Irish Law Reform Commission Papers and Reports

THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

Report No 23

December 1987

 

RECEIVING STOLEN PROPERTY

 

IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2

 

 

© Copyright The Law Reform Commission 1987

First Published December 1987

 

 

CONTENTS PAGES   CHAPTER 1: INTRODUCTION 1-3   CHAPTER 2: THE PRESENT LAW 4-49   A. “Receiving” 5   (i) Possession 5   (ii) Control 7   (iii) When is the Act of “Receiving” Completed? 9   (iv) Possession Outside the Defendant's Premises 9   (v) Taking or Receiving? 10   B. The Meaning of Property 10   C. Requirement that the Property be Stolen or Obtained by Felony or Misdemeanour 11   (a) Stolen Property 11   (b) Property Obtained Under Circumstances Amounting to Felony or Misdemeanour 16   D. Proof of Theft 16   E. Thief as a Witness for the Prosecution 18   F. Difficulty in Proving Documentary Records or Computer Print-outs 18   G. Property Stolen Abroad 20   H. Husband and Wife 23   I. “Knowledge” 25   (i) “Knowledge” in General 25   (ii) Knowledge of Category of Crime 27   (iii) When Must the Accused have the Guilty Knowledge? 28   J. Evidential Aspects 30   (i) In General: The “Doctrine” of “Recent Possession” 30   (ii) “An Explanation Which Might Reasonably be True” 34   (iii) Evidence as to Possession of other Stolen Property and as to Previous Convictions 37   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=vii   (a) Possession of Other Stolen Property 37   (b) Previous Convictions 38   (c) Constitutional Implications of Section 43 of the Larceny Act 1916 39   K. The Relationship between Larceny and Receiving 40   L. Thief Aiding and Abetting the Receiver 42   M. Incitement to Receive 43   N. Section 13 of the Criminal Justice Act 1951 43   O. The Criminal Justice Act 1984 44   P. Attempted Receiving 48   Q. Receiving as a Summary Offence 48   Footnotes for Chapter 2 50-57   CHAPTER 3: COMPARATIVE ASPECTS 58-77   THE UNITED KINGDOM 58-63   (a) England and Wales, and Northern Ireland 58   (b) Scotland 62   CANADA 63   AUSTRALIA 64-71   (a) Victoria 64   (b) Queensland 64   (c) Western Australia 64   (d) The Australian Capital Territory 66   (e) New South Wales 66   (f) South Australia 68   (g) Tasmania 69   (h) The Northern Territory 71   NEW ZEALAND 71   UNITED STATES 72-76   (a) The Actus Reus 73   (b) The Mens Rea 73   (c) Attempted Receiving 74   (d) Evidentiary Aspects 74   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=viii   CYPRUS 76   HONG KONG 76   INDIA 76   Footnotes for Chapter 3 78-81   CHAPTER 4: PROPOSALS FOR REFORM 82-111   A. General Policy Considerations 82   B. The Scope of the Concept of “Receiving” 84   C. The Mental Element 85   1. Liability Based on Reception Without Regard to the Belief of the Accused as to Whether the Goods were Stolen 86   2. Liability based on Reception Where a Reasonable Person Ought to Suspect that the Goods were More Probably Stolen Than Not 88   3. Liability Based on Reception Where a Reasonable Person Ought to have been Certain that the Goods were Stolen 89   4. Liability Based on Reception Where the Accused was Reckless as to Whether the Goods were Stolen 89   5. Liability Based on Reception where (i) The Accused was Reckless as to Whether the Goods were Stolen, and (ii) A Reasonable Person Ought to have been Certain that the Goods were Stolen 92   6. Liability Based on Reception where the Accused Actually Suspected that the Goods were Stolen 93   7. Liability Based on Reception where the Accused Believed that the Goods were Stolen 94   8. Liability Based on Reception where the Accused was Virtually Certain that the Goods were Stolen 94   9. Liability based on Reception where the Accused was Actually Certain that the Goods were Stolen 95   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=ix   10. Shifting the Burden of Proof 95   11. A “Graded” Solution, where the Severity of Punishment Would Depend on the Extent of Mens Rea 98   12. Imposing More Onerous Obligations on Convicted Receivers 99   Conclusion 100   Dishonesty 100   Cases Where Goods Are Not Stolen 101   Property Believed to Have Been Acquired by Criminal Means Other than by Stealing 103   Handling and Larceny 103   A Duty on the Part of Dealers and Collectors to make Reasonable Enquiry as to the Legal Right of the Transferor to Dispose of the Goods 105   A Special Offence for those Engaged in Business Abusing their Position of Trust 106   Documentary Records and Computer Print-outs 107   The Proceeds of Theft 107   Section 43(1) of the Larceny Act 1916 109   Property Stolen Outside the State 109   Procedure 110   Penalty 110   Powers of Arrest 110   Form of Indictment 110   Footnotes to Chapter 4 112-114   CHAPTER 5: SUMMARY OF RECOMMENDATIONS 115-117   GENERAL SCHEME OF A BILL 117-123   APPENDIX 124-127   LIST OF PUBLICATIONS 128-130

