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

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  • 4
    The short answer is "because the law says so". If you want to know why the law says this then the question is off topic here but would be on-topic on Politics.SE. Sep 27, 2019 at 15:06
  • @Nij no offense, but your edit duplicated my post.
    – user89
    Oct 24, 2019 at 19:03
  • Until picked, the berries are a part of the land, and therefore not capable of theft (you can't steal land in English law). Once picked, they become personal property. Jan 3 at 1:10

3 Answers 3


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

  • 2
    There is also a concept that ownership does not attach to wild things until they are actively reduced to capture and possession. A similar rule applies to flowing oil, to water, to air, and to wild animals. It is less obvious in the case of vegetation and stones, but flows from the same philosophy.
    – ohwilleke
    Oct 24, 2019 at 19:06
  • Also, to be a pendant, I think it would be ad infinitum would be a better word choice than ad nauseum. There is also intersection with the Northern European concept of a freedom to roam. en.wikipedia.org/wiki/Freedom_to_roam , a general legal concept of ignoring de minimus violations (not uniform across even the law of theft let alone the entire criminal code in England), and historically before video recording and photographs, an issue of proving the the item stolen was really stolen from one person's land rather than another which is particularly hard with stones & wildflowers.
    – ohwilleke
    Oct 24, 2019 at 20:00

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.

  • I corrected the Bible citation. I believe this book is most commonly known in English as "Deuteronomy". Also, the link was going to Genesis 1 so I fixed that too. Please feel free to edit further if you don't like it this way. Sep 27, 2019 at 11:38
  • @NateEldredge fine with me. Starting point was the used source in Wikipedia. Important is only that the used text is found. Sep 27, 2019 at 11:50
  • Great catch with the Deuteronomy reference.
    – ohwilleke
    Oct 24, 2019 at 20:02
  • @ohwilleke well you have to thank Wikipedia for that. Oct 24, 2019 at 20:11
  • @MarkJohnson Can't find it if you don't know where to look.
    – ohwilleke
    Oct 24, 2019 at 20:14

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.

  • 4
    Trying to understand the reason why a law exists or how it was formed should is not off topic. 'Because it does' is not really an answer that brings new insite. Sep 27, 2019 at 11:12
  • @MarkJohnson they are off topic for this site. Why politicians do what they do is a political question and belongs on our politics sister site. The history of a law (for example, what the law was before 1968) is on topic but that’s not what the OP asked.
    – Dale M
    Sep 27, 2019 at 12:05
  • This question fulfills: Legal terms and language, doctrines and theory, because it asks for the reason why this applies and not the motive of those who created it. Sep 27, 2019 at 12:26
  • @Mark Johnson, I have raised this issue in this meta question Sep 27, 2019 at 14:44
  • 2
    I would argue that often knowing the apparent motive behind a law aids in interpreting it in close cases, so it is probably not off topic. If it were getting at whether it does fulfill that purpose or should be a good motive, that is one thing, but when it isn't clear what a law is trying to do, I think that it helps. This is a form of legal interpretivism which is an approach in legal theory to interpreting laws parallel to e.g. alternatives like textualism that focus on dictionary definitions. plato.stanford.edu/entries/law-interpretivist
    – ohwilleke
    Oct 24, 2019 at 20:17

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