1. W Skidelsky ‘The freegans' creed: waste not, want not’The Observer 19 July 2009, available at http://www.guardian.co.uk/environment/2009/jul/19/freegan-environment-food: it is an ‘ill-defined activity . . . [without] any one clear statement of their aims and motivations’. On freeganism, see generally the information available at http://www.freegan.org.uk; http://en.wikipedia.org/wiki/Freeganism; http://freegan.info/; http://freegan.org.uk/. See A Weissman ‘Everyday Revolutions: Practices and Institutions for Living Beyond Capitalism in Everyday Life’, available at http://freegan.info/?page_id=174, text accompanying nn 30–48 for links to various examples of freeganism. See also in general the media links page available at http://freegan.info/?page_id=50. There are also newspaper articles describing freeganist behaviour in England, available at http://www.guardian.co.uk/lifeandstyle/2007/aug/19/foodanddrink.ethicalfood; http://www.dailyecho.co.uk/news/features/living/3961963.Freeganism___making_use_of_things_shops_throw_away/; http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/2793564/Dumpster-diving-with-the-freegans-Why-pay-for-food.html.

2. See, eg, the website available at http://freegan.info/, where the front page of the website provides a variety of anti-consumerist and leftist descriptions of and justifications for freeganism, such as this: ‘Freeganism is a total boycott of an economic system where the profit motive has eclipsed ethical considerations and where massively complex systems of productions ensure that all the products we buy will have detrimental impacts most of which we may never even consider. Thus, instead of avoiding the purchase of products from one bad company only to support another, we avoid buying anything to the greatest degree we are able’.

3. LJ Strahilevitz The Right to Abandon John M Olin Law and Economics Working Paper No 455 (February 2009), available at http://ssrn.com/abstract=1348211), at p 3, text to fn 3: ‘As a testament to the prevalence of abandonment, it appears that some of these freegans are able to live essentially pleasant, middle-class lives’.

4. See generally Stuart, T Waste: Uncovering the Global Food Scandal (London: Penguin, 2009).Google Scholar Stuart was the subject of a recent newspaper feature: Skidelsky, above n 1.

5. See the website available at http://freegan.info/.

6. See, eg, ibid, noting that the term ‘freegan’ appears to be a portmanteau of ‘free’ and ‘vegan’. See also the website available at http://www.freegan.org.uk/ukfreegans/?page_id=6, describing meat-eating freegans as ‘meagans’.

7. See, eg, Strasser, S Waste and Want: A Social History of Trash (New York: Henry Holt, 2000) pp 191–201 Google Scholar and pp 274–278 (discussing planned obsolescence);

8. This will cover the Freecycle movement, where individuals post notices on the internet that goods are free for those who are willing to pick them up. See, eg, the website available at http://www.uk.freecycle.org/.

9. See the website available at http://freegan.org.uk/pages/faq.php#10.

10. See the website available at http://freegan.info/. For a distinction between garbage (animal and vegetable matter) and rubbish, trash and refuse (all other types of waste), see, eg, Strasser, above n 7, p 29 at fn *. For reasons of clarity this distinction is not maintained herein.

11. See, eg, Honoré, AM Ownership’ in Guest, AG (ed) Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1965) pp 107–147 Google Scholar, at p 118. There is of course controversy concerning the application of this right to cultural treasures (see, eg, JL Sax Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (Ann Arbor: University of Michigan Press, 1999)), but freegans will be concerned with foodstuffs, not paintings.

12. Hudson uses this argument to justify the decision in R v Edwards and Stacey (1877) 13 Cox CC 384: see Hudson, AH Is divesting abandonment possible at common law?’ (1984) 100 LQR 110 Google Scholar at 115 fn 42: ‘Policy considerations of aspects of health clearly underlay the decision’. Later, in ‘Abandonment’ in this rationalisation was simplified down to ‘obvious reasons of policy’. Edwards and Stacey (discussed further below, text following n 100) involved the theft of three dead pigs that had been buried as they had been bitten by a mad dog.

