Removing material from a skip.

Carawaystick · 11-08-2020 12:53am

Claw Hammer wrote: »

It could well be argued that the owner has not abandoned the property placed in the skip but is in the process of delivering it to the refuse company who will convey it to recycling our landfill or incineration as the case may be. The owner would be responsible if he dumped the items on the street so he retains an interest in them even if his intention is to abandon them. The owner does not intend to abandon the items on until he no longer has any legal responsibility for them.

But at some point the ownership transfers. If I dump something in my bin, and my refuse collector collects and brings my waste to their site, and some time later, my waste, through a fault of the waste company, pollutes and causes another damage, I am not pursued for damages, but the refuse company is.

Peregrinus · 11-08-2020 2:02am

Carawaystick wrote: »

But at some point the ownership transfers. If I dump something in my bin, and my refuse collector collects and brings my waste to their site, and some time later, my waste, through a fault of the waste company, pollutes and causes another damage, I am not pursued for damages, but the refuse company is.

It doesn't follow that ownership has transferred. Liablity for pollution, littering, etc tends to attach to the person who generates the pollutant, or who has control or possession of, or responsibility for, the pollutant than to the person who formally owns it. This makes sense because (a) the controller, etc is in a much better position to prevent pollutiont than the owner, and (b) many pollutants are abandoned, i.e. they have no owner.

Claw Hammer · 11-08-2020 11:54am

Carawaystick wrote: »

But at some point the ownership transfers. If I dump something in my bin, and my refuse collector collects and brings my waste to their site, and some time later, my waste, through a fault of the waste company, pollutes and causes another damage, I am not pursued for damages, but the refuse company is.

It is still your waste. Having it removed by a licensed refuse company simply gives you a defence.

11-08-2020 12:59pm

Peregrinus wrote: »

I don't know what's in your contract with your bin company, obviously, but I'd be astonished if it included a clause transferring ownership of your wast material to the bin company. The bin company has no desire to own your waste and certainly would not include such a clause in their standard contracts.

joeguevara wrote: »

I doubt any contract transfers ownership to bin company. If that was the case then there would be two issues (a) the original owner would never have to worry about flytipping by the bin company and (b) lets say 10kg of drugs were found in the skip, does the bin company get charged for possession of controlled substance simply by virtue of it being in the skip.

Most contracts I have seen, the ownership remains with the person but the bin company agrees to dispose of it in an enviormental and legal fashion.

Perhaps its the way I posted but looking back, I havent mentioned transferring ownership in my last post. I stated that I have a contract with the waste company. That contract does not allow any third party to go through my bins or the skip I have hired. I think its another user xz... that talked about transfering ownership.

Thats just the reality. Its not your property in the skip / bin and you have no right, implied or other to open the bin and go through it.

In that case, the ingrediants of theft have been met ASSUMING that the owner ie me in this case, is actually bothered making a complaint. Thats highly unlikely unless it was a daily issue or the contents were being scattered,

In regards the drugs, you need to be in Posession or take ownership of them. Abandoned in a skip without evidence of who put them there or that the driver was aware, would be highly unlikely to meet the prosecution standard. Theres no mens rea afterall.

Heres the link to the Uk case I mentioned. Hopefully it works this time

https://www.lancashiretelegraph.co.uk/news/18286172.man-court-stealing-53-pouches-tobacco-skip/

Marcusm · 11-08-2020 1:18pm

The breakthrough in the Graham O'Dwyer case cae as a result of two gardai (one of whom was a Chief Super) searching O'Dwyer's bins after they were put out on the pavement. The evidence was not used to prove his guilt but created the trail to confirn that he had left relevant stains at the victim's house. I understand that significant efforts were undertaken to ensure that the taking of the property was lawful.

Frankly, I cannot see it being a "theft" as there is no "dishonesty", it is hard to "appropriate" something which has been discarded by the erstwhile owner who has not been "deprived"of its use given that they have thrown it away. I would have thought that there was a a significant difference between a vessel (skip, wheelie bin, whatever) on a private premises and one left on the side of the road.

As regards the pollution/waste management point, absent hazardous materials, it is the actions of the waste management company and not the waste per se which would be the pollution.

Claw Hammer · 11-08-2020 1:41pm

Skips on a public road are supposed to be licensed and are not intended to be there for the public at large to rummage through.
As for dishonesty, it comes down to the view of the tribunal of fact. It is a defence to a charge of theft to show that there was a reasonable belief the owner would have allowed the appropriation if he had been asked.
It can well be inferred that failure to ask was because it was known that the owner would not have given permission. Like everything, it will turn on the facts.
It would, in all likelihood, be difficult to bring a theft charge home whether the skip was on private land or a public road.

