Paul Barker (39) and his 29 year old wife, Kerry, were on the bread line and penniless earlier in January of this year. It seems that neither could work due to ill health, and, both being hungry, decided to go to their local Tescos and take some food from the area where out of date food is kept before being binned.
Mr Barker was charged with theft, and pleaded guilty at Sunderland Magistrates’ Court on 11th May 2015. The District Judge seemed to have been less than impressed with the decision of the CPS to prosecute Mr Barker :
“How are they expected to live?”, he reportedly said, before giving him an absolute discharge – the lowest penalty that a court can give (and, effectively, a statement that he has done nothing morally wrong).
Another advantage of this is that there is no need for the Judge to make any financial order (including the otherwise mandatory victim surcharge).
Why was he prosecuted?
There are two issues here. Firstly, was he guilty of theft? Although it seems strange that someone can be guilty of stealing something that has, or will be, thrown away, but that is actually correct in law (have a look at a previous post about stealing from skips).
In the case of Williams v Phillips (from 1956), bin men were convicted of theft when they took things from the rubbish that they were collecting, as the property passed from the owners to the corporation on who’s behalf the bin men were collecting (in that case, also, they had previously been warned about this).
A requirement for theft is that the behaviour must be ‘dishonest’. It’s not clear to me that Mr Barker’s behaviour is obviously dishonest however – this was old food that could not be sold, and would on the face of it be binned. However, he pleaded guilty to theft, so would have accepted being dishonest.
But. Just because someone can be prosecuted, doesn’t mean that they should be. The CPS are supposed to apply a policy and consider whether or not a prosecution is in the public interest. Here, I have to say, unless Mr Barker had previously been told of the correct legal position and warned against doing this, it is hard to see how a prosecution could be in the public interest.
As we said previously, maybe there should be a third test – ‘how will this prosecution look when splashed in the newspapers?’ Here, prosecuting Mr Barker would have cost thousands of pounds, all in. Is there any way that that would be worth it?