Do Freegans Commit Theft by Sean Thomas - Essay Example

Freeganism in Dr. Thomas’ article; Do Freegans commit theft? Introduction Freeganism is a strategy in which a person acquires some goods or property without paying for it on the assumption that it has been abandoned. This paper provides a critical analysis of Dr. Sean Thomas article: ‘Do Freegans commit theft?’ to assess whether Freegans have valid defences against theft charges and also highlights the main arguments that Dr Thomas raises. Freeganism is an anti-consumerist movement whereby the economy part of consumption is eliminated leading to acquisition of property without paying for it. Freegans target all goods including the organic and inorganic and all foodstuffs. The main goods targeted by the Freegans have the obsolescence factor which is relative based of technological or organic elements. The basis for Freeganism is the willingness or ability to use commodities that other people consider obsolete. Their aim is to acquire the commodities without paying for them through methods such as barter or bin-diving. The main question of discussion in this paper is thus; Do Freegans have valid defences against theft? Freegans defences against Theft Charges The most common form of Freeganism is bin-diving. Bin-diving is described as the act of acquiring commodities that have been disposed as rubbish by other users for personal use. Since Freeganism does not involve exchange of money, queries arise over the ownership of the property involved. As a result, a Freegan may be vulnerable to conviction of larceny1. It is thus necessary to analyse the defences that such a person can present if convicted. The defences of a Freegan are based on two elements; abandonment and dishonesty. Abandonment and dishonesty If a Freegan can proof that the property in consideration was abandoned and that he or she was honest, then theft charges will not prevail. The Theft Act 1968, s 1(1) defines the offence of theft based on three main elements. One of them is that there must be commodities that can be stolen, the aspect of appropriation and the intentions to permanently maintain possession of the goods2. All these are present in the case of bin-diving leaving the Freegan with the only options; proving abandonment and honesty3. Law of Abandonment Abandonment is defined as the act of disposing goods in such a way that one has no control over them or further follow-ups over the goods4. The objective of categorising theft as a crime is to safe-guard property owner from any losses that arise from a thief meddling with the goods and any interests there-in. A thin boundaries lies between loss and abandonment and is thus crucial to determine whether goods were lost or abandoned when determining whether a Freegan has stolen. Pollock and Wright define abandonment as an act of giving up the possession of property without giving any indications of putting a person under the care of such property. Economic value defence Abandonment is dependent on the value of goods under considerations. For instance, in the case of R v Peters it was ruled that the jewellery could not be abandoned because it was of high value5. Bentinck Ltd v Cromwell Engineering Co, the jury ruled that a damaged car was abandoned because the hirer, a Mr Faulkner disappeared and left the car in a garage after assessing the liability of repairing it. The value of the items in question is thus significant in proving abandonment. This is very crucial in Freegans defence especially those involved in bin-diving for foodstuffs. It is unlikely that property of high value will be found in rubbish bins outside shops and cafes. Goods found in such bins will have been disposed because they lack any economic value to the original owners. Such goods may have reached sell-out dates and are not economically viable possibly due to technological obsolescence. The point of economic viability is thus one of the defences of a Freegan. Time factor v. Economic value Freegans can present defence on the bases of duration of abandonment. Though economic value aspect is a strong defence, it does not cover all Freegans because some of them are involved in goods that have economic value and can thus be described to have been lost rather than abandoned. Simester6 and Sullivan define abandonment as ceasing possession of commodities or physical control over them without showing intents of reverting to them or intentions of preventing other people from using them7. Although proving that a person has lost control over property is easy, it is difficult to deduce their intentions. In R v Woodman the court of Appeal ruled that it is possible for a party to own property that it does not know of its existence8. In R v William Rowe79 and R v William White, The Court of Criminal Appeal nullified a theft charge based on the fact that the stolen iron had been left idle for 50 years9. The canal company left iron lying on the bottom of a piece of land for a lengthy period based on the assumption that land owners have control over all items in their land. Similarly, this can be a defence for the Freegans that the items, though or reasonable economic value they have been abandoned because they have been left for a long time. If a Freegan can prove the duration of time, then a theft charge will not prevail. Another factor that comes into play in this argument is honesty. Just like the case of William White, if the Freegan belief that the property was abandoned and took it without malice intents, then such a person is not guilty10. Dishonesty Freegans can present defence on theft charges based on proof of honesty. It is necessary to proof honesty in situations where abandonment claims are inconclusive. Dishonesty is significant in determining larceny crimes11. The