Mushrooms and the law (2/4)
by Daniel Butler, forager & author
Read Part 1 of this series first
The picture today
Although foraging has been generally tolerated for the past 800 years (see last week’s blog), official attitudes towards foraging have recently begun to harden. Where once scrabbling for free weeds and toadstools was regarded as something confined to just a few eccentrics, it has slowly become linked to quality produce and even saving the planet.
Early autumn bonanza of choice wild mushrooms
(Image: Author’s Own)
The new gastronomic fashions and environmental concerns coincide with sharp declines in many plants, fungi and animals. This in turn has led to heightened concerns and calls for foraging bans from many ‘custodians’ such as the Forestry Commission, National Trust and local councils. Despite this, most of those seeking restrictions seem to poorly understand the laws covering foraging. It seems even professional conservationists and experienced lawyers are confused.
I am not a lawyer, but have researched the subject in detail for articles in national publications (see this article and this one). I have also mounted two high-profile confrontations to fight ‘bans’ in Wales’s Elan Valley in 2007 and in the New Forest in 2016. No one quibbled with my opinion pieces and I won both confrontations – much to the consternation of the authorities.
Those that would like to inhibit or prevent foraging tend to cite environmental legislation or by laws. This actually demonstrates either a deliberate attempt to mislead the public or a surprising level of ignorance (probably the latter). Actually the most important piece of legislation is, surprisingly, the Theft Act (1968) which stipulates:
“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.”
In other words, collecting mushrooms or plant parts cannot be a crime anywhere. That said, were someone foraging on private land to refuse to leave, it could become a trespass – but that’s a completely different issue.
The blunt fact that picking for personal consumption cannot be theft has proved awkward for the authorities. Their response has generally been to assert commercial collection is a major problem and this is criminal. Actually the law does not state that it is, just implies it could be. It is also notable there has been an almost total dearth of evidence that it actually exists and no prosecutions for this since 2004 (more details in the next blog).
The Wildlife and Countryside Act (1981) does have some bearing on matters – but much less than one might think. This makes it illegal to uproot a plant on private land without the owner’s permission, yet the Theft Act stipulates that removing just ‘flowers, fruit and foliage’ cannot be stealing. This means gathering parts of plants cannot be criminal: in other words the Police and Crown Prosecution Service should not be involved. It would be up to the landowner to mount a costly and difficult-to-prove civil case.
Lion’s mane mushroom (Hericium erinaceus): one of only half-a-dozen specifically protected wild British mushrooms
The WCA does protect a few specified plants (and a handful of fungi), but in practice this is unlikely to have much bearing for foragers. Most of these are inedible, responsible foragers would avoid them and, anyway by definition, they are unlikely to encountered because of their rarity.
People also become confused when a Site of Special Scientific Interest (SSSI) or a National Nature Reserve (NNR) is involved. Such designations are actually about land use. They are designed to protect a habitat from development: they give no additional protection to the plants, fungi or wildlife found there.
Chanterelle-hunting on a Mid-Wales nature reserve without ‘permission’
(Image: Author’s Own)
The legal set-up is slightly different in Scotland – but not substantially so. Also, Scottish authorities generally take a much more benign attitude both to countryside access and wild harvesting.
The case is murkier in Ireland, but in practice Irish law is also generally aligned to the United Kingdom. This is because when the Free State was created in 1921 it adopted the existing British legal code. Obviously its laws have have diverged over the past century, but foraging has hardly featured heavily.
To summarise: the legal situation is murky, but broadly in the forager’s favour. This still isn’t necessarily accepted by the powers-that-be as we shall see in Blog 3.
Find out about Welsh foraging workshops with Daniel here
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