1. Ormerod, D (ed) Smith and Hogan Criminal Law (Oxford: Oxford University Press, 11th edn, 2005) p 674.Google Scholar

2. Theft Act 1968, s 1. On the meaning of ‘belonging to another’, see Theft Act 1968, s 5, and, generally, Ormerod, above n 1, pp 674–692; Simester, AP and Sullivan, GR Criminal Law Theory & Doctrine (Oxford: Hart Publishing, 2nd edn, 2003) pp 443–451;Google Scholar ch 4.

3. Smith, ibid, at 2–17a, citing R v Joiner (1910) 4 Cr App Rep 64, Noon v Smith [1964] 1 WLR 1450 and Hibbert v McKiernan [1948] 2 KB 142.

4. Smith, above n 2, at 2–17d. Compare both Hibbert v McKiernan, above n 3 (discussed below) and the opinion of JC Smith [1982] Criminal Law Review 607.

5. The burden of proving that property belonged to another is always on the prosecution: Ormerod, above n 1, p 674.

6. The notion of abandonment can go to ownership or possession of goods, or to both of these: Bridge, M Personal Property Law (Oxford: Clarendon Press, 2003) p 22.Google Scholar For our present purposes, only the abandonment of ownership is significant, since only in that case does a doubt arise as to whether goods allegedly stolen are property belonging to another within the meaning of the Theft Act 1968. Where possession alone is relinquished, ownership is retained by the abandoner, and property can be laid in him (even if his identity is not known) for the purposes of a prosecution for theft.

7. Property texts offer competing and opposing arguments on this seemingly basic proprietary question. In English Private Law, for example, it is suggested that the stronger view is that divesting abandonment of chattels is not possible: Birks, PBH (ed) English Private Law (Oxford: Oxford University Press, 2000) at 4.567–4.569 Google Scholar (WJ Swadling). For a fuller discussion with an argument to the contrary, see AH Hudson ‘Abandonment’ in and compare the view of Bridge, above n 6, pp 22–23.

8. See especially R v Rostron[2003] EWCA Crim 2206, [2003] All ER (D) 269, discussed in detail below. Other useful examples are provided by Williams v Phillips (1957) 41 Cr App Rep 5, Ellerman’s Wilson Line v Webster[1952] 1 Lloyds Rep 179, Hibbert v McKiernan[1948] 2 KB 142, and R v Edwards and Stacey (1877) Cox CC 384. In a famous article on abandonment, Professor Hudson criticised the authoritative works of property, commercial law and legal history for passing over in silence ‘the long standing opinion in criminal law that divesting abandonment is possible’: Hudson, AH ‘Is divesting abandonment possible at common law’ (1984) 100 LQR 110 Google Scholar at 113.

9. Smith, JC The Law of Theft (London: Butterworths, 8th edn, 1997) p 37.Google ScholarPubMed

10. See generally Ormerod, above n 1, p 690.

11. Williams v Phillips, above n 8 (an owner leaving household waste in refuse bins for collection did not thereby intend to abandon the contents of the bins, but rather intended them to be taken by the collecting authority); R v Edwards and Stacey ibid (diseased pigs buried by their owner were not abandoned, the owner intending that no person should make use of them).

12. [2003] EWCA Crim 2206, [2003] All ER (D) 269.

13. The court noted considerable commercial activity in the recovery and resale of ‘lake balls’ from the hazards of golf courses. Mantell LJ did not doubt that in many cases such trade could be carried on quite legitimately: ‘Indeed, we are told that there are companies with very considerable turnovers who deal in…lake balls and one can imagine all sorts of ways in which such property could come on to the market without any prior offence having been committed’: ibid, at para [6].

14. Ibid, at para [16], Mantell LJ giving the judgment of the court. Accurately this is the dictum of Potter LJ, delivering judgment in the second defendant’s appeal against sentence. It is expressly approved and reproduced by Mantell LJ at the given paragraph.

15. [1948] 2 KB 142.

16. For very recent example of such a citation, see Dugdale, A et al (eds) Clerk & Lindsell on Torts (London: Sweet & Maxwell, 19th edn, 2005) pp 17–49 Google Scholar, though the point is doubted there at footnote 24. Also see the opinion of Donaldson LJ in Parker v British Airways Board[1982] QB 1004 at 1009 and DR Harris ‘Possession’ in The erroneous nature of this claim is considered briefly below.