13. See, eg, Honoré, above n 11, p 123.

14. Penner, JE The Idea of Property in Law (Oxford: Clarendon Press, 1997) pp 79–80.Google Scholar

15. Ibid, p 79.

16. See generally Stuart, above n 4.

17. See, eg, Hudson ‘Abandonment’, above n 12, p 614.

18. This issue, and the ones that follow in the main text, were all raised by Tristram Stuart, a freegan and author, in Skidelsky, above n 1.

19. It should be noted at this point that there is a specific offence of interfering with waste receptacles under the Environmental Protection Act 1990, s 60. However, as the focus of this paper is the assessment of whether a freegan bin-diver commits the offence of theft, the s 60 offence can be disregarded for the sake of economy and clarity. It is worth noting though that the existence of a regulatory offence of this nature does not demonstrate that the environmental justifications for bin-diving put forward by freegans are in any way incorrect. It is, as is implied by the text accompanying this footnote, a question of balance.

20. (1957) 41 Cr App R 5.

21. See text following n 103.

22. Ormerod, D and Williams, DH Smith's Law of Theft (Oxford: Oxford University Press, 9th edn, 2007)Google Scholar (Smith's Law of Theft) [2.186] fn 312. For an interesting discussion of this act of ‘garbology’ (a portmanteau of archaeology and garbage), see Scanlan, above n 7, pp 142–153.

23. 486 US 35 (1988).

24. California v Greenwood 486 US 35, 40 (1988).

25. Hudson ‘Abandonment’, above n 12, p 613.

26. See the website available at http://www.dailyecho.co.uk/news/features/living/3961963.Freeganism___making_use_of_things_shops_throw_away/.

27. A similar approach can be seen in a comment to an article on freeganism on the Telegraph website (http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/2793564/Dumpster-diving-with-the-freegans-Why-pay-for-food.html) which states this ‘what's the problem with Freeganism? If you throw something away, you give up your right to call it yours, If someone else can use it, good luck to them’. (Page screenshot saved by author, available on request.)

28. National Insurance Co of New Zealand v Espagne’ (1961) 105 CLR 569, 572 (Dixon CJ), cited in DW Elliott ‘Dishonesty in theft: a dispensable concept’[1982] Crim LR 395 at 401.

29. Section 3(b) Dishonesty.

30. There cannot be a sale, which requires ‘money consideration, called the price’: Sale of Goods Act 1979, s 2(1). More fundamentally, there is no contract between the relevant parties.

31. Simester, AP and Sullivan, GR Criminal Law: Theory and Doctrine (Oxford: Hart Publishing, 3rd edn, 2007) p 441.Google Scholar

32. See the website available at http://freegan.org.uk/pages/faq.php#11.

33. See generally Smith, Ath Property Offences: The Protection of Property through the Criminal Law (London: Sweet & Maxwell, 1994)Google Scholar; Smith's Law of Theft, above n 22. See also Simester and Sullivan, above n 31, pp 441 et seq; (Smith and Hogan) chs 19–29.

34. Smith's Law of Theft, above n 22, at [1.48]. This statement is clearly made in the context of whether the Fraud Act 2006 will have an impact on the law of theft, but I believe it is an accurate description of theft.

35. It is assumed for the sake of economy that the goods taken by freegans constitute property that can be stolen under the provisions of the Theft Act 1968.

36. Simester and Sullivan, above n 31, p 471. See generally Lawrence v Metropolitan Police Commissioner[1972] AC 626 at 632; R v Morris[1984] AC 320; R v Gomez[1993] AC 442 at 464; R v Hinks[2001] 2 AC 241; R Williams ‘Reining in the concept of appropriation in theft’ (2003) 29 Monash U L Rev 261; Smith and Hogan, above n 33, pp 733 et seq; Simester and Sullivan, above n 31, pp 469–483; Smith's Law of Theft, above n 22, at [2.08] et seq.

