Rostron & Anor, R. v

Property abandoned by its original owner may nevertheless be property belonging to another for theft if another person has possession or control of it, or a proprietary right or interest in it. Whether a golf club has acquired sufficient control of lost golf balls is a question of fact. Evidence of the club’s established practice may suffice, even without notices asserting ownership.

A direction based on Ghosh may be necessary where an accused claims an honest belief in entitlement. However, where the jury is properly directed that the accused knew he had no entitlement to enter the land and remove the property, that finding establishes dishonesty and makes an honest belief impossible.

The appellants were found at a golf club at night wearing diving suits and carrying wet golf balls recovered from a water hazard. They were convicted at Leicester Crown Court of theft and going equipped for theft.

They appealed against conviction. They contended that the balls had been abandoned by their original owners and so were not property belonging to another. They also submitted that the trial judge should have given a Ghosh direction on dishonesty. The appeal concerned whether the club had sufficient possession or control of the balls and whether the judge’s direction adequately addressed dishonesty.

Lord Justice Mantell, delivering the judgment of the court, dismissed both appeals.

1. For theft under sections 1 and 5 of the Theft Act, the central issue was whether the golf balls were property belonging to the club. The fact that the original players had abandoned them did not resolve that question. Property belongs to a person who has possession or control of it, or a proprietary right or interest in it.

2. Hibbert and McKiernon [1948] 2 KB 162 supported the inquiry whether there was evidence capable of justifying a finding of theft. The club professional’s evidence of the club’s practice was capable of establishing that unrecovered balls were surrendered to the club. The absence of notices did not prevent the jury from reaching that conclusion on the evidence. The trial judge’s direction on this issue was correct.

3. A Ghosh direction may be required where an accused says that he honestly believed he was entitled to act. The judge instead directed the jury that the prosecution had to prove that each appellant knew he had no entitlement to enter the course and remove balls. That was a clear and fair direction, and more favourable to the appellants than necessary. A finding of such knowledge established dishonesty because it excluded an honest belief in entitlement; the additional reasonable-person inquiry did not arise.

The convictions therefore stood.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction in [2003] EWCA Crim 2206.
• Crown Court at Leicester: convicted both appellants of theft and going equipped for theft following a trial before His Honour Judge Bray.