Peregrinus · 12-08-2020 2:55am

Niner leprauchan wrote: »

Perhaps its the way I posted but looking back, I havent mentioned transferring ownership in my last post. I stated that I have a contract with the waste company. That contract does not allow any third party to go through my bins or the skip I have hired. I think its another user xz... that talked about transfering ownership.

My apologies for confusing the two posts. My fault.

Still, I’m not inclined to attach much weight to the fact that the contract “doesn’t allow any third party to go through my bins”. Why would it? Third parties are, by definition, not parties to the contract, so the contract wouldn’t be an apt instrument either for conferring rights on them or for imposing restrictions on them.

My suggestion is that a third party can take your waste not because any contract allows it but simply because it is waste; i.e. you have thrown it away, thereby abandoning ownership of it. The fact that you have entered into a contract with someone to take it away and dispose of it doesn’t evidence an intention to retain ownership; just an intention not to incur liability under the waste/littering/pollution legislation. This has nothing to do with ownership; whether you are liable in relation to any waste, litter or pollutant doesn’t depend at all on whether you own it or not.

Niner leprauchan wrote: »

Thats just the reality. Its not your property in the skip / bin and you have no right, implied or other to open the bin and go through it.

My suggestion is that it’s not initially my property; it’s abandoned and ownerless. But I can make abandoned, ownerless things my own by appropriating them and, when I do, then they’re my property.

Niner leprauchan wrote: »

In that case, the ingrediants of theft have been met ASSUMING that the owner ie me in this case, is actually bothered making a complaint. Thats highly unlikely unless it was a daily issue or the contents were being scattered,

On a nitpick, whether you make a complaint or not is irrelevant to whether the ingredients of theft have been met; a complaint by the owner is not one of the elements of the offence.

But two things do have to be established before the offence is made out. First, you must actually be the owner of whatever I have taken; you must not have abandoned it. And, secondly, I must intend to deprive you of your property - i.e., I must know, or be taken to know, that you have not abandoned it. And my suggestion is that you leaving the property in a bin in the public street either (a) is actually abandonment or (b) at the very least, makes it reasonable to think that I honestly believe you to have abandoned it - either of which would mean that a theft charge cannot succeed.

Niner leprauchan wrote: »

Heres the link to the Uk case I mentioned. Hopefully it works this time . . .

It does, thanks. And I must admit it puzzles me. The defendant found stuff in a skip and took it for his own use. He pleaded guilty to theft by finding. On my reasoning above he had at least an arguable defence. So why plead guilty?

A couple of possible answers suggest themselves:

1. In this case the property appeared to be valuable - 53 pouches of (what he thought was) tobacco. It seems unreasonable to think that someone would intentionally abandon valuable property. If you find that in a bin you might be expected to think it had been put there by mistake, not as an act of abandonment.

2. We’re not told where the skip was. If it was on private land, e.g. in a yard, the inference of abandonment would not be so strong.

3. There’s a plea bargain. We are told that police investigated a shop burglary, and searched the defendant’s flat. But they didn’t find the tobacco in the flat; they found it in a bin. And it doesn’t belong to the shop owner, so it can’t have been taken in the shop burglary. The shop burglary is never mentioned again, and no charges seem to have been brought in relation to it. So why is it even being mentioned? Possibly the police agreed not to proceed with burglary charges (where the evidence may have meant a conviction was uncertain) if the defendant agreed to plead to the relatively minor charge of theft by finding.

Marcusm · 12-08-2020 10:04am

Peregrinus wrote: »

My apologies for confusing the two posts. My fault.

Still, I’m not inclined to attach much weight to the fact that the contract “doesn’t allow any third party to go through my bins”. Why would it? Third parties are, by definition, not parties to the contract, so the contract wouldn’t be an apt instrument either for conferring rights on them or for imposing restrictions on them.

My suggestion is that a third party can take your waste not because any contract allows it but simply because it is waste; i.e. you have thrown it away, thereby abandoning ownership of it. The fact that you have entered into a contract with someone to take it away and dispose of it doesn’t evidence an intention to retain ownership; just an intention not to incur liability under the waste/littering/pollution legislation. This has nothing to do with ownership; whether you are liable in relation to any waste, litter or pollutant doesn’t depend at all on whether you own it or not.

My suggestion is that it’s not initially my property; it’s abandoned and ownerless. But I can make abandoned, ownerless things my own by appropriating them and, when I do, then they’re my property.

On a nitpick, whether you make a complaint or not is irrelevant to whether the ingredients of theft have been met; a complaint by the owner is not one of the elements of the offence.

But two things do have to be established before the offence is made out. First, you must actually be the owner of whatever I have taken; you must not have abandoned it. And, secondly, I must intend to deprive you of your property - i.e., I must know, or be taken to know, that you have not abandoned it. And my suggestion is that you leaving the property in a bin in the public street either (a) is actually abandonment or (b) at the very least, makes it reasonable to think that I honestly believe you to have abandoned it - either of which would mean that a theft charge cannot succeed.