37. Cf Scanlan, above n 7, p 13: ‘Appropriation is the mother of garbage’.

38. For some reason it appears that there is an exponential growth in the literature on abandonment. See generally Hudson ‘Is divesting abandonment possible at common law?’ and ‘Abandonment’, above n 12; Hickey, R ‘Stealing abandoned goods: possessory title in proceedings for theft’ (2006) 26 LS 584 Google Scholar; ; LJ Strahilevitz The Right to Abandon John M Olin Law and Economics Working Paper No 455 (February 2009), available at http://ssrn.com/abstract=1348211. There is also a useful overview in K Gray and SF Gray Elements of Land Law (Oxford: Oxford University Press, 5th edn, 2009) at [1.2.69]–[1.2.79]. However, the issue of freeganism, and bin-diving in particular, is not dealt with in any depth in the literature.

39. Simester and Sullivan, above n 31, p 452. For the argument that the purpose of theft is actually to prohibit dishonest interferences and not interferences per se, see text accompanying nn 174–177.

40. Ellerman's Wilson Line Limited v Webster[1952] 1 Lloyd's Rep 179; R v White (1912) 107 LT 528; R v Peters (1843) 1 Car & K 245; R v Reed (1842) Car & M 306.

41. See, eg, Buckley v Gross (1863) 3 B & S 566; Daniel v Rogers[1918] 2 KB 228 at 234; Parker v British Airways Board[1989] QB 1004 at 1009; Costello v Chief Constable of Derbyshire[2001] 1 All ER 150; R v Meredith[1973] Crim LR 253; cf R v Turner (No 2)[1971] 2 All ER 441; R v Hinks[2001] 2 AC 241.

42. Armory v Delamirie (1722) 1 Str 505. See generally Rose, CM Possession as the origin of property’ (1985) 52 U Chi L Rev 73 CrossRefGoogle Scholar; ; ;

43. Smith's Law of Theft, above n 22, at [2.11]. See also Griew, above n 33, at [2.88]. That the actus reus of theft has disappeared is the consequence of the decisions of the House of Lords in R v Morris[1984] AC 320; R v Gomez[1993] AC 442 at 464; R v Hinks[2001] 2 AC 241.

44. The necessity of analysing the common law rules concerning abandonment is clearly illustrated in Hickey, above n 38.

45. See, eg, Pollock and Wright, above n 42, p 124 (acquisition of goods can ‘perhaps’ occur following abandonment); Griffiths-Baker, above n 38.

46. Bell, AP The Modern Law of Personal Property in England and Ireland (London: Butterworths, 1989) p 36 Google Scholar fn 1. R v Reed (1842) Car & M 306 at 308 (Coleridge J): ‘a subject of which many people are ignorant’.

47. Penner, JE The Idea of Property in Law (Oxford: Clarendon Press, 1997) p 79.Google Scholar

48. See, eg, Strahilevitz, LJ The right to destroy’ (2005) 114 Yale LJ 781.Google Scholar

49. Strahilevitz , above n 38, p 12, text following fn 49.

50. Hudson has persuasively shown that it is in fact decisions from the sphere of criminal law, rather than those of the civil courts, which prove that abandonment is possible in English common law: Hudson ‘Is divesting abandonment possible at common law?’, above n 12.

51. Section 3(a)(i) Abandonment.

52. Section 3(a)(ii) Abandonment by disposal as rubbish.

53. Ellerman's Wilson Line Limited v Webster[1952] 1 Lloyd's Rep 179 at 180.

54. On loss generally see, eg, ‘Possession of “lost” goods’ (1920) 20 Col L Rev 780.

55. Pollock and Wright, above n 42, p 44.

56. Ibid, pp 44 and 183.

57. See also Strahilevitz, above n 38, pp 5–6. Strahilevitz takes into account the subjective value of the goods as well as the market value.

58. (1843) 1 Car & K 245 at 247.

59. Ibid, at 247.

60. [1971] 1 QB 324.

