4.4 MODERN PERCEPTIONS OF ACCESS AND FORAGING
4.4.2 A Right to Forage?
Access to land, access for purposes of foraging, and the actual taking of plants are distinctive activities in law and the transformation of social and ecological relationships has clouded our perceptions surrounding foraged resource usage. Though access is a prerequisite for foraging, an individual may have access and still not have the right to pick plants on that land.
As discussed above and in some detail in Bonyhady, tangible rights of access were steadily eroded such that by the time of the decision in Harrison v. Duke of Rutland [1893]60, the public possessed only a limited right to pass over a right of way, and no right to do or to take anything whilst doing so. Thus, at common law all plants belong to the landowner and so the public have no right to them. Under the predecessor to CROWA, the National Parks and Access to the Countryside Act (NPACA) 1949, it was probably forbidden to forage (See, Schedule 2(1)(h))61. It remains the case that even plants growing ‘wild’ are the property of someone62
. Therefore, where an opportunistic forager takes uncultivated plants from land, this can still theoretically be considered both a trespass and a conversion unless the landowner authorises it, though the landowner may be deemed to have impliedly authorized gathering on his or her land where he fails to take
60 1 QB 142.
61 Schedule 2(1)(h) is exactly the same restriction as under CROWA Schedule 2 (1)(l). However, the
Act was notable by its ineffectiveness and this section would not have acted as a de facto barrier to anyone wishing to forage.
62 See the Code of Conduct for the Conservation and Enjoyment of Wild Plants, available at
97 preventative action. This presumably includes maintaining fences and posting “No Trespassing” signs.
Actual restraints on foraging are fairly limited, however, as evidenced by the decisions in court and lack of any extension to criminal law. As per Gardner v Mansbridge [1887], where the taking is regarded as having little monetary value, uncultivated or forming part of the normal enjoyment of the countryside, there is no indication that the courts will actually impose
sanctions. Also, after much debate as to whether taking wild plants should be made a crime in certain circumstances, the Criminal Law Revision Committee decided in 1966 (CLC 1966: 22-23) that,
A person should not be guilty of theft by picking mushrooms or other fungi, or flowers, fruit or foliage, growing wild unless he does so for reward or for sale or other commercial purpose.
This position became enshrined in section 4(3) of the Theft Act 1968 (See, also, Bonyhady 201). The burden was placed on the prosecution to establish “commercial purpose” which made it difficult to prove. Furthermore, the subsequent Criminal Damage Act 1971, s.10 (1) repeats that for purposes of the Act, property,
Does not include any mushrooms or the flowers, fruit or foliage of any plant growing wild on land (s. 10(1)(b)), so long as the plant is not uprooted or significantly damaged.
The Criminal Damage Act, unlike the Theft Act, contains no commercial
purpose test. An interesting and contrasting issue arises where the plants are considered to have a significant monetary value, where they may be
subsequently sold or traded or where they are specially protected63.
63 See discussion below and the Botanical Society of the British Isles for guidance as to what plants are
98 Commercial foraging is problematic in that both common and statute law are clear in making it impermissible, but the courts have yet to sanction this through reported decisions. The court’s reluctance to clarify the issue raises the question as to whether, where private foraging is permitted,
commercial foraging remains de facto impermissible? In November 2002, the court had the opportunity to test the permissibility of commercial foraging. Brigitte Tee-Hillman, a wild mushroom forager in the New Forest was arrested and charged under the Theft Act 1968 for picking for commercial purposes without the permission of the land owners64. Mrs. Tee-Hillman had been picking in the New Forest for almost 30 years and had become a supplier to top chefs throughout Britain65. After the New Forest became a national park, the Forestry Commission decided to limit the activities of foragers such as Mrs. Tee-Hillman, who were viewed as picking for commercial gain and in violation of new codes of conduct, such as the Mushroom Picker’s Code of Conduct66. The judge eventually dismissed the case as a “waste of public funds” and the Forestry Commission for Dorset and the New Forest, who are the landowners, were forced to pay costs. The Forestry Commission have since reached a private agreement with Tee-Hilman whereby she is licensed to forage for mushrooms in the New Forest.
However, because of the judge’s dismissal of the case, the precise position for commercial foragers remains uncertain. Moreover, the fact remains that it is difficult to implement any restraint upon commercial foraging
64A criminal case was brought and dismissed at the Bournemouth Crown Court. The articles refer to a
subsequent civil case brought by the Forestry Commission in Southampton Crown Court. For a history of the case and its aftermath, see, http://bbc.co.uk/1/hi/england/hampshire/6170458.stm, last accessed 20 August 2011, 8:55 am.
65 Mrs. Tee-Hillman’s website is: www.wildmushrooms.co.uk
99 activity – simply because exposing potential violations is very time consuming. Whilst this example does not establish any precedents, it does highlight
judicial unwillingness to venture into areas deemed to be of little public interest and where there is a complex, permissive history.
CROWA does not expressly create any criminal offences or civil rights against foraging, nor does it affect any existing legal rights (Sydenham 2002).
However, it does expand upon Schedule 2 of NPAC 1949, the “General Restrictions on the Exercise of Rights of Access”, and defines foraging whilst on newly designated access land as being impermissible. That is, a person becomes a trespasser on the land67 where, inter alia:
1. He or she commits a criminal offence [Schedule 2, para. 1(e)]. 2. Intentionally removes, damages or destroys any plant, shrub,
tree or root or any part of a plant, tree, shrub or root [Schedule 2, para. 1(l)].
3. Engages in any activity that is organised or undertaken (by him or any another) for any commercial purpose [Schedule 2, para. 1(t)].
As noted above, access may also be restricted to conserve flora, fauna or geological or physiological features of the land [Ss 26(1), 3(a), 27, 31]. This could easily be used to prevent access for purposes of foraging, even were it permissible under the Act. Restrictions 1 and 3 merely reaffirm that
commercial foraging is not permitted in the defined circumstances. Restriction 2(l) above is unequivocal in appearing to prohibit foraging of any kind.
Importantly, it also therefore turns anyone found foraging on access land (as defined under CROWA) into a trespasser. Whether and to what extent these
67 As per CROWA, Part 1, Chapter 1, S.2, 4(b) and (c). Trespassing bars the walker from the
100 restrictions shall be enforced remains an open question. However, their legal implications are clear – foraging is not permitted under CROWA.
Like the Acts of Enclosure, CROWA is a product of the prevailing social and political climate. Access to land for recreation is vitally important to the inhabitants of a small and crowded island. However, foraging does not elicit such powerful feelings and thus has not been at the fore of legislative
decisions. Thus, the prohibition that perforce covers foraging was reaffirmed during the process of negotiation for opening access. It allows some measure of protection for the landowner over their plant life whilst also providing a mechanism for conservation and habitat protection. Confusingly, there are real limits to this protection. In the “Note for Information on Schedule 2,” it states:
Activities undertaken on land pursuant to a voluntary agreement with the owner of that land are not affected by the general restrictions. There is nothing in the Act to prevent those continuing as before.
This implies that, where a walker has been foraging on land with the owner’s knowledge or acquiescence, that in the absence of any issues concerning conservation, the restrictions under CROWA may not apply. A right to forage may still exist by private right (e.g. express or implied license or contract), through private or local Acts or even permissively. Furthermore, it should be noted that the restrictions only apply to newly opened access land; access may still be permitted under other enactments (Chapter 1, s. 15). Thus, old foraging haunts – so long as they do not fall under any byelaws or sit in conservation areas – probably remain covered under the permissive regimes that existed prior to CROWA.
101
4.4.3 The Implications of Conservation Legislation and Local Byelaws