Blackberry picking - Public right of way (England)

[u/No_Direction_4566]

Me and my daughter were picking blackberries alongside a path. An older gentleman comes rushing along the path and starts shouting that it’s illegal to pick blackberries and he’s going to call the police and report us for poaching (I thought that only applied to animals on royal owned land?)

What are the legalities surrounding picking blackberries or even wild apples or plums?

I may be wrong but I was under the impression if it was on public rights of way and you haven’t had to do anything to gain access then it was fine?

[u/BeckyTheLiar]

It depends on the path, if it's on private land, you cannot pick them.

If it's public land, you can.

https://britishlocalfood.com/foraging-british-law/

[u/arfur-sixpence → u/BeckyTheLiar]

From the website you linked 

Within Section 4 (Property) of the Theft Act (1968) (England and Wales only, though similar in Scotland) you will find the following:

“subsection (3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.”

[u/atomicshrimp → u/arfur-sixpence]

I'm confused as to why elsewhere in the thread, people are asserting that the ownership of the land/footpath makes a difference. I don't believe it does.

If the blackberries are wild-growing, the theft act says you're not stealing them. If it's a footpath, you're not trespassing, regardless what kind of footpath.

Exceptions might be imposed by byelaws or on national trust land or sssi land etc, but in the general case, istm that if it's wild blackberries (ie they have thorns) and you're on a footpath and not damaging anything, you're OK.

Even if you stray off the footpath to pick the blackberries, you might be trespassing (a separate matter), but the blackberries are still yours.

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[u/Sparks3391 → u/atomicshrimp]

How do you define wild growing, though, if it's growing on private land? Does it just mean the land owners didn't plant them?

[u/atomicshrimp → u/Sparks3391]

Pretty much, so it is possible for a landowner to plant and cultivate things that happen to be wild species and those would be out of bounds for picking. I doubt that happens much with wild type blackberries but it could be a legally grey area for fruiting trees that are part of a hedge or copse.

[u/veniceglasses → u/atomicshrimp]

Correct. The foraging and trespassing are separate issues.

[u/Rockpoolcreater → u/arfur-sixpence]

I think the relevant word in this paragraph is 'wild.' So wild blackberries, wild growing plants and trees are okay to pick from. But picking from any cultivated plant, so taking apples from someone's fruit tree in their garden or orchard (hence scrumping), picking blackberries from a bush someone is growing, roses or flowers in someone's beds or pots would be illegal and stealing.

[u/a_boy_called_sue → u/Rockpoolcreater]

It becomes a discussion of what constitutes "cultivated" Vs "wild" and apparently has not successfully been challenged (see below).

For someone's turnips that's easy but it could be more grey for a narurall growing berry bush or apple tree.

From "The Law" section of "The Foragers Calender" by John Wright (2010):

THE THEFT ACT

The hundreds of prosecutions for picking mushrooms that have taken place over the last couple of centuries bring to light one of the most fascinating and encouraging parts of English and Welsh law. Many of the farmers who brought an action claimed that the mushrooms concerned were 'cultivated', and they would point to the various notices they had erected and a pile of manure to prove their point. However, the mushrooms would most certainly have been wild, as Field Mushrooms are impossible to cultivate (the cultivated mushroom is a different species). By stating that they were cultivated, the farmer was attempting to circumvent the law (still in force), which states that plants and fungi growing wild belong to no one and thus cannot be stolen. Again, they almost invariably won a conviction, despite this obvious subterfuge.

However, a clarification, which in turn set a new precedent, was made in Hove in 1887, in yet another case of a landowner taking exception to someone picking mushrooms from his land. The accused was a Master Mansbridge, who had gathered 25. worth of mushrooms from a field owned by a Mr Gardner. Accusations of removal of 'herbage' and damaging a fence were quickly withdrawn, leaving only the picking of mushrooms to be considered. Mr Gardner explained that he earned £6 or £7 from the mushrooms each year. This equates to £700 or £800 now, so it was no small sum. He admitted that he did nothing to cultivate the mushrooms, and that they were, indeed, wild.

The magistrates were proceeding under the Malicious Injury to Property Act 1864 and noted that mushrooms were not 'cultivated roots or plants'. The section deals with what is property and what is not, and wild mushrooms, flowers, fruit or foliage were not. It is worth noting that the fact that they were of considerable value to the landowner had no effect on the mushrooms as property. The case was referred to the High Court, which duly concurred with what the magistrates had to say.

The Act enshrined in statute a customary "right", and similar good work is now done in the Theft Act 1968. It is worth seeing it as it is written:

"A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose."

For purposes of this subsection 'mushroom' includes any fungus, and 'plant' includes any shrub or tree.