61. Ibid, at 328–329 (emphasis added). The other judges, Fenton Atkinson and Cairns LJJ, both agreed with Lord Denning MR (at 329 of the report). The Court of Appeal decision in Dee Conservancy Board v McConnell[1928] 2 KB 159 appears at first sight to provide a very strict standard for the reasoning adopted by Lord Denning MR. In the earlier case Scrutton LJ (at 163–164) said that if he crashed his car onto someone's lawn thus blocking their drive, because of his negligent driving, ‘[i]t will be no answer to the claim by that person for the damage done to his lawn and the blocking of his drive, and for the expense incurred by him in removing the motor car which I had not removed, for me to say: “I abandon the car.” ’ However, the Dee Conservancy Board case concerned the law of wreck (which as Hudson has twice noted (see above n 12) provides an idiosyncratic set of rules on abandonment), and so can be distinguished. Furthermore, the situation in Bentinck was substantially different as the abandoned car had not caused loss to a third party nor was it causing further loss.

62. See below, text accompanying nn 72–74.

63. [1999] 4 WWR 696 at [38].

64. Ibid. See also at [21]: ‘As the practical or monetary value of a chattel increases, so in my view does the difficulty of inferring abandonment’. See also Fidelity-Philadelphia Trust Co v Lehigh Valley Coal Co 143 A 474 (Penn 1928).

65. See above, text following n 6.

66. See above, text following n 23.

67. Simester and Sullivan, above n 31, p 457 (emphasis added). See also Smith's Law of Theft, above n 22, at [2.186]: ‘If [the owner] intends to exclude others from [the goods], he does not abandon it, though it may be clear that he intends to make no further use of it himself’.

68. See above, text following n 38.

69. Gray and Gray, above n 38, at [1.2.78].

70. [1974] QB 754.

71. Ibid, at 758.

72. See, eg, Holmes, OW The Common Law (Boston: Little Brown, 1881) p 216 Google Scholar et seq; Pollock and Wright, above n 42, pp 38–39; R v William Rowe (1859) Bell 93; Elwes v Brigg Gas Co (1886) 33 ChD 562; South Staffordshire Water Co v Sharman[1896] 2 QB 44 (on which see further ); Hibbert v McKiernan[1948] 2 KB 142.

73. Pollock and Wright, above n 42, p 39.

74. R v Woodman[1974] QB 754 at 758 (Lord Widgery CJ). See also Ellerman's Wilson Line Limited v Webster[1952] 1 Lloyd's Rep 179 at 180 (Lord Goddard CJ): in order for abandonment to be found it has to be shown that the owner had ‘definitely abandoned it and did not intend to retrieve it’.

75. See, eg, South Staffordshire Water Co v Sharman[1896] 2 QB 44; The Title of the Finder (1899) 33 ILT 225; Wiley v Synan (1937) 57 CLR 200; Grafstein v Holme[1958] 12 DLR (2d) 727.

76. See, eg, Elwes v Brigg Gas Company (1886) 33 ChD 562; South Staffordshire Water Co v Sharman[1896] 2 QB 44; City of London Corporation v Appleyard[1963] 2 All ER 834; Moffatt v Kazana[1969] 2 QB 152; Waverley BC v Fletcher[1996] QB 334; Gray and Gray, above n 38, at [1.2.70]–[1.2.71].

77. See, eg, R v Woodman[1974] QB 754; Simester and Sullivan, above n 31, p 458.

78. [1982] QB 1004. See also Munday v Australian Capital Territory (1998) 146 FLR 17.

79. (1859) Bell 93.

80. (1912) 7 Cr App R 266.

81. Ibid, at 268.

82. Ibid.

83. Cf Hibbert v McKiernan[1948] 2 KB 142 at 150 (Lord Goddard CJ) for a distinction on the grounds William White was merely a case where the conviction was quashed because the trial judge's summing up failed to explain the law of stealing by finding.

84. (1912) 7 Cr App R 266 at 268.

85. [1948] 2 KB 142.

86. [2003] EWCA Crim 2206. See generally Hickey, R Stealing abandoned goods: possessory title in proceedings for theft’ (2006) 26 LS 584.Google Scholar

87. [1948] 2 KB 142 at 149.

88. Hickey, above n 86, pp 589–593. This was evidenced by the club employing a police constable to monitor the course to ward off trespassers and those who would take lost balls: [1948] 2 KB 142 at 144.

89. [1948] 2 KB 142 at 143.

90. Ibid, at 149–150 (emphasis added).

91. Ibid, at 151 (emphasis added).

92. [2003] EWCA Crim 2206 at [1] (Mantell LJ).

