I don't understand this law. Surmise that a wild berry shrub grows on my back yard that's unfenced. I don't cultivate it or do anything – no watering. I invite my piano student to my house – thus no trespassing – no watering, and he picks berries from it.
Why does s 4(3) count this out as theft? Isn't it more reasonable for berries to belong me – they're growing on my land!?!?!
Herring, Criminal Law: Text, Cases, and Materials (8 edn, 2018). pp 492-493
I cannot provide a reason based on English law, but possibly the explanations provided for the former (until 31.12.1974) German law may assist.
The concept was called Mundraub (Wikipedia, German and Norwegen only).
petty theft (of food) is a colloquial term and no longer used by German law, which had the theft or misappropriation of food or beverage or other objects of domestic use in small amount or of insignificant value for immediate consumption.
§ 370 (5) StGB (15.05.1871)
Who steals foodstuffs of insignificant value or in small quantities for immediate use.
An abduction committed by relatives of ascending line against descendants or spouses against the other remains unpunished;
...
In cases no. 4. 5. and 6., the prosecution will only be on request.
The Wikipedia article also quotes the Bible:
According to the Bible, there were cases of permitted oral robbery:
Deuteronomy 23:24-25 (English Standard Version):
24 If you go into your neighbor’s vineyard, you may eat your fill of grapes, as many as you wish, but you shall not put any in your bag.
25 If you go into your neighbor’s standing grain, you may pluck the ears with your hand, but you shall not put a sickle to your neighbor’s standing grain.
And this may very well be the starting point to start searching for the basis in English (or other) laws.
The Theft Act 1968 replaces the Larceny Act 1916, which replaces in part the Larceny Act 1901, ad nauseum. In the current act, the exception is accomplished in the definitions section. Redefinition is a device commonly used by legislatures to clarify intent, where traditional wording does/did not express the desired prohibition. In addition, a special definition excluding a case makes it easier to define the general rule. To be certain, one would need a historical record of legislative discussion (and I suspect that there is no record), but it is reasonably likely that it was not previously against the (common) law to pick a wild blackberry for a snack.
A reading of various prior versions of the larceny statutes suggests that it was never a crime to pick a wild blackberry, instead the crime was taking cultivated goods (which a person put some effort or resources into creating), and destroying resources on a person's land. Those are the kinds of actions explicitly identified in the prior statutes. §4(3) does state a traditional view of "property" (which is why it's in the "property" section), and would have the (presumptively desired) effect without complicating other parts of the statute. Moreover, s1(3)(a-b) of the 1916 act conveys similar "exceptionality".
Norwegian theft law has a similar provision
Tilegnelse av naturprodukter, herunder stein, kvister, vekster mv., av liten eller ingen økonomisk verdi under utøvelse av lovlig allemannsrett, straffes likevel ikke
Appropriation of natural products, including stones, twigs, vegetation etc. with little or no economic value (taken) under the exercise of the legal right to roam is not punished
Why does s 4(3) count this out as theft?
Because it does.
Statues that say X is a crime except if Y are very common.
Why the drafters of the law decided this is off-topic for this site. If I had to guess, it’s probably because collecting wild food was considered a common law right.
