hinsliff, ‘Fast fashion is eating up the planet – and this feeble government enables it’ The Guardian (18 June 2019) <> accessed 18 November 2019.

[10] Environmental Audit Committee, Fixing Fashion: clothing consumption and sustainability (HC 2017-19, 1952) paras 68-70.

[11] Ibid, paras 71-72.

[12] <> accessed 24 November 2019.

[13] R v Wood [2002] EWCA Crim 832.

[14] R v Rostron [2003] EWCA Crim 2206.

[15] Sean Thomas, ‘Do freegans commit theft?’ [2010] 30(1) LS 98.

[16] Theft Act 1968.

[17] Ivey v Genting Casinos UK Ltd [2017] UKSC 67.

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