Mushrooms and the law (3/4)
by Daniel Butler, forager and author
Please read Part 1 & Part 2 of the blog series first.
Official attitudes towards foraging
Over recent years there have been a plethora of foraging ‘bans’. The New- and Epping Forests, coastal reserves and some National Trust properties have been particular hotspots. Restrictions are usually announced through intimidating signage backed by press horror stories about the devastating effects of ‘commercial foraging gangs’. These unsubstantiated stories usually say the alleged culprits are East European giving them a decidedly racist tone.
New Forest signage in 2016
(Image: Author’s Own)
These bans have no credible basis in law. As shown in the past two blogs, there is actually very little legislation to restrict foraging for personal use. Instead, the authorities generally refer to by-laws.
These are no more than a smokescreen. For a start these cannot be passed by a Wildlife- or The National Trust, not even a quango such as the Forestry Commission.
Elected Councils can pass by-laws in very restricted circumstances, but these apply to small details covered by national legislation. They cannot over-ride laws passed in Westminster or Holyrood. Thus, a County Council can set fines for littering, but it cannot ban eating crisps in public. Here we return to the critical Theft Act (1967) with its stipulation that personal foraging on public or private land cannot be stealing.
Corporation of London signage 2021 (note implicit anti-Polish sentiment)
(Image: Forager Anon)
The next authoritarian recourse is to turn to guidelines from bodies such as the British Mycological Society or the Botanical Society of Britain and Ireland. However knowledgeable the authors, these still have no legal weight: they are effectively just wish lists.
Another approach is to say foraging is banned, but then to issue licences. Again, these have no legal weight although many foraging guides choose to go along with these schemes for the sake of diplomacy.
A morning’s haul of assorted Welsh boletes, chanterelles and oyster mushrooms
(Image Author’s Own)
Many authorities have sought to claim there is widespread commercial harvesting and that commercial activities are automatically illegal. This is questionable. In the three test cases I've found (two from the 19thC and one from 2004) the justices came down on the side of the gatherers.
The last case, some 20 years ago, involved Brigitte Tee-Hillman openly to admitted collecting winter chanterelles in the New Forest for sale. After many hearings the judge threw everything out and awarded her costs. These are believed to have totalled well over half-a-million pounds. Worse, as one senior Welsh conservationist official remarked sorrowfully to me at the time: ‘It sets a very awkward precedent – we really don’t want another one.’ It seems he was right: despite claims commercial collecting in the New Forest is still widespread there have been no more prosecutions.
A rare exception to this grudging acceptance came in 2018 when Miles Irving fell foul of Natural England over sea kale collection at Dungeness. Here NE used a very specific power within their remit (enshrined in national law) to ban specific individuals who are deemed to be causing particular harm on an NE reserve. In this case it was not just Miles, but named members of his workforce. Anyone else can still forage in the same place.
In general, however, the overall situation is well summarised by Jennifer Lee [1], whose Liverpool University PhD was on foraging law (link in footnotes).
The theme of ambiguity is one that permeates the application of all law surrounding foraging . . . The judicial system (both in its civil and criminal forms) does not want to set precedent on any issue surrounding foraging if it can avoid doing so and would rather leave the resolution of such matters to negotiation at the lowest level possible.
Confiscated Epping Forest fungi (possibly taken illegally from foragers)
(Image: Corporation of London)
Finally, most years there are a handful of successful prosecutions: notably on Hampstead Heath and in Epping Forest. In every case I can find, the miscreants are East Europeans, unfamiliar with this arcane corner of UK law. When challenged they hand over the mushrooms (to take them without consent would constitute a serious assault). Not surprisingly they all simply plead guilty in absentia, leaving the magistrates no option but to convict (see: Epping Forest: Dozens fined over 'illegal mushroom picking'). This does not mean the ban has any genuine legal weight and it would be interesting were someone to turn up at court citing the Theft Act.
Whether it is wise to push the point is addressed in Blog 4/4 (Coming next week).
Find out about Welsh foraging workshops with Daniel here
Please see Blog 1 for reuse permissions. For other use contact me.
Footnotes
[1] Lee, Jennifer Lane and Garikipati, Supriya. ‘Negotiating the Non-negotiable: British Foraging Law in Theory and Practice.’ Journal of Environmental Law. 2011