Dr Sean Thomas, Senior Lecturer in Commercial Law at The University of Leicester.
On the night of 25 October 2013, Paul May, James Chan and William James were arrested for taking food out of the bins at an Iceland store in Kentish Town. Iceland denied they had called the police or sought a prosecution.
May, Chan and James were charged with the offence of being “found in or upon … [an] inclosed yard … for an … unlawful purpose”. That is, stealing, contrary to Section 4 of the Vagrancy Act 1824. This section of the act further provides that anyone convicted “as an idle and disorderly person … shall be deemed a rogue and vagabond”.
I’m not sure what it means to be a rogue and vagabond in the 21st century, but such a conviction (with the publicity the case generated) could have caused the men problems in future. Following significant media attention, on 29 January 2014 the Crown Prosecution Service decided to drop the case.
May, Chan and James were involved in skipping (as in “taking from a skip”). This activity falls under a broader category: freeganism. Freeganism is a loose term for a range of alternative consumption strategies, with no overarching ideological framework, and no limit to its adherents’ political views. The three men arrested in this case may or may not call themselves freegans, but what puts them into the category is their acquisition and use of abandoned goods.
May, Chan and James took tomatoes, mushrooms, cheese and Mr Kipling cakes to the value of £33, items that had been left outside in a bin and which would otherwise have been burned or thrown in the ground. They took the food because they needed it: all three men are squatters, and it would appear that they are on very low incomes.
In the case of skipping, two issues arise: whether skippers are dishonest, and whether goods in a bin actually still belong to someone.
Freegans and the law
According to the Theft Act 1968, a person is guilty of theft if he or she “dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly”. This is important, as the unlawful purpose underlying the vagrancy charge in this case was “stealing”.
To take the last point first, the goods in question may well have been abandoned. If they had been abandoned, there was never a possibility of a theft conviction. Most people would instinctively come to this conclusion, and they would be in good company; the US Supreme Court, in California v Greenwood 486 US 356 (1988), said: “It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public”. In this week’s case, though, the goods were in a bin in an enclosed yard. The law on abandonment is thus very unclear, and it may have been difficult to prove abandonment.
Meanwhile, some people may be disgusted at the thought of eating food that has been thrown into a bin. But should disgust be sufficient for a criminal conviction? In the area of theft, the answer is clearly no. Lord Justice Bridge, in the Court of Appeal case R v Charles , was unlikely to have had skipping in mind, but what he said should be taken to heart: courts should “shun the temptation which sometimes presses on the mind of the judiciary to suppose that because a particular course of conduct … was anti-social and undesirable, it can necessarily be fitted into some convenient criminal pigeon-hole”.
More recently, the Court of Appeal said there was no dishonesty where a man systematically emptied a shop which had not operated for some time, as he was doing it in broad daylight and had a “genuine belief” that the goods were abandoned. Here, the men were doing it in the dark, under cover of night – but so what? The Theft Act 1968 changed the law, and there is now no special distinction for nocturnal behaviour. If in this case the men genuinely believed the goods were abandoned (even if, legally, they were not), there was by definition no theft.
The law therefore seems to suggest that skipping is not criminal per se. So what could have been the “significant public interest in prosecuting these three individuals” that the CPS originally gave as the justification for proceeding with this charge? It could be part of an ideological tendency towards reducing the public’s awareness and pursuit of fringe or radical types of consumption.
Skipping is the antithesis of consumer behaviour; if it is legally circumscribed, the boundaries of acceptable behaviour are therefore shrunk. Prosecutions like the one mooted here are intended to deeper entrench consumerism and consumption as the only acceptable forms of economic behaviour.
We have, regrettably, become used to recent governments restricting the possibility of property radicalism by limiting or eliminating the rights of squatters, protestors and others at the margins of a consumption-led society. This particular case was the latest example of state behaviour that offends against democracy (with the use of archaic legislation), has no support from the alleged victims (Iceland), stands on a shaky legal platform, and demonises potentially environmentally conscientious behaviour.
But while it is easy to see a victory in the CPS’s decision to drop the case, there is arguably no cause for celebration here. As Eduardo Peñalver and Sonia Katyal have persuasively argued, property outlaws such as squatters actually help improve the law by putting it to the test. I would say the same for skippers. This is why the decision to drop the prosecution is problematic: because it has not been tested in a court, we still do not really understand the legality of skipping.
The environmental benefits of reusing waste and the socially beneficial actions of challenging the law should not be left to uncontrolled and variable discretion, which may depend on commercial pressure (to avoid bad publicity) or on games played between the CPS and the police. This farcical episode has ended with a good result for May, Chan and James, but at a broader level, we have missed out on potential benefits to society at large.