It does, thanks. And I must admit it puzzles me. The defendant found stuff in a skip and took it for his own use. He pleaded guilty to theft by finding. On my reasoning above he had at least an arguable defence. So why plead guilty?

A couple of possible answers suggest themselves:

1. In this case the property appeared to be valuable - 53 pouches of (what he thought was) tobacco. It seems unreasonable to think that someone would intentionally abandon valuable property. If you find that in a bin you might be expected to think it had been put there by mistake, not as an act of abandonment.

2. We’re not told where the skip was. If it was on private land, e.g. in a yard, the inference of abandonment would not be so strong.

3. There’s a plea bargain. We are told that police investigated a shop burglary, and searched the defendant’s flat. But they didn’t find the tobacco in the flat; they found it in a bin. And it doesn’t belong to the shop owner, so it can’t have been taken in the shop burglary. The shop burglary is never mentioned again, and no charges seem to have been brought in relation to it. So why is it even being mentioned? Possibly the police agreed not to proceed with burglary charges (where the evidence may have meant a conviction was uncertain) if the defendant agreed to plead to the relatively minor charge of theft by finding.

It was “theft by finding” rather than the Irish theft offence. The property was (erroneously) perceived to be valuable so it would not be reasonable to infer that it was abandoned and thus the finder had an obligation to seek out the owner and return it to them or the police. I infer from the reports of the case that the shopkeeper has acquired untaxed “tobacco” which he intended to sell but on identifying it as counterfeit he disposed of it in a skip. He could not admit to have disposed of it without admitting to possession of a putatively illicit item (again my inference).

Peregrinus · 13-08-2020 2:13am

Marcusm wrote: »

It was “theft by finding” rather than the Irish theft offence. The property was (erroneously) perceived to be valuable so it would not be reasonable to infer that it was abandoned and thus the finder had an obligation to seek out the owner and return it to them or the police. I infer from the reports of the case that the shopkeeper has acquired untaxed “tobacco” which he intended to sell but on identifying it as counterfeit he disposed of it in a skip. He could not admit to have disposed of it without admitting to possession of a putatively illicit item (again my inference).

SFAIK, there isn’t a distinct offence in England of “theft by finding”. There’s just theft contrary to Theft Act 1968 s. 1. “Theft by finding” is a shorthand for the ordinary offence of theft, committed in circumstances which start with the defendant finding apparently lost, mislaid or abandoned property.

In England, a person commits theft “if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it”. For a successful prosecution, you need to prove every element of the offence, including that the property belonged to someone else

So, on the face of it, the the conviction in the Lancashire case looks (from the newspaper report) iffy. The only evidence as to ownership before the court was that the shopkeeper did not own the fake tobacco. There was no evidence about who did own it.

Plus, it seems to me that the fact that it was counterfeit makes it entirely possible that someone had dumped it in the skip with the intention of abandoning it - they couldn’t smoke it; they couldn’t sell it without expecting anger and possibly worse from buyers who discovered it was unsmokeable; continued possession of it was pointless and risky, since it might link them to a tobacco counterfeiting/smuggling ring and perhaps expose them to other legal risks. So they dumped it.

What might save the conviction is the provision in Theft Act 1968 s. 5 which gives an extended meaning to the expression “belonging to”. For the purposes of the Theft Act, property “shall be regarded as belonging to any person having possession or control of it”. So you could argue that anything in a skip or bin on private land “belongs to” the person in occupation of the land. We’re not told where the skip was, but let’s assume it might have been was in a yard attached to the shop. In that case, even if the fake tobacco was abandoned, ownerless property, for the purposes of a theft charge it “belonged to” the shopkeeper.

The Irish theft legislation is similar. Under Criminal Justice (Theft and Fraud Offences) Act, 2001 s. 4 someone commits theft if he or she “dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it”. And under s. 2(4) “a person shall be regarded as owning property if he or she has possession or control of it”. Which, again, I think means that (for the purposes of a theft charge) you are an “owner” of any property on land that you occupy.

Which would mean that if somebody comes into your garden and goes through your bins, they are guilty of theft in relation to anything they take. But if they wait until bin day and go through your bins after you have put them out in the street, I don’t think a theft charge will succeed. Same applies to anything in a skip.

Irish_peppa · 13-08-2020 9:04am

There is another point to consider. What if people removing stuff from the skip fall or injure them selves. Where i used to work we had a skip on the property and 2 gents in a white van came and decided to rummage through the top of the skip. Well low and behold he stepped on a big rusty nail in a piece of wood. I gave him bandages and dettol when I went outside to see what they were at. The boss said I shouldnt of given them anything as it might be accepting liability. In fairness we never heard anything back from them so were not sued:)
But if this was residential and same thing happened an injury or fall from the skip you could be in trouble even if you didnt give permission:eek:

Removing material from a skip.

Comments