The laws governing the foraging activities are not entirely settled and it’s quite complicated to understand them at a first glance. Every piece of land is subject to ownership and an individual right to forage is bound to a set of intricate laws.
In real life, it’s rarely black & white and it all depends on different factors: individual cases, the agenda of those involved and the consequences of your actions. Good practices and good communication will keep you on the right path though.
I am sure there may be clarifications needed and exceptions to be mentioned in this article, but this is the understanding of a passionate forager rather than a legal professional. It should not be relied upon as the definitive law; however you’ll find links to the official legal sites.
Please note the laws and regulations are constantly changing and they may vary between the four countries that make up the UK (The Isle of Man and the Channel Islands are not covered by UK law). Always check local byelaws affecting your area.
Private property and trespassing laws
The law of trespass in England and Wales states that you need explicit or implicit permission to go on to land you do not own, unless you are permitted under legislations such as ‘Right to Roam’ or ‘Rights of Way’; otherwise you will be trespassing.
This does not apply to Scotland, where there is no law of trespass and the ‘Right to Roam’ is enshrined in law, codified into Land Reform (Scotland) Act 2003 and the following Scottish Outdoor Access Code. People only enjoy these rights if they exercise them responsibly by respecting environment, people’s privacy, safety and livelihoods.
Back in England and Wales, given the case you end up on to private land without permission from the owner, you will not be committing a crime, but a civil wrong; therefore you cannot be prosecuted, however you could be sued instead, which is contemplated differently in law.
Needless to say, if asked to leave, you must do so at the first opportunity. Always ask yourself if the land belonged to you, would you want people walking over it and picking things without your permission?
There are some cases where having to ask would be foolish and so common sense must be exercised; you don’t need to phone your council to pick some hawthorn berries off a street tree or nettle leaves in a derelict garden.
The right to collect plants, fungi and shellfish
The Theft Act 1968, for England and Wales, states that: “A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.”
Therefore, there is a common law right to forage for plants as long as it’s for your own personal use and it’s growing wild; picking cultivated crops or collect wild food with commercial purposes would be considered theft: the intended use is the key.
There is also a general right to fish, including shellfish, in tidal waters. However, there is no common right to collect seaweed, unless it has become detached from the seabed. Prosecution is unlikely though.
It’s important to note the fact that the landowner is not entitled to claim any fruit, flower, fungi or foliage you might have picked from his land even if you are trespassing. Nonetheless, it’s always wise to ask for permission, not only because you will be trouble free but also because it’s the civilised thing to do.
Byelaws on collecting
Some places where access is permitted will have byelaws which may remove or control some of these common rights to collect wild food, thus restricting your foraging activities. There should be notices displayed somewhere near the entrance.
Local byelaws can be passed by councils, National Trust and government conservation agencies such as Natural England, Scottish Natural Heritage and the Countryside Council for Wales.
Right to roam, not to forage
Another exception to the common rights is under the Countryside Rights of Way, (CROW) Act, 2000, which gives people the right to roam on open countryside, defined as ‘mountain, moor, heath, down and registered common land’, leaving the coast out of the equation.
People can enjoy CROW land for ‘open-air recreation’, which is not expressly defined. However, it appears illegal to collect any part of a plant, thus removing the common-law right of foraging. The picking of fungi is not specifically banned, but could be controversial.
National Park Authorities or County and District Councils have powers alongside Central Government, to enforce CROW.
Prohibition of uprooting a plant
The Wildlife and Countryside Act 1981 (WCA) states that it is an offence to uproot any plant from any land without permission from the landowner or any authorised person. Uproot is defined as to dig up or otherwise remove the plant from the land on which it is growing and the term plant seems to include algae, lichen and fungi.
Therefore, in theory you cannot forage for dandelion or burdock roots unless permission is being given, no matter how common these plants are.
Sites of Special Scientific Interest (SSSI) and others
Plants featured in the declaration of a SSSI are protected and it might be illegal to collect them without permission from the relevant bodies: Natural England, Natural Resources Wales, Scottish Natural Heritage or the Council for Nature Conservation in Northern Ireland.
In the case of Scotland, the Nature Conservation (Scotland) Act 2004 make it illegal to pick any wild plants or fungi on a Site of Special Scientific Interest (SSSI) or a National Nature Reserve (NNR) without the express permission of Scottish Natural Heritage, who would first require you to present written permission from the landowner.
Plants likely to be affected are sea kale, juniper or cranberry; but I don’t think you would be prosecuted after sensibly picking some common plants like blackberries or dandelions.
A Special Area of Conservation (SAC) is protected site under the European Union and enjoys more restricted rules than SSSI’s.
There are a number of endangered plants specifically protected by law on Schedule 8 of the Wildlife and Countryside Act (1981) and it’s illegal to pick or damage them by anyone, including the landowner.
There is also a Red Data List of rare species, including plants and fungi. The public must be aware of such species and never pick any of these nor disrupting its habitat by careless foraging or damaging activities.