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. As such, taking garbage that does not belong to you is theft. You do not abandoned ownership when leaving trash at the corner of your driveway for pickup and disposal by the government authority. 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. Click here.

 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. As such, taking garbage that does not belong to you is theft. You do not abandoned ownership when leaving trash at the corner of your driveway for pickup and disposal by the government authority. 

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.