17. [1948] 2 KB 142.

18. Ibid, at 144.

19. This was replaced in England and Wales by the Theft Act 1968. In the Republic of Ireland, the 1916 Act is still in force. On larceny generally, see McCutcheon, JP The Larceny Act 1916 (Dublin: Round Hall Press, 1989)Google Scholar and ch 51.

20. Most of these terms received further definition in the legislation itself. In particular, the term ‘owner’ included ‘any part owner, or person having possession or control of, or a special property in, anything capable of being stolen’ and ‘everything which [had] value and [was] the property of any person…[was] capable of being stolen’: s 1(2)(iii).

21. Pollock, F and Maitland, FW History of English Law vol 2 (Cambridge: Cambridge University Press, 1898) p 498.Google Scholar

22. McCutcheon, above n 19, p 25; Edwards, J Possession and larceny 1950] 3 Current Legal Problems 127 CrossRefGoogle Scholar.

23. Turner, above n 19, p 907.

24. See, generally, Pollock, F and Wright, RS An Essay on Possession in the Common Law (Oxford: Clarendon Press, 1888), especially pp 216–222 Google Scholar for examples of constructive or indirect takings.

25. Section 1(2)(i)(d). The other extensions found here provided for the offences of larceny by a trick, larceny by intimidation and larceny under a mistaken transfer. All of these latter cases are ‘less obviously direct’ than the central case of trespassory taking because they involve an apparently consensual transfer of possession from prosecutor to felon, which consent is occasioned by the trick, intimidation or mistake.

26. [1948] 2 KB 142 at 149 and 151–152.

27. Ibid. For an argument to the contrary, see Edwards, above n 22, insisting that proof of the identity of prior possessor was a crucial element of a larceny prosecution.

28. ‘We are agreed that the golf balls in question were lost by the original owners in such circumstances that they must be held to have been abandoned’: [1948] 2 KB 142 at 151. On appeal to the Divisional Court, both the accuracy and the necessity of this assumption were very much doubted: see below.

29. Ibid, at 148–149 per Lord Goddard CJ.

30. ‘I gladly pay tribute to the gallant and laborious effort of these justices to resolve the conflict [viz of decisions in the law of finds]. Probably no court of summary jurisdiction has ever before grappled so manfully with a really difficult question of law or stated their conclusions more clearly’: ibid, at 149 per Lord Goddard CJ.

31. Although it was assumed arguendo to be correct: ibid, at 149 and 151–152.

32. Ibid, at 151–152.

33. Ibid, at 149 per Lord Goddard CJ.

34. Ibid, at 151 per Humphreys J.

35. Ibid, at 149–150 per Lord Goddard CJ, at 151 per Humphreys J, at 152 per Pritchard J.

36. Ibid, at 149 per Lord Goddard CJ.

37. (1851) 21 LJQB 75.

38. (1886) 33 ChD 562.

39. [1896] 2 QB 44.

40. [1945] KB 509.

41. [1948] 2 KB 142 at 152.

42. Ibid.

43. ‘To describe such a person as having any sort of property in the balls would be fantastic’: ibid, at 151.

44. Ibid, at 152.

45. Ibid, at 149–150. The words ‘special property’ appeared in the Larceny Act 1916 and one holding such an interest in goods was expressly regarded as being the ‘owner’ of those goods within the meaning of s1(1) of that Act: see s1(2)(iii) and the comments below. By contrast, the Theft Act 1968 does not employ the term ‘special property’, preferring the more general formulation that property belongs to one ‘having possession or control of it, or having in it any proprietary right or interest’ (s 5).

46. Any other interest necessarily takes effect in equity. See generally Goode, R Commercial Law (London: LexisNexis, 3rd edn, 2004) pp 31–38;Google Scholar

47. Sale of Goods Act 1979, s 61. See generally Bridge, M The Sale of Goods (Oxford: Oxford University Press, 1998) pp 43–45.Google Scholar

48. Goode, above n 46, 199.

49. Note that the point is not uncontroversial. Possibly the kind of right arising in finders and other non-consensual possessors would be better understood as a general property (or ownership) interest, qualified only by the defective title of the interest holder. This seems to be the view taken by Battersby [2001] JBL 1 at 2, who considers at least that a finder’s right can be the subject of a contract for sale. Additional analogical support for this view can be derived from the law of real property, where adverse possessors of land have their own fee simple estate from day one, and sensibly can be regarded as ‘independent owners’ rather than as the holders of a limited possessory interest; see AM Honoré ‘Ownership’ in Guest, above n 16, p 140.

