Lost property still belongs to the original
owner and can be stolen. On the other
hand, abandoned property cannot be the subject of a theft. In R v
Rostron (2003) the defendant had gone to a golf course at night and
collected golf balls from a lake without
the golf course owner’s permission. The
Court of Appeal said it would be a question of fact for the jury to decide
whether the golf balls had been lost or abandoned by their original owners, and
upheld his conviction.
COURT OF APPEAL
R v ROSTRON AND COLLINSON [2003] EWCA
Crim 2206
16th July 2003
MANTELL LJ:
1. Some time between midnight and 1 o’clock
in the morning on 30th August 2001 a burglar alarm went off at Whetstone
Golf Club in Leicestershire. It was not the sort of
burglar alarm which can be heard in the neighbourhood, but one which connected
with the police station, and as a result, police officers arrived at the club
to find on cursory examination, that it did not appear that the club house
itself had been interfered with. However, on looking around, they found in the
car park to the golf club, not too distant from the club house, two men dressed
in frogman, or diving suits, and in possession of a sack, it can be described
in no other way, of very wet golf balls.
2. Whetstone is a golf club which has in
various places, or certainly in one place at any rate, a stretch of water which
is either there as an ornament to the course or to provide a hazard for
players. Unsurprisingly, perhaps, from time to time golf balls are driven into
the water, or in the case of some of us it would be perhaps more accurate to
say nudged into the water, where they are left, as it was accepted at a later
stage, for them to be retrieved by others; the players themselves having no
interest in wading in after their lost property.
3. It turned out that the golf balls in the
possession of the two men had been recovered from one of the water hazards, or
lakes, on the Whetstone course. The two men were to say however, when first
confronted by the police, that they had been taken from another course in
Lancashire, which, as we all know, is some distance from Leicestershire and the
explanation hardly compatible with the condition in which the golf balls were
found. The two men were none other than the appellants in this case, Terry
Rostron and John Mark Collinson.
4. On the basis of what the police
discovered, and the responses which they received in the course of interviews,
both Rostron and Collinson were charged with, first of all, theft of the golf
balls and, secondly, going equipped for theft. They stood their trial on those
two charges at the Crown Court in Leicester in April last year. Presiding over
the proceedings was His Honour Judge Bray. After what was a relatively short
trial, we are told the evidence lasted no longer than a day and the trial
itself concluded on the second day, both men were convicted on both counts.
5. One of them, Collinson, received an
immediate prison sentence and the other, Rostron, a community penalty.
Collinson appealed against his sentence. That hearing took place on 20th May
2002, presumably heard as a matter of urgency, and the appeal succeeded to the
extent that the prison sentence was quashed and a
community sentence imposed in its place. The details of the sentences are
immaterial for present purposes.
6. Further, by way of background we ought
to say that it appears that there is a considerable trade in golf balls
recovered in this way, and that they are, so it seems from the evidence given
in the case, known generally as ‘lake balls’. No doubt in many instances that
trade is carried on quite legitimately. Indeed we are told there are companies
with very considerable turnovers who deal in what are termed 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. Be that as it may and
returning to the present case.
7. Both Rostron and Collinson now have
leave from the single judge to pursue an appeal against conviction. The
arguments presented on behalf of both of them are much the same. It is said,
first of all, that the golf balls, having been abandoned by their original
owners, as it was accepted they had been, the removal of them by the appellants
could not amount to the offence of theft. If no one other than the two
appellants had any claim to possession to them at the time, that proposition
must be right. Secondly, it is said that even if the club or its members had an
interest in the golf balls sufficient to support a charge of theft,
nevertheless the direction which the learned judge gave with regard to the
necessary mental element of the offence was insufficient.
8. The first submission is that there was
here no sufficient evidence that the golf balls had passed into the control of
the club, or its members. It is certainly true, as appears from the summing-up
and other material before the court, that there were no notices posted at the
golf club in question, either forbidding person from leaving the public path
ways which cross the course and walking on to the playing area, or directly
indicating that any property found on the golf course was that of the club
itself, or its members.
9. However, in the course of presenting its
case the prosecution called, amongst others, the club professional, who we learn
from the summing-up had been holding that position for something like 30 years.
