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When considering R v Peters, context is
different because the defendant was employed by the victim and 14 was in the
immediate vicinity at the time of the jewellery’s disappearance. There was also
a duty on the part of the defendant to return the goods upon discovery, had
they known they belonged to the victim, while in this instance, the defendant
had stolen them for the purpose of reward. There is also a distinction between
waste foodstuffs and missing items of considerable value, which eliminates any question
that the former is abandoned, whereupon the latter has clearly been dishonestly
appropriated. On that margin, the weight of this case seems weak when brought
for consideration. Bentinck Ltd v Cromwell Engineering Co. Bentinck Ltd v
Cromwell Engineering Co. tackles the abandonment issue from a judicial
assumption. 15 Despite the finance company having recorded that the hirer did
not wish to terminate the hire-purchase agreement, the appeal was dismissed and
abandonment cited for legal recovery of the damaged car. It must surely be
understood that if the owner of the vehicle had made it clear he wished to
remain bound by the contract, the concept of abandonment cannot apply. In light
of this evidence, it seems fruitless to use this decision as a defence
component to theft charges. Stewart v Gustafson Although pertinent to the
concept of abandonment, Stewart v Gustafson sufficiently differs from the 16
requirements of a freegan, because in most incidents of bin diving there is no
written agreement, nor clearly defined inventory relating to what is considered
abandoned, or when it is to be considered abandoned. It is also a case
concerning the removal or disposal of private property, again of some worth to
the owner, and not placed in a location designated to hold waste. It does go
some way to define intention, so as a key case to argue the interpretation of
abandonment, the core of the issue helps in distinguishing abandonment over
appropriation. R v William Rowe and R v White In the cases of R v William Rowe
and R v William White, there appears to be a conflict of opinion when 17 18
examining almost identical incidents of possession of goods deemed abandoned.
This is further defined when in the case of Rowe, the canal was undergoing a
cleaning-up operation and instructions had been clear about ownership of
recovered scrap iron. In White, the lack of evidence in relation to exactly
where the pig iron was at the time of recovery, prevented a conviction because
it was construed as abandoned. The facts of

 1982
QB 1004. 12 486 US 35 (1988). 13 1843 1 Car & K 245. 14 1971 1 QB 324.
15 1999 4 WWR 695. 16 1859 Bell cc93. 17 1912 7 CR APP R 266. 18 3
www.theblackletter.co.uk www.theblackletter.co.uk www.theblackletter.co.uk Neil
Egan-Ronayne 2013 Rowe however, lend well to a freegan defence for theft
because it was a stranger that made a false (and perhaps honest) assumption.
The analogy being removal of scrap metal from the bed of a canal could be
compared to recovering food from a commercial bin. R v Edwards and Stacey19
shares a similarity with Peters, except the employer had knowledge of the
burial of the pigs, but at no point expressed desire for his employees to
profit from their demise. This could be used to argue that requesting
permission from the owner of waste foodstuffs before consumption under the
pretence of abandonment, bears more logic than subjective assumption as a means
of justification. To include this would seem prudent, given that it bears
direct relevance to an honest belief that refuse is perceived as unwanted. R v
Small R v Small relates to the alleged dumping of a vehicle on a public highway
for around ten days. The vehicle 20 may well have appeared abandoned, but the
right thing to do would be to report it to the local authority or police. The
defendant on this occasion attempted to steal the car, even admitting theft
when arrested, only to later plead an innocent belief it had been abandoned. As
with many of the previous cases relating to abandonment, the car had not been
discarded in a fashion that would suggest it was free to appropriate, whereas
salvaging for expired food within a bin does not suggest any immediate
detriment to the proprietor of such material. A non-running car retains scrap
value, therefore using this case on the principle of abandonment would be
confusing and should not be given merit. Hibbert v McKiernan Looking at the
final concept of dishonesty, the facts of Hibbert v McKiernan differ from a bin
diving 21 scenario because the golf balls collected belonged not to the golf
club itself, but the members who had lost them while playing. This
significantly alters the nature of the act, because even if the club had
accepted the alleged honesty of the defendant, the lost balls were not their
property, thus exempt from collection under a claim of right . It was also
apparent that prior to summary, the defendant had been retrieving lost golf
balls 22 for gratuities, which is not the intention, nor pursuit of a freegan.
There was also clear evidence of an intention to permanently deprive either the
club or its members of the golf balls, thereby denying any true defence to
theft. With these distinguishing factors considered, it would be foolish to
cite this case within a freegan theft prosecution. R v Rostron R v Rostron relies
upon inadequate signage and club conventions when trying to support a Ghosh
defence 23 against theft. The issue of trespass is however, difficult to
ignore, particularly as a burglar alarm was 24 triggered during the defendants
activities. It is useful to note that in most cases, a freegan does not attempt
to enter an alarmed area while diving for waste foodstuffs, which would suggest
that the bins are not perceived as ‘property’. As a case example for the test
of dishonesty, Rostron also seems a poor analogy for honest intent, as the
defendants tried to lie about how the golf balls came into their possession
when first questioned. Similarly, R v Thurborn cannot be reasonably used to
determine honest intent when the 25 defendant was notified of the owner’s
identity before his disposing of the lost banknote. This case bears little
similarity to an appropriation of waste product under the assumption it has
been abandoned rather than mislaid. R v Wood What is most peculiar about R v
Wood is the partial defence that because nobody had challenged the 26
defendant’s actions during daylight hours, he was honest in his intent. This
argument relies more upon public assumption than moral code as reasons for
appealing a conviction. In addition, the goods recovered were not