93. Noted in Smith's Law of Theft, above n 22, at [2.206].

94. Hickey, above n 86, pp 598–600.

95. [2003] EWCA Crim 2206 at [3].

96. Ibid, at [19].

97. Hooper, Lord Justice and Ormerod, D (gen eds) Blackstone's Criminal Practice 2008 (Oxford: Oxford University Press, 18th edn, 2007)Google Scholarat [B4.37].

98. Griew, above n 33, at [2.29].

99. Section 3(b) Dishonesty.

100. (1877) 13 Cox CC 384.

101. See, eg, Hudson ‘Is divesting abandonment possible at common law?’, above n 12, at 115 fn 42.

102. See above, text accompanying n 10.

103. (1957) 41 Cr App R 5.

104. Ibid, at 8.

105. Reed, A and Fitzpatrick, B Criminal Law (London: Sweet & Maxwell, 3rd edn, 2006) p 444.Google ScholarIn Williams v Phillips, although the householder had not abandoned property by throwing out the rubbish, the basis of the conviction was that there was a theft against the employer (ie the local authority that collected the rubbish) and not against the householder.

106. Hudson ‘Is divesting abandonment possible at common law?’, above n 12, at 115.

107. Smith and Hogan, above n 33, p 778.

108. See above, text following n 12.

109. This links into the principle that property found by an employee belongs to the employer. See above, n 75 and accompanying text.

110. Thornton v Shoe Lane Parking Ltd[1971] 2 QB 163 at 170: ‘In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling’.

111. See, eg, Smith's Law of Theft, above n 22, at [2.269] et seq; Simester and Sullivan, above n 31, pp 489 et seq; Smith and Hogan, above n 33, pp 779 et seq; Halpin, A Definition in the Criminal Law (Oxford: Hart Publishing, 2004) pp 149 Google Scholaret seq; Law Commission ‘Fraud’ (Law Com No 276, 2002) part V: The Role of Dishonesty in the Criminal Law; Griew, above n 33, [2.120]–[2.142]; E Griew ‘Dishonesty: The Objections to Feely and Ghosh’[1985] Crim LR 341; Elliott, above n 28.

112. Law Commission ‘Legislating the Criminal Code: Fraud and Deception’ (Law Com No 155, 1999) part III, [3.24]: it is the ‘principal determinant of criminality’. See also Criminal Law Revisions Committee Eighth Report: Theft and Related Offences Cmnd 2977, 1966, at [33]. There is considerable strength in the argument that, following R v Hinks[2001] 2 AC 241, theft has become to a large degree a ‘thought crime’: Smith, Ath Theft or sharp practice: who cares now? 2001 CLJ 21 Google ScholarPubMed at 22; see also

113. Reed, A and Fitzpatrick, B Criminal Law (London: Sweet & Maxwell, 3rd edn, 2006) p 451.Google Scholar

114. Pollock and Wright, above n 42, p 183.

115. Smith's Law of Theft, above n 22, at [2.271].

116. Ibid, at [2.273].

117. Section 3(b)(i) Belief in the right to deprive.

118. Section 3(b)(ii) Belief that the owner consents.

119. Section 3(b)(iii) Belief that the owner cannot be found using reasonable means.

120. Section 3(b)(iv) The Ghosh test.

121. Theft Act 1968, s 2(1)(a).

122. Any right in law (and presumably in equity also) will do, not just property rights: Wood[1999] Crim LR 564.

123. Harris v Harrison[1963] Crim LR 497.

124. See, eg, Hale, M History of the Pleas of the Crown vol I (London: Nutt and Gosling, 1800) p 54;Google Scholar; Southwark London Borough Council v Williams[1971] Ch 734 at 744 (Lord Denning MR).