This is how his evidence was described by the learned judge in summing up to
the jury:
‘The prosecution case, as you know, is
based on the evidence of the golf club professional. He has been there 30 years
and can be presumed to know the rules of the club. His evidence was that, under
the rules or the practice that was carried out on the course, if you cannot
find your ball because you have driven it into the lake, for example, you have
had your five minutes to look for it and you cannot find it, not surprisingly,
you are deemed to have surrendered it to the club, and so it becomes the
property of the club. Of course, as the golf professional said to you, if you
find somebody else’s ball conveniently on the course, the club do not mind if
you pick that up and use it as your own. Because you are there legitimately on
the course, you have paid your sub or you have paid your money for the day and
you are legitimately playing golf. But it is a quite different matter if you
are on the course, walking the course, and you are not playing golf and have no
permission to be there. Then there is no licence, he said, for you to pick up a
ball and appropriate it, as the lawyers call it. So, much then for the
ownership point.’
That, of course, is only a reference to the
way in which the prosecution case was presented.
10. The judge also referred to the
defence’s response.
‘The defence ... say ... that the golf
balls did not belong to the golf club; that they had been abandoned by the
golfers and therefore the defendants were perfectly entitled to go in and pick
them up and treat them as their own to sell to others.’
That, indeed, was the defence presented,
supported not only by evidence from the defendants themselves, but by others
who were called on their behalf.
11. 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:
‘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).’
12. So the first question for the jury was
correctly identified by counsel appearing in this appeal, as being one of
whether or not there was here property capable of being stolen. If there was
not then, without reference to the state of mind of either appellant, there
could be no offence of theft.
13. To help determine that question we have
been helpfully referred to the case of Hibbert and McKiernon [1948] 2 KB 162, a
decision of the Divisional Court presided over by the then Lord Chief Justice,
Lord Goddard, and consisting otherwise of Humphreys and Pritchard JJ. That was
a case on not dissimilar facts where someone had been charged and convicted by
the justices of stealing golf balls from Reddish
Vale Golf Club, a course near to Stockport in Cheshire, or what would now
be Greater Manchester. Both the Crown before the learned judge and counsel
appearing on behalf of the appellants have relied on that case because in the
course of it reference is made on the particular facts obtaining there to
notices which had been posted as clear evidence of an intention on the part of
the club to exclude trespassers and, in particular, to exclude anyone who might
choose to come on to the course with a view to finding and taking abandoned
golf balls.
14. However as it appears to this court,
Humphreys J in the course of his short judgment quite correctly posed what he saw
as:
‘The simple question in the case ... Was
there evidence to justify the conviction for theft of those balls by the
appellant?’
That also seems to us to be the first and
central question to be answered in the present case.
15. We have referred to the evidence of
which the learned judge thought fit to remind the jury, and, as it seems to us,
that was sufficient not only to justify the rejection of the submission of no
case to answer, but was also such as would entitle the jury to reach the
conclusion that it did.
16. 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.’
17. That as a general proposition would
seem to the members of this Court to be correct. Of course we are at pains to
point out that every case of this kind must depend on its own facts and the
prior question to be asked and answered is the one identified by Humphreys J,
is there evidence to justify the finding that the property as defined by the
Theft Act in these golf balls belonged to the club? It seems to us that with
regard to the first point the directions given by the learned judge were
perfectly correct. That point fails.
18. The second ground of appeal is that the
learned judge failed to give what is sometimes termed a Ghosh, (1982) 75 Cr App
R 154, direction. A Ghosh direction is such as may be necessary where it is
said on behalf of an defendant accused of theft, or indeed of any other form of
dishonesty, that he believed he was entitled to do what he did. Then the
question may arise whether or not he truly held that belief and whether he
would have considered that other reasonable persons in the same position might
have been of the same mind.
19. Here the learned judge chose to give a
simple, straightforward, clear and fair direction; indeed, on one view, a
direction which was more favourable than it needed to be to each of these
appellants. He told the jury in terms that the prosecution had to prove that
the defendant whose case was being considered knew that he was not entitled to
go on to the golf course and remove golf balls. If that was established, then
the necessary element of dishonesty had been proved, and, of course, if that
were the case it would matter not what other people might think, because he
could not in such circumstances have had an honest belief that he was entitled
to do what he did. So the second ground of appeal also fails in our judgment.
20. Accordingly both appeals stand dismissed.
21. We should not, however, leave this
interesting case without, first of all, paying tribute to the skilful arguments
of both counsel, who have presented the appeals on behalf of their respective
clients, Miss Pinkus and Mrs Pontac, and they must not be too disappointed that
those arguments did not succeed, but perhaps, more importantly, without paying
tribute to the learned judge whose summing-up in this case, in our estimation,
had the combined merits of brevity, clarity and fairness and for short criminal
trials could well prove a model to others.