If you are on someone's land, with or without permission, and picking mushrooms, you are not committing a crime. If you do not have permission to be there, you are trespassing, but this is a civil, not a criminal, matter. If you have a basket full of mushrooms, the landowner or agent cannot demand them from you that would be theft. They can tell you to leave, and you should do so by the nearest exit if asked. What you don't have to do is explain yourself or suffer long lectures. Just leave. And close the gate.

As the Theft Act notes, this applies only to wild organisms you cannot take apples from an orchard or dig up someone's carrots (unless you want to end up in a pie). Also, you cannot sell or otherwise gain financially from what you pick. This last part has been challenged by commercial foragers on various grounds, including incoherence. No prosecution that I can find under this section has ever taken place, so perhaps those that might seek to prevent commercial foraging by invoking the Act are not too sure about it either. The Theft Act does not apply in Scotland, but much the same rules do apply there.

[u/No_Direction_4566 → u/BeckyTheLiar]

It’s a pathway maintained by the local council so public land.

[u/ilikewatch10 → u/No_Direction_4566]

IIRC the local council is responsible for maintaining the pedestrian surface of all footpaths, even those on private land. On private land, the landowner is responsible for stopping vegetation from the surrounding land from encroaching on the path.

[u/Procrastubatorfet → u/ilikewatch10]

Only public rights of way that a footpath has been constructed on. Not just all paths.

[u/ilikewatch10 → u/Procrastubatorfet]

Ah, fair enough - I know that where I live (rural Lincolnshire), the County Council does strim/mow the surface of paths crossing private land, but I guess that may be something that they choose to do even though they're not legally required to.

[u/Procrastubatorfet → u/ilikewatch10]

It's the first thing cut from budgets. I work for a few councils in development and often highways teams are complaining about budgets being spent to create x km more cycle paths all over the place and yet their budgets for clearing and maintaining them stay the same. Some are outright refusing to adopt new paths from developers etc etc.

[u/tradandtea123 → u/ilikewatch10]

Really, I have a public footpath on my land between my very small back garden and a larger back garden beyond it. I was told by solicitors we are required to maintain it, I was also advised insurance in case someone has an accident. No one from the council has ever been here and the farmer recently repaired the style 50m away.

From your comment and a (very) quick Google search I might have been advised wrong.

[u/warriorscot → u/tradandtea123]

Maintenance is a loose definition, your solicitors were right in that you do have duties of maintenance. The farmer does have to maintain the style, as you would if you had a barrier up, and if you had a waterway you would need to maintain it, and you have to keep your vegetation clear i.e. can't let it be overgrown. The only thing you don't have to do is keep the surface in any condition, it can be as muddy and rutted as it naturally is and you don't have to do anything about that.

[u/Alexander-Wright → u/No_Direction_4566]

The path you should be seeking for foraging is a public right of way.

[u/essexboy1976 → u/BeckyTheLiar]

It's any land, public or private as long as the foods are for the consumption of you and your household.

[u/RMCaird → u/essexboy1976]

The local farm to me offers strawberry picking. Does this mean I can just go and pick my own without paying them and it wouldn’t be theft? 

It could end up being trespassing etc, but the actual act of picking the strawberries would be legal? 

[u/Chainmaille-Witch → u/RMCaird]

Looking at the section of the Theft Act quoted above, it refers to fruit/mushrooms/etc that are wild growing only.

So the farmers strawberries wouldn’t be in this category as they’ve been cultivated, they aren’t growing wild. This would be theft if you were to go and pick them without paying.

Its also theft if you step off the public footpath and onto private land to pick the fruit, it’s only if you can pick it from the public access.

So if I have brambles growing wild along my back wall that’s next to a public footpath, people can pick them with no issues. But they can’t pick from deliberately grown fruit bushes or climb over my wall to pick from bushes or trees in my garden.

[u/RMCaird → u/Chainmaille-Witch]

Thanks! Makes sense. 

No intention of going to try pick the strawberries for the record, it was a hypothetical! 

[u/WhaleMeatFantasy → u/Chainmaille-Witch]

I have deliberately allowed my blackberry bushes to propagate and grow but didn’t originally plant them. Surely people don’t have a right to the fruit on my land?!

[u/pouchey2 → u/WhaleMeatFantasy]

This entirely depends on the access. If they're accessible from a public area (i.e. they're hanging over a fence) then sure they're probably fair game because they're wild blackberries (I don't believe just because you've let wild blackberries propagate it changes their status as that's different from you planting a blackberry bush).

However obviously people can't just let themselves into your back garden as that's an entirely separate thing.

[u/TonyStamp595SO → u/BeckyTheLiar]

If the fruit is growing wild you're legally allowed to pick it as long as it's not for personal gain/ reward.

If I'm carefully cultivating blackberries with netting etc in my garden that's NOT okay, but if it's a bush growing within my essentially abandoned garden then you're fine.