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SCENARIO Mr White was taking a short-cut across the local golf course when he stumbled on some golf balls lying in the rough. He looked around for any golfers on the course but couldn’t see anyone so he surreptitiously picked up the balls and put them in his pocket. As he was exiting the golf club grounds he was stopped by a security guard and asked if he was a member of the club to which he said “No”. He was then asked if he was removing any property from the course to which he also said “No”. The security guard asked him to empty his pockets at which point the balls were discovered. The police were called and Mr White has been charged with theft under the Theft Act. Mr White says this is absurd – the balls had been abandoned and so clearly weren’t someone’s “property”.

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WORKING THROUGH USING WESTLAW UK What is the principle in this case? We need to find out if it is possible to steal property which has been abandoned? If so then what is the test to define “abandoned property”? When you have a question, the best place to start on Westlaw UK is with a Natural Language search. From the Home Page of Westlaw UK, select Natural Language and then enter can it be theft if property is abandoned, and then click Search

As you can see we have retrieved a number of full cases and journal articles. Your results are ordered by relevance and as you can see from the Subject and Keywords, they all seem very relevant to our situation.

Click in to view the first article abstract. Considers the principles that may be applied by the courts in theft cases to determine the existence of a third party's proprietary interest in  abandoned goods. Compares the approach adopted in the Divisional Court judgment in Hibbert v McKiernan, a case concerning the alleged theft of lost golf balls, to that used in civil actions where owners or occupiers of land claimed title to goods  abandoned on their   property. The case of Hibbert would seem entirely relevant, so use the link from the article to access that case. This case would seem entirely relevant on its facts. However it is a case from 1948 and makes reference to the Larceny Act which is no longer in force (which is why there is no live link in the legislation cited section of the Analysis document).

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Just because the legislation this case is based on is no longer in force does not mean that we can’t use as a starting basis for our research. We can start by seeing if any (more recent) cases have cited or followed this case so click on the Key Cases Citing heading. Here we can see that the case of R v Rostron followed the Hibbert case in 2003 so let’s have a look at that case. The abstract doesn’t give us enough detail about the ‘abandonment’ issue so click into the full text Transcript.

This case is exactly relevant to our situation as our defendant was not dressed as a frogman in the middle of the night! However there are some useful points to note:

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Of course, in order to bring home a charge of theft the Crown had to establish that gold balls were in the terms of section 1 of the Theft Act “property belonging to another”, and property belonging to another as further defined by section 5: It is perhaps interesting, although by the way, to remind ourselves of what was said by Potter LJ in giving the judgment of the Court in the appeal of the appellant Collinson against sentence. He said in passing: “One must observe at this stage that it is difficult to see how the appellant could genuinely have believed the golf balls had been abandoned. No doubt they had been abandoned by their original owner, but as every law student learns when studying the criminal law, on the authority of a well-known case called Hibbert and McKiernon, for the purposes of theft the owners of a golf courses are regarded as having the property and control of lost balls for their own purposes.”

So this recent case followed the principle in Hibbert with regard to whether golf balls on a golf course could be classed as abandoned. This case also points us towards the Theft Act so we should link to that to get the statutory basis for our scenario. Click to access section 5.

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Subsection (1) is the relevant provision here:

(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest). Now we have some case law and the statutory basis, it is probably worth doing some wider reading. Click the Books link on the left-hand side of the screen Click the Books link on the left-hand side of the screen, and scroll down to find Books discussing provision 5(1). Click on the first link – a paragraph from Archbold discussing “possession or control”. Archbold gives us some useful information (and links to case law):

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• There is no ground for qualifying the words “possession or control” in any way. It is sufficient if it is found that the person from whom the property is appropriated was at the time in fact in possession or control: It is not necessary to prove that the person’s possession or control was lawful: A person in control of a site, by excluding others from it, is prima facie also in control of articles on that site, it being immaterial that he was unconscious of their existence

So it may be useful to ask if there was a sign excluding non-members from the golf course. If so then that reinforces the claim that the golf course had ‘control’ of any golf balls on the course. Just before we finish it is worth running a search in Current Awareness to check recent developments. Run a search for theft /s abandon!

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This will search for the term theft within the same sentence (/s) as abandon, abandoned, abandons, or abandonment. PRINCIPLE OF LAW The Theft Act 1968 states that property can be stolen if it “belongs to another”. Section 5(1) says that if a person has “possession or control”, then the property belongs to them. The cases of Hibbert and Rostron refer to the theft of golf balls and laid down various tests and testimonies in relation to “abandoned” golf balls:

The fact is that the theft alleged was of golf balls from a golf course; on every course balls must be lost from time to time, to be retrieved when the grass is cut or when someone has the time to look for them. Clearly there is no licence from the club to all and sundry to go on to the course and take what they can find, and the facts show that the club did mean to exclude these pilferers, though the officials of the club did not know at any given moment the position or number of balls that might be lying on their property (Hibbert)

It was further found that the appellant, after giving a false name and address and denying that he was in possession of any golf balls, had when found in possession of eight of them admitted that he knew he had no right to take them. (Hibbert)

In view of the finding of fact that the balls had been abandoned, the main question argued in this case was whether, before the appellant picked up the balls, the members of the club had acquired of them a possession of such a nature that interference with it was capable of becoming the basis of a charge of larceny. ... I think it must appear from the facts found that they intended to exclude others from interfering with the balls, and that they had over them a degree of power which was sufficient for the purpose of giving effect to such intent. (Hibbert)

REMEMBER Just because you have found a relevant case which is still ‘good law’ does not mean that you should use it in court. Always check deeper to ensure that the cases and legislation that case relies on is still good law. Use the status icons, terms in context and the case digests to quickly scan materials to see if they are relevant or not. Read the cited/citing material – you may find cases which are even more pertinent to your facts. Use the filters on the results screen to narrow down your results. Check the most current material (in Current Awareness) as something may have happened today or yesterday which could affect your case. Check details of any pending amendments – you should be aware of what the law will be, as well as what it is now.

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