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 1877
13 Cox CC 384. 19 1987 Crim LR 777. 20 1948 2 KB 142. 21 Hibbert v
McKiernan 1948 2 KB 142 143 (Goddard CJ) 22 2003 EWCA Crim 2206. 23 24
Criminal Justice and Public Order Act 1994 1848 1 DEN 387. 25 2002 EWCA
Crim 832. 26 4 www.theblackletter.co.uk www.theblackletter.co.uk
www.theblackletter.co.uk Neil Egan-Ronayne 2013 only substantial enough to
warrant several trips with a shopping trolley, but their resale value was
without doubt, far greater than expired food. Regardless of a Ghosh direction,
the events differ, in that freegans are not bin diving for financial gain,
rather for exploitative, if not honest reasons. If the goods recovered by the
defendant had been placed into skips or large bins outside the shop, the
absence of trespass would bear more resemblance to a freegan activity and prove
key to quashing a conviction of theft. Conclusion When concluding this journal
article review, it is important to raise a couple of points that are in need of
further discussion. The first is the issue of trespass, and the second is
seeking communication (or obtaining permission) from the owners. At no point do
freegans seem compelled to discuss their intentions with the proprietors of the
waste they access. This omission does not add weight to a defence that bin
diving is an honest pursuit. It also runs risk to amounting trespass charges,
regardless of how or why waste is consumed or removed. Honesty requires
transparency if one’s actions are seen as noble, yet working in the middle of the
night suggests a fear of reprisal, should the owners sense there is gain on the
part of the freegan (this area deserves greater attention if one is to remove
doubt from the minds of a jury). The question of finding agreement with Dr.
Thomas’s conclusion has already been answered, because neither Wood nor Rostron
can be applied as reasonable defences to theft. In Wood, the defendant entered
a property in order to appropriate goods of significant resale value, assuming
a right of ownership. This assumption was based upon grounds that nobody had
interfered with him while he recovered property not defined as waste. In
Rostron, the defendants had triggered a burglar alarm while appropriating large
numbers of golf balls for profitable redistribution. When confronted, both
denied their actions, despite evidence to the contrary. In both cases, the
intention was to profit from a dishonest action, involving items of value
eligible for resale. Finally, in the event that a freegan may become injured in
the course of their bin diving activity, the volenti non fit injuria principle
should apply.

 

 27
Chris Turner, Unlocking Torts (4th 27 edn, Routledge, 2013) 106 5
www.theblackletter.co.uk www.theblackletter.co.uk www.theblackletter.co.uk Neil
Egan-Ronayne 2013 Bibliography Books Turner C, Unlocking Torts (4th edn,
Routledge, 2013) Carroll A, Constitutional and Administrative Law (7th edn,
Pearson, 2013) Cases Bentinck Ltd v Cromwell Engineering Co 1971 1 QB 324
California v Greenwood 486 US35 1988 Hibbert v McKiernan 1948 2 KB 142
Parker v British Airways Board 1982 QB 1004 R v Edwards and Stacey 1877 13
Cox CC 384 R v Peters 1843 1 Car & K 245 at 247 R v William Rowe 1859
Bell CC 93 R v William White 1912 7 Cr App R 266 R v Rostron 2003 EWCA Crim
2206 R v Small 1987 Crim LR 777 R v Thurborn 1848 1 Den 387 R v Wood 2002
EWCA Crim 832 R v Woodman 1974 QB 754 Stewart v Gustafson 1999 4 WWR 696
Williams v Phillips 1957 41 Cr App R5 Legislation Criminal Justice and Public
Order Act 1994 Theft Act 1968 Torts (Interference with Goods) Act 1977 Online
Articles Thomas S, ‘Do freegans commit theft?’ (2010) accessed 13 April 2014. 6

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