125. See, eg, Bernhard[1938] 2 KB 264; Terry[2001] EWCA Crim 2979. Cf Gott v Measures[1948] 1 KB 234. See Griew, above n 33, at [2.125]: if the defendant has an honest belief in the right to deprive there is no dishonesty, even if the claim of right is unknown to the law (citing Williams, G Criminal Law: The General Part (London: Stevens & Son, 2nd edn, 1961) pp 321–325).Google Scholar

126. R v Wood[2002] EWCA Crim 832, [2002] All ER (D) 08 (Apr) at [25], following R v Small[1987] Crim LR 777.

127. See the website available at http://news.bbc.co.uk/1/hi/england/kent/7608054.stm.

128. See above, text following n 12.

129. Hudson ‘Abandonment’, above n 12, pp 613–614.

130. Section 3(b)(iv) The Ghosh test.

131. Smith's Law of Theft, above n 22, at [2.277].

132. Ibid, at [2.276]–[2.277].

133. Theft Act 1968, s 2(1)(b).

134. Smith's Law of Theft, above n 22, at [2.280].

135. See above, text accompanying n 23. The owner may have concerns if the rubbish contained confidential information, though as noted earlier (see above, text accompanying n 20) this issue will not arise in the case of a freegan bin-diver.

136. Theft Act 1968, s 2(1)(c).

137. Smith's Law of Theft, above n 22, at [2.284].

138. Ibid, at [2.282] and [2.284].

139. (1848) 1 Den 387 at 396 (Parke B).

140. See above, text following n 55.

141. [1973] QB 530.

142. In doing so there was a move away from the notion that dishonesty was a legal concept (see, eg, Potger (1970) 55 Cr App R 42; Halstead v Patel[1972] 1 WLR 661). The subjective nature of the Feely test, whereby the defendant's own judgement was the critical one, was described as an ‘alarming proposition’: Elliott, above n 28, at 397.

143. [1982] QB 1053.

144. This is the formulation used by Griew: E Griew ‘Dishonesty: the objections to Feely and Ghosh’[1985] Crim LR 341 at 341–342. It derives from the following passage of Lord Lane CJ's judgement in R v Ghosh[1982] QB 1053 at 1064: ‘In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest’. See also Simester and Sullivan, above n 31 p 493; Smith and Hogan, above n 33, p 783; Smith's Law of Theft, above n 22, at [2.295]; Halpin, A Definition in the Criminal Law (Oxford: Hart Publishing 2004)Google Scholarch 4.

145. R v Roberts (1985) 84 Cr App R 177; R v Price (1989) 90 Cr App R 409. See also Smith's Law of Theft, above n 22, at [2.279] suggesting that the statutory provisions on dishonesty should be preferred to the Ghosh test if claims of right are made (see n 131).

146. [2002] EWCA Crim 832.

147. See also P Gerstenblith ‘The adverse possession of personal property’ (1988–1989) 37 Buff L Rev 119 at 128, noting that with regard to the law concerning the acquisition of good title to personal property by adverse possession, there is some considerable importance attached to adverse possession in an ‘open and notorious’ manner (citing Burroughs Adding Machine Co v Bivens-Corhn Co (1941) 189 Okla 616 at 617).

148. There used to be separate offence for burglary depending on the timing of the act: see, eg, Smith's Law of Theft, above n 22, at [8.01].

149. It may well go to sentencing though: R v Saw et al[2009] EWCA Crim 1, [2009] 2 All ER 1138 at [22].

150. [2003] EWCA Crim 2206.

151. [1973] QB 530 at 539.

152. Ibid, at 541.

153. See also SP Green Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime (Oxford: Oxford University Press, 2006) p 1: ‘penal sanctions . . . should be reserved for conduct that is truly and unambiguously blameworthy’.

154. Griew, above n 144. The Ghosh test does not appear to have many friends, with Halpin going so far as to claim it is ‘unworkable’: Halpin, above n 144, p 150. See also Campbell, K ‘The test of dishonesty in R v Ghosh ’ (1984) 43 CLJ 349,CrossRefGoogle Scholar demonstrating the faulty reasoning applied in Ghosh.