 

 

CHAPTER 1: INTRODUCTION

1.

On the 6th March, 1987, the then Attorney General, Mr John Rogers SC, requested the Law Reform Commission to formulate proposals for the reform of the law in a number of areas. These included the law relating to various criminal offences which are still mainly governed by pre-1922 legislation, including in particular the law relating to dishonesty, malicious damage and offences against the person. As a first step, the Commission decided to consider the law relating to receiving stolen property, which is still largely, although not exclusively, governed by the Larceny Act, 1916. It appeared to the Commission that the law in this area was in some respects unsatisfactory and in need of modernisation. The Commission appreciated that ideally any modernisation of the law of receiving should take place in the context of a comprehensive modernisation of the law of dishonesty in general, such as was embodied in the Theft Act, 1968 in the United Kingdom. However, the extremely limited resources available to the Commission made it more desirable, in their view, to confine their attention initially to this aspect of the subject. In selecting the receiving of stolen property for attention, they have been conscious of the fact that to the extent that the existing law permits receivers of stolen property to escape conviction for unjustifiable reasons it also facilitates crimes of dishonesty over a wide area.

2.

The Commission began by preparing a Discussion Paper which set out the existing law and the difficulties to which it appeared to give rise, examined the law in other jurisdictions, set out the policy considerations which appeared to arise and made provisional recommendations for alterations in the law in a number of areas. This Discussion Paper was circulated among a number of people with particular expertise in this area, including judges, barristers, solicitors, academics, the Attorney General's Office, the Director of Public Prosecutions' Office, the Department of Justice and the Gardai. As a result, the Commission received a number of detailed and helpful

commentaries in writing on the Discussion Paper and, in addition, a meeting was held at the Commission's Offices in July at which there was a large attendance of those interested. When the results of this exercise had been carefully assimilated and collated by the Commission, a core group was established to take the examination to a further stage. That process has now been completed and this Report embodies the final proposals of the Commission to the Attorney General.

3.

A major difficulty in the prosecution and conviction of receiving offences derives both from the nature of receiving itself and from deficiencies in the existing law. Proof of the crime depends to an unusual degree on establishing the state of mind of the alleged receiver. In the absence of admissions, rarely forthcoming, that the accused received the goods knowing them to be stolen or cogent circumstantial evidence to that effect, it may obviously be difficult to convince a jury beyond reasonable doubt that the accused's state of mind was, in general terms, “guilty”. Clearly, some of the difficulties experienced by the prosecution in receiving cases could be eased by allowing convictions in cases where the evidence established no more than culpable carelessness rather than guilty knowledge. More radically, the presumption of innocence to the benefit of which accused persons are entitled could be modified in receiving cases by providing that persons found in possession of stolen property should be presumed to be guilty of a crime, as a matter of law, in the absence of explanation. The desirability of ensuring the more effective prosecution and conviction of receiving offences must be recognised; but so must the constitutionally guaranteed right of citizens to a trial in accordance with accepted standards of fairness. These are the most difficult problems with which the Report deals. It deals also, however, with other features of the existing law, which are clearly unsatisfactory and where we are satisfied that there would be little disagreement as to the need for alteration.

4.

Chapter 2 contains a statement of the existing law and indicates the areas in which it appears to be unsatisfactory. Chapter 3 consists of a summary of the law in those jurisdictions in which the Commission's researches suggest the most profitable models can be found. Chapter 4 examines the policy considerations which arise and the various options for change which appear to merit consideration and sets out the Commission's final recommendations for reform of the law.

5.