50. (1859) Bell 93, 23 JP 117, 169 ER 1180.

51. Pollock CB, Wightman J, Williams J, Channell B, Byles J and Hill J.

52. (1859) Bell 93 at 95.

53. [1948] 2 KB 142.

54. Ibid, at 146–147. The relevant passages reveal Holmes’ thoughts on the legal structure of possession, and the concepts of animus possidendi and corpus possessionis, and particularly as to the former the view that the discovered intention of an occupier of land to exclude the public from his land is sufficient to found a possessory interest in things lying upon that land; see generally Holmes, OW The Common Law (New York: Dover Publications, 1881) pp 216–224.Google Scholar

55. [1948] 2 KB 142 at 149–150.

56. [1966] 1 QB 103.

57. It is worth noting that the Queen’s Bench reached this result with considerable reluctance. The court faced long-standing and exactly relevant binding authority on this point (R v Matthews (1873) 28 LT 646, 12 Cox CC 491), and given that it was dealing with a matter involving the liberty of the subject, preferred to leave questions as to the justification of the rule to Parliament; see [1965] 2 All ER 741 at 742–743 per Sachs J. The Theft Act 1968 avoids this difficulty by not requiring a dishonest taking. It is clear from s 3(1) of that Act that the defendant can appropriate an asset, notwithstanding that he has taken it initially in an innocent manner, by making a later assumption of the rights of an owner; see generally Ormerod, above n 1, pp 694–695. But, in any event, the present point is that Thompson provides an example of a situation where a taker is not also a felon and, so long as this general possibility remains, the case serves our immediate purpose.

58. On conversion generally, see Dugdale, A et al (eds) Clerk & Lindsell on Torts (London: Sweet and Maxwell, 19th edn, 2005)Google Scholar ch 17 (A Tettenborn).

59. [1996] QB 335.

60. Ibid, at 346 (emphasis added). Waverly itself was a case involving the application of the first of these propositions. The defendant excavated a medieval gold brooch buried in land to which the claimant held the freehold and of which it was in actual occupation. The claimant was held better entitled to the brooch. The leading case on the application of the second rule is probably Parker v British Airways Board [1982] QB 1004 (CA), discussed briefly below.

61. Pollock and Wright, above n 24, p 41, considering Elwes v Briggs Gas Co (1886) 33 ChD 562.

62. The difference between the rules lies in what the person asserting the title is required to prove. In the case of objects found on land, the landowner must prove, additionally to his physical occupation of the land, a sufficiently manifested intention to control objects found thereupon. That a landowner does not need to prove this element when an object is found beneath his land may be regarded simply as a concession. His intention to control the object is so obvious as to speak for itself. Any interference with the object would involve as a preliminary a physical interference with the land itself. Since landowners can sensibly be presumed to intend to exclude physical interference with their land, they need not prove to a court that they have manifested such an intention. Compare the dicta of Donaldson LJ in Parker v British Airways Board [1982] 1 QB 1004 at 1019.

63. Pollock and Wright, above n 24, pp 11–16; Holmes, above n 54, pp 216 and 220. Recently in the House of Lords, Lord Browne-Wilkinson did not doubt the necessity for the concurrence of these two elements: ‘there has always, both in Roman law and in common law, been a requirement to show an intention to possess in addition to objective acts of physical possession’ (JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at 435).

64. [1982] QB 1004 (CA), noted [1982] CLJ 242 (A Tettenborn); [1982] MLR 683 (S Roberts).

65. [1982] QB 1004 at 1009.

66. Unless of course the taker can set up a title through the true owner or someone who has an interest prior to the interest of the landowner that arises at the point of burial. But, in that case, the taker sets up a derivative title and does not in any real sense rely on his taking; see generally Moffatt v Kazana [1969] 2 KB 152.

