Is foraging fruit legal?

Thursday is National Apple Day. Some may mark it with an apple picked from a nearby tree's laden branches. But is this - and foraging for other fruit, fungi and foliage - legal?

In recent years, people have begun to cotton on to the culinary riches that surround us in parks, forests and hedgerows. There is a vogue for foraged food, driven by high-profile chefs such as Hugh Fearnley-Whittingstall as well as concerns about food miles and spending cuts.

And it has been a particularly bountiful autumn, with bumper crops of apples, pears and plums, blackberries, sloes and hawthorn berries, and mushrooms of all types.

But if you don't own the land on which it grows, can you legally pick it? 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."

And the Scottish Outdoor Access Code allows foraging, but again, not for commercial use.

So the intended use is key. The legality or otherwise of foraging is "incredibly complicated", says Ray Woods, of the wild plant conservation body Plantlife.

"In common law there's a general protection if it's for your own use - this is to stop the nobs [wealthy landowners] serving unnecessary prosecutions if someone takes one blackberry. In such a case, you can't be prosecuted under the Theft Act."

Where it gets more complicated is if there is a local bye law which prohibits foraging - these can be passed by councils, the National Trust and government conservation agencies such as Natural England, Scottish Natural Heritage and the Countryside Council for Wales.

What if you make hawthorn jelly?

"If there is such a bye law, there should be notices displayed," says Mr Woods.

Then there's the question of turning foraged food into jams, jellies, cordials and such like to sell at the local farmers' market - for commercial purposes, in other words.

"It's all a matter of common sense. You should never pick all there is, you should always leave plenty for others to enjoy - including wildlife," says Mr Woods. "If you are prosecuted, there's no need to prove the value of the property taken - there's generally just a fine for breaching the law."

What if it's fruit from a neighbour's tree that overhangs your garden or the pavement? It is technically an offence under the Theft Act to keep this bounty without the owner's consent.

But as it seems a shame to leave it to rot, groups have sprung up around the UK to pick fruit from the gardens of those who do not want it, or cannot pick it themselves, says Sue Clifford, of Common Ground, organisers of National Apple Day.

There are various codes of conduct for pickers of wild mushrooms and other such produce, the first of which was published in 1998 by Natural England. These typically call on people to act responsibly, show restraint and leave some fungi, fruit or foliage behind.

Be sure what you pick is edible

These were developed in response to fears that over-picking might harm woodlands and wildlife.

"I know of people being told off for picking blackberries and sloes by some local wildlife groups, on the grounds that these should be left to ensure biodiversity," says Matthew Oates, the National Trust's conservation advisor.

Under the Wildlife and Countryside Act 1981, it is an offence to uproot any wild plant without the land owner's permission, or to forage on a Site of Special Scientific Interest (SSSI). Some of these SSSI's are on National Trust land, says Mr Oates.

"But it's difficult to prove that the law has been broken, nor is there the will in the National Trust to go down this route. It would come down to whether [foraging] was done for commercial gain, and whether it threatens habitats and species."

So the chances of being prosecuted for two apples scrumped from a National Trust orchard last month are pretty slim?

"That's right," says Mr Oates. "Our view is to invite people to come and do it on National Trust land if it's for personal or family consumption.

"But if it's for commercial gain, come and talk to us first. Maybe they need to grow their own orchard or blackberry bramble in that case."