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A judge has slammed prosecutors for charging a desperate dad who stole out-of-date food from Tesco with theft, asking: "How are they expected to live?"

Paul Barker, 39, and Kerry Barker, 29, were spotted on CCTV sifting through groceries at the back of a store which were destined for the bin.

The couple are down on their luck and say they have virtually no money to look after themselves or their kids.

But they found themselves arrested and taken to court after police were called to the shop in Sunderland in January.

(Image: SWNS)

Mr Barker told officers the pair were hungry and they knew there would be unwanted food available.

But they were both charged with theft and Paul admitted the offence at Sunderland Magistrates Court.

Kerry is yet to enter a plea and will appear before magistrates later this month.

District Judge Roger Elsey handed Mr Barker a conditional discharge and refused to impose any financial penalty.

He asked the court: "How are they expected to live? It seems to me the appropriate punishment for taking food which is of no value is an absolute discharge.

"I clearly can't make any financial order."

(Image: SWNS)

Prosecutor, Jeanette Smith, said the pair were seen in the rear compound of the Hetton Road Tesco Express store, Sunderland, removing a pallet of food.

She explained that although the items were to be thrown out, they were in a secure compound, adding that Tesco's policy is not to give away discarded food.

Angus Westgarth, defending, said that when the offence occurred the couple had not been given benefits and had no way to fund food.

He said: "At the time, they hadn't had benefits or any money since December. It just seems that the state has failed them.

"They were told they would not get any benefits for a year from December. He is having to duck and dive to feed himself.

"Without a crystal ball I can see that this will continue to happen. He is trying to survive however he can.

"I think they call this way of living 'freeganism'. They take waste food and consume it.

"They are managing to live as, I think, Social Services are paying some money for housing. Their children are living with grandparents because of the situation."

(Image: SWNS)

Mr Barker claims that both he and his wife used to work, but he was forced to quit his job after breaking his back while working as a scaffolder.

He added that his wife Kerry gave up her job at Durham County Council five years ago due to depression and as a result the pair no longer had a source of income.

Because of this, the couple's children, a four-year-old boy and two-year-old daughter, have now been forced to live with their grandparents.

Speaking at home after the case, Mr Barker said: "I do it because I need food. I'm not nicking for profit like most.

"You have to be careful with fish, but most out-of-date food you can eat, but things like bread might be slightly harder.

"They should give it to people who need it. But they don't care, its just money making. It's wrong, it's horrible, its like not really living at all. It's like being in jail."

A spokesperson for Tesco said they do donate surplus food to people in need, through charity Fareshare and also redistribute food donated by their customers, to the Trussell Trust.

He said: "Working with the charity FareShare, we have already distributed over three million meals worth of surplus food to people in need and we are working on ways to make sure more surplus food is donated in this way.

"It is not safe to take food from bins and that is why we work with charities to redistribute surplus food that is safe to eat to people who need it."