67. See the now well-known case of Riggs v Palmer 115 NY 506, where the court, mindful of this maxim, ruled that the law did not allow a grandson to take his grandfather’s inheritance, the former having murdered the latter; and the comments of Dworkin, Ronald in Law’s Empire (Oxford: Hart Publishing, 1998) pp 15–20.Google Scholar

68. JA Pye (Oxford) v Graham[2002] UKHL 30, [2003] 1 AC 419; Asher v Whitlock (1865) LR 1 QB 1. On the doctrines of adverse possession generally, see Harpum, C (ed) Megarry and Wade’s The Law of Real Property (London: Sweet & Maxwell, 6th edn, 2000)Google Scholar ch 21.

69. Limitation Act 1980, Sch 1, para 1.

70. At least this was the orthodox position at common law. The law of adverse possession generally is subject to the pending decision of the Grand Chamber of the European Court of Human Rights in JA Pye (Oxford) Ltd v UK (Application No 44302/02), arising from JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419.

71. Certainly its correctness is disputed; see WJ Swadling in Birks, above n 7, paras 4.423–4.427.

72. [2001] 1 WLR 1437 (CA); noted Battersby, G Acquiring title by theft’ (2002) MLR 603.CrossRefGoogle Scholar

73. Ibid, at 1439.

74. Ibid, at 1441.

75. Ibid. Lightman J prefixed this conclusion with a useful discussion on the effect of wrongdoing and illegality on civil relationships generally, largely based on Tinsley v Milligan [1994] 1 AC 340 (HL) and the more recent decision of the Court of Appeal in Webb v Chief Constable of Merseyside [2000] QB 427. Both Webb and Costello were followed by the Court of Appeal in Gough v Chief Constable of West Midlands Police [2004] EWCA Civ 206, (2004) 148 SJLB 298 at [15] and [29], though Potter LJ expressed dissatisfaction at the availability of civil actions for recovery goods obtained unlawfully: ibid, para [48].

76. Compare the New Zealand case of Tamworth Industries v Attorney-General [1991] 3 NZLR 616, where the claimant failed to establish title to moneys found on land demised to him because he had not exhibited the required degree of intention to control the premises, and not because of strongly held suspicions that the moneys had been raised by the claimant through the sale of cannabis.

77. [2003] EWCA Crim 2206, [2003] All ER (D) 269.

78. Ibid, para [1].

79. Ibid.

80. Ibid, para [13] per Mantell LJ.

81. [1896] 2 QB 44.

82. Indeed, an avenue of argument is open against Waverly itself. In that case, in the face of strong opposition from counsel for Mr Fletcher, Auld LJ took pains to defend the continued distinction between objects found in land as opposed to on land: [1996] QB 334 at 345. But it is not clear that any of the reasons he gives in support of the ‘in land’ rule would apply to the instant problem. The defendants are already trespassers at the time of the taking; removing balls from water involves no interference with or damage to land (at least not to the same extent as the digging paradigm); and it is quite probable that many of the balls driven into the water had been lost recently. If the rule applied to the facts of Rostron achieved none of its objectives, this is an argument for it not applying in the face of the evidential and authoritative doubts as to whether the balls were found in or on land.

83. Waverly BC v Fletcher [1996] QB 335 at 346; Parker v British Airways Board [1982] QB 1004; Hibbert v McKiernan [1948] 2 KB 142.

84. [1948] 2 KB 142 at 143.

85. Ibid, at 151 per Humphreys J, at 152 per Pritchard J.

86. [2003] EWCA Crim 2206, [2003] All ER (D) 269 at [9].

87. [1982] QB 1004 at 1019 per Donaldson LJ, at 1020 per Eveleigh LJ.

88. Ibid, at 1020.

89. [2003] EWCA Crim 2206, [2003] All ER (D) 269 at [14].

90. Ibid, para [11].

91. Compare Smith, JC Civil concepts in the criminal law 1972 Cambridge Law Journal 197 CrossRefGoogle Scholar, where the learned author considers even the fuller reasoning of the Divisional Court in Hibbert to have been a ‘cavalier’ approach to a criminal appeal.

92. [2003] EWCA Crim 2206, [2003] All ER (D) 269 at [17].

93. A system avowedly considered to be ‘of great comfort to prosecutors’: Smith, above n 2, at 2–17b.

94. Which, the possibility of divesting abandonment apart, they certainly are at common law. It is trite that casual loss of goods causes no change in their proprietary status. As it was put long ago by Coleridge J, ‘A man who loses anything, does not thereby lose his property in it, and the finder is bound to restore it to the owner, if possible’: R v Reed Car & M 306 at 308.