Theft Act 1968 provides three instances of honesty in theft claims12. The first is that an act is honest if appropriation of the goods is on the conviction that one has the right to dispossess the owner of the property and the second if it is on the belief that the owner will approve of knowledge of the process and lastly, if appropriation is based on the conviction that the property owner cannot be traced trough logical processes. A jury thus needs to assess all these situations in addition to a Freegan’s state of mind to determine honesty. A Freegan can thus present a defence based on the aspects of dishonesty under the following divisions; Belief in right to dispossess If a Freegan acquires property on the conviction that he has a legal right as per the stipulations of the law to dispossess the owner of the property in question, then such an act will be classified as honest appropriation13. This belief does not need to be logical; it just needs to be acceptable and legal. It should be legal right and not moral right because taking anyone’s property without approval is a crime regardless the reasons for such an act. The moral right is not completely irrelevant because in the case where a property owner disposes something and later rethinks and seeks to recover it, then the present owner can be deemed the rightful based on the assumption that he acquired possession based on moral right. Belief that the owner will approve If for any reason a Freegan beliefs that the property owner will approve appropriation of property, then the Freegan’s act is honest14. This defence is crucial in eliminating trivial prosecutions such as roommates sharing food items and prosecutions on rubbish that has been disposed. In the later case, it should be assumed that a person who disposes rubbish does not care who takes possession of the same. The Freegan must however be careful not to be involved in bins whose assess has been restricted or denied. In such a case the aspect of honesty will cease to apply. Belief that the owner cannot be traced Where a Freegan appropriates property based on the conviction that the owner cannot be traced via reasonable means, then the appropriation is legal15. An honest belief will be adequate defence and it does not to be logical. A Freegan for instance cannot claim that the owner of a rubbish bin outside a house with a label of the house number cannot be found. In such a case, the Freegan will be dishonest and will be required to provide other defences or face prosecution. The Ghosh Test The Ghosh Test can also be used to prove dishonesty. For instance, in Feely, the Court of Appeal ruled that if the defendant acted in such a way that he upset the reasoning of a normal decent person, then the person is dishonest16. This test provides that if the Freegan believes that his actions are in line with the reasoning of a normal person, then he is honest. A Freegan can thus present this defence if he feels that there is a possibility that he committed the act freely and honest and within the limits of a normal person. Dr Thomas Key Arguments Significance of the Ghosh Test Dr Thomas critically analyses the issue of the Ghosh test with the intention of highlighting its importance or relevance in determining dishonesty17. The Court of Appeal in Feely observed that if a defendant acted in a manner that contravenes the reasoning of a normal person, then that person acted in dishonesty. The test was open in that if the person feels that what he did was within the logical reasoning of a normal person, then he acted in honesty. Since honesty was crucial in determining Freegan theft cases, then this was a significant achievement in this section of the law. He however noted that this defence should only be presented where the defendant himself feels that there was an aspect of honesty in doing what he did in the sense that it was within the expectations and logical reasoning or an ordinary man. In determining honesty based on these guidelines, the facts of each case should be crucial.18 For instance, a bin-diver who goes to people’s rubbish bins at night can raise questions of dishonesty. The interaction between abandonment and dishonesty Dr Thomas believes in cases concerning abandoned property, the courts have not adequately analysed the interrelationship between abandonment and dishonesty. He feels that the courts should address this relationship based on Freegan defences and the consequences of the ghosh test. This failure of the courts to address the issues creates doubt in this section of the law and leads to confusion in the determination of theft by Freegans. He notes that in determination of honesty, a person’s state of mind should be tested and not deduced from their conduct. This is because behaviour alone without state of mind test results is not adequate to determine dishonesty. This implies that for instance the fact that if a Freegan has taken commodities from a bin, this is not enough prove of honesty. Dr Thomas notes several cases that proceeded to the court of appeal in an attempt to get accurate interpretations and rulings. Ellermans Wilson Line Limited v Webster and R v Wood are some of the examples. In the Ellermans Wilson Line Limited v Webster, the courts did not consider the aspect of dishonesty and had ignored it as part of defence19. However, The Court of Appeal held that an honest belief that commodities were abandoned is a valid defence. It also added that such a belief does not need to be reasonable to be admitted. Environmental Justifications Dr Thomas argued that the environmental justification can argue for and against bin-diving as a form of Freeganism. He claimed that bin-diving would be restricted in situations where the rubbish disposed is a risk or harmful to others. It can also