155. Griew, above n 144, at 343–344.

156. Cf Feely[1973] QB 530 at 541 (Lawton LJ).

157. Griew, above n 144, at 343.

158. See the website available at http://news.bbc.co.uk/1/hi/magazine/6933744.stm.

159. Strasser, S Waste and Want: A Social History of Trash (New York: Henry Holt, 2000) pp 114–117.Google Scholar

160. Ibid, pp 111–159, and especially pp 138–139.

161. Ibid, pp 161–181.

162. See generally J Scanlan On Garbage (London: Reaktion Books, 2005).

163. Eighner, L Travels with Lizbeth (New York: St Martin's, 1993) pp 118–119 Google Scholar (a memoir of American homelessness, describing bin-diving), cited in Strasser, above n 159, p 3.

164. Griew, above n 144, at 344. See also Elliott, above n 28, at 406; Parsons, S Dishonest appropriation after Gomez and Hinks ’ (2004) 68 J Crim L 520 CrossRefGoogle Scholar at 528–529.

165. Griew, above n 144, at 344. It appears that this is essentially the same objection as one Griew later raises in the same article (at 346); the problem of the ordinary dishonest jury.

166. A Halpin ‘The test for dishonesty’[1996] Crim LR 283, 286.

167. Halpin, above n 144, p 155.

168. SP Green and MB Kugler ‘Community perceptions of theft seriousness: a challenge to model penal code and English Theft Act consolidation’ (6 January 2009), available at SSRN http://ssrn.com/abstract=1323833.

169. See the website available at http://www.honestylab.com/index.php?id=1.

170. S Fafinski, interview in G Rubin ‘Online “confessions” of dishonesty reveal what sways a jury's verdict’The Observer 19 July 2009, News 17.

171. [1982] QB 1053 at 1064.

172. Elliott, above n 28, at 398.

173. Griew, above n 144, at 353.

174. See, eg, Simester, A P and Sullivan, G R On the nature and rationale of property offences’ in Duff, RA and Green, SP (eds) Defining Crimes: Essays on the Special Part of Criminal Law (Oxford: Oxford University Press, 2005)Google Scholar ch 8.

175. A Steel ‘The harms and wrongs of stealing: the harm principle and dishonesty in theft’ (2008) 31 University of New South Wales Law Journal 712 at 734.

176. Ibid, especially at 732: ‘It is the element of dishonesty that separates criminal from tortious interferences with property; theft from conversion’.

177. Simester and Sullivan, above n 174, pp 172–174 argue that there is an offence where D takes V's old shirt, even though V has no use for the old shirt and will throw it away whereas D can put the shirt to good use, on the basis that use-value justifications must be subservient to the protection of a property rights regime. Steel correctly notes that this argument fails to take into account the possibility that D can himself claim the protection of the property rights regime on the grounds of his possessory interest in the shirt (Steel, above n 175, at 729). Furthermore, it could be argued that if the shirt is in fact being thrown out, then it is being abandoned, and that the property rights regime no longer provides protection for V (and thus D's possessory interest takes precedence).

178. See, eg, Smith's Law of Theft, above n 22, at [2.271] fn 453 and accompanying text, citing, inter alia, Small[1987] Crim LR 777.

179. Cf Griew, above n 33, at [2.101]: an honest belief that goods were abandoned can negative the ‘intention to permanently deprive’ requirement of the theft offence.

180. [1987] Crim LR 777.

181. (1988) 86 Cr App R 170 at 171.

182. (1912) 7 Cr App R 266.

183. [1952] 1 Lloyd's Rep 179.

184. (1988) 86 Cr App R 170 at 172.

185. [2002] EWCA Crim 832.

186. Ibid, at [3].

187. Ibid, at [24].

188. Ibid, at [26]. See also Smith's Law of Theft, above n 22, at [2.279].

189. See above, text following n 24.

190. See above, text accompanying nn 55–66.

191. See above, text accompanying nn 79–84.

192. See above, text following n 100.

193. JC Smith ‘R v Ghosh– case commentary’[1982] Crim LR 608 at 610.

194. See above, text accompanying nn 85–98.

195. Charles[1976] 1 All ER 659 at 666. See also Griew, above n 33, at [2.122]–[2.123] arguing that the vagueness of dishonesty means that the issue is determined by ex post facto reasoning based on subjective notions of wickedness, which is an ‘objectionable principle’.

196. See above, text accompanying nn 185–188.