argue for bin-diving as the Freegans can claim that their intention is to clean the environment of what is not required by other people. Privacy Argument Bin-diving can be described as an offence on the basis of privacy. In Williams v Phillips the defendant who was a rubbish collector and took into possession a commodity that he found in the rubbish bin was convicted of theft. It was argued that possibly the initial property owner had disposed the property in the rubbish bin with the intention in maintaining his privacy in the sense that the defendant could have possibly collected the commodity to reveal important information to newspapers or confidential material to third parties. The privacy argument does not always apply to cases of Freegan bin-diving in situations where the disposal of property containing material was by error or design. In such circumstances it is difficult to deduce the intentions of the Freegan. For instance, in a situation where a supermarket disposes some material, it is highly unlikely that the information from such material would be private and beneficial to the Freegan bin-diver. This was argued in the case of California v Greenwood which involved an unnecessary search of Greenwood’s rubbish left at the side of a path. While giving a majority opinion, Justice White held that it was unnecessary to conduct such an exercise as material left at the road side could be accessed by children, animals or any person passing by and thus the privacy argument was invalid20. Variation between Loss and abandonment Dr Thomas raises a significant argument to clarify the disparity between loss and abandonment as core elements in convicting Freegans. A land owner can have intentions of controlling items in his land but the manner in which it is done can lead to the aspect of abandonment. Just like the case of R v William White, leaving property for too long can trigger abandonment. However, to an employee in a farm, it should be clear to him that all the property in the farm belongs to the employer. Lord Alverstone CJ admitted that courts have a difficult task of determining whether goods are lost or abandoned. It is thus the duty of the appeal courts to critically analyse case-by-case21. Dr Thomas further notes that the aspect of honesty is crucial in determining Freegan cases. He notes the case of Hibbert v McKiernan where the defendant was found guilty of a theft charge of golf balls after admitting that he knew he had no right to pick the balls for sale. He was convicted on the bases of dishonesty. Conclusion This paper has critically analyzed various issues concerning Freeganism in Dr Sean Thomas article; Do Freegans commit theft? It has outlined various defences that Freegans can present in case of a theft charge. All the defences that Freegans can present are based on abandonment and dishonesty. It has been noted that a prove of honesty is very significant in giving theft charge defences over Freeganism. It is necessary for a Freegan on a theft charge to prove abandonment of the goods appropriated. Abandonment is the act of disposing goods in a manner suggesting end of control over them. A Freegan can argue that the goods appropriated were abandoned and had no economic value. In case where such goods had significant economic value, then the Freegan can introduce the element of period of abandonment. If the period is reasonably long, then this will be a valid defence. The defence should be able to adequately prove abandonment because abandonment can be mistaken to be lost goods or vice versa. Other defences that can be used are proves of honesty22. A Freegan on theft charges can use the four provisions: an act is honest if appropriation of the items is on the conviction that one has the right to dispossess the owner of the items and the second if it is on the belief that the owner will approve of acquaintance of the process and if appropriation is based on the conviction that the property owner cannot be traced and lastly the ghost test. Dr Thomas also raises several key arguments including failure of courts to address the interaction between abandonment and dishonesty, significance of the ghost test, variation between Loss and abandonment, privacy argument and environmental justification for and against Freeganism. Bibliography StrasserWaste and Want: A Social History of Trash (New York: Henry Holt, 2000) pp 191–201 and pp 274–278 Smiths Law of Theft, above n 22, at [2.284]. Theft Act 1968, s 2(1)(a). 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. Ellermans Wilson Line Limited v Webster[1952] 1 Lloyds Rep 179 at 180 (Lord Goddard CJ) Ellermans Wilson Line Limited v Webster[1952] 1 Lloyds Rep 179; R v White (1912) 107 LT 528; R v Peters (1843) 1 Car & K 245; R v Reed (1842) Car & M 306. Ibid AP Simester and GR SullivanCriminal Law: Theory and Doctrine (Oxford: Hart Publishing, 3rd edn, 2007) p 441. R v Wood[2002] EWCA Crim 832, [2002] All ER (D) 08 (Apr) at [25] 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. A Reed and B FitzpatrickCriminal Law (London: Sweet & Maxwell, 3rd edn, 2006) p 444. E Griew ‘Dishonesty: the objections to Feely and Ghosh’[1985] Crim LR 341 at 341–342. Theft Act 1968, s 2(1)(b). Section 3(b)(i) Belief in the right to deprive. Section 3(b)(ii) Belief that the owner consents. Section 3(b)(iii) Belief that the owner cannot be found using reasonable means. Section 3(b)(iv) The Ghosh test. Section 3(b)(iv) The Ghosh test. Cf Feely[1973] QB 530 at 541 (Lawton LJ). Ellermans Wilson Line Limited v Webster[1952] 1 Lloyds Rep 179 at 180 (Lord Goddard CJ) R v Wood[2002] EWCA Crim 832, [2002] All ER (D) 08 (Apr) at [25], following R v Small[1987] Crim LR 777. Possession of “lost” goods’ (1920) 20Col L Rev780 R v Edwards and Stacey (1877) 13 Cox CC 384: Read More