The Commission express their gratitude to the following who assisted them in coming to their conclusions:

Mr Eamonn Barnes, Director of Public Prosecutions,

Mr Justice Robert Barr,

Mr Joseph Brosnan, Assistant Secretary, Department of Justice^*,

Judge Gerard Buchanan,

Mr Paul Carney SC,

Mr Peter Charleton, Barrister-at-Law,

Dr Alpha Connelly,

District Justice Sean Delap,

 

 

Mr Louis Dockery, Chief State Solicitor,

Mr Barry Donoghue, Solicitor, Chief State Solicitor's Office,

Mr Adrian Hardiman, Barrister-at-Law,

Mr George Hart, Special Legal Adviser, Department of Justice^*

Mr Justice Seamus Henchy,

Ms Mary McAleese,

District Justice Sean McGee,

Deputy Garda Commissioner John Paul McMahon,

Mr Erwin Mill-Arden, Barrister-at-Law,

Judge Michael Moriarty,

Mr Greg Murphy, Barrister-at-Law,

Mr Justice Rory O'Hanlon,

Professor E F Ryan, Barrister-at-Law,

Mr Garrett Sheehan, Solicitor,

Mr Denis Vaughan-Buckley SC.

We should emphasise that, while we must appreciate the assistance freely given by the foregoing, the recommendations in this Report do not necessarily reflect the views of any of them and the Commission itself is solely responsible for any inaccuracies in the Report.

We also received information as to the law in other jurisdictions from a large number of individuals and organisations. The Appendix mentions several of them by name. We are most grateful to them for their valuable assistance.

* In his personal capacity.

 

 

CHAPTER 2: THE PRESENT LAW¹

6.

Statutes in the eighteenth and nineteenth centuries dealt with aspects of the offence of receiving. These culminated in this century in section 33 of the Larceny Act, 1916, which provides as follows:

A. “Receiving”

7.

Section 33 does not define “receiving”. The essence of the concept is that the accused has taken the property into his possession or under his control.³

(i) Possession

8.

“Possession” is a word of somewhat flexible dimensions.⁴ The central notion is clear enough. If I exercise conscious control over goods by holding them in my hand, or placing them in my cabinet, I will normally be considered to possess them. But where the relationship is less direct, some uncertainties can arise. It may be debated whether I “possess” goods that are placed in my premises when I am not there: whether I knew and approved of their arrival will undoubtedly be relevant in answering this question. Moreover, a question which can often arise in the context of receiving stolen goods relates to the time at which possession of goods begins. Police authorities have often intervened during the course of the negotiation or the hand-over of the goods, and the would-be receiver has strenuously argued that matters had not gone so far as to have involved him in crossing the threshold of possession or control. The willingness of the courts to adopt the concepts of “actual” and “constructive” possession has on occasion confused rather than clarified the issue. Finally, goods may sometimes be in the possession of another person over whom the defendant has authority or control. In these circumstances, the question may arise as to whether the defendant by reason of that authority or control should be regarded as possessing or exercising control over the goods.

9.

The Irish case of Nugent & Byrne⁵ is a good example of how the issue of possession may prove troublesome. A bag of money was found by the Gardaí on the floor of Nugent's car behind the driver's seat, just after he had sat into that seat. The car had been parked outside a public house in Francis Street, Dublin, from just after 9.15 p.m. until closing time. The two defendants were in the pub all the time. The Gardaí had the car under continuous observation from about 9.20 p.m.

The trial judge had charged the jury as follows:

The jury convicted. The Court of Criminal Appeal ordered a new trial for Nugent, as it did not consider that this charge to the jury had put his defence, “such as it was”, fairly or adequately to the jury.

Davitt P, for the Court, stated,

 

 

The trial judge's only reference to Nugent's defence, in the passage quoted above, was not sufficient, in the view of the Court of Criminal Appeal.

Byrne, the passenger, had also been arrested, when he had “opened the passenger door and was about to get in ”.⁷ He too had been convicted of receiving the money. The Court of Criminal Appeal set aside his conviction. Davitt P, for the Court, said:

10.

A most interesting issue of possession arose in the Irish case of Byrne.⁹ A box containing a pendant, brooch and other items of jewellery was sent by post to a person living in Dalkey. The box was stolen when in transit, where exactly does not appear to have been clear. The first defendant was a letter carrier at Dalkey, but it would not have been his duty to deliver the box. It might, however, have been taken by him, or others, during or after the sorting.¹⁰

The day after the box had been posted, the second defendant, who was the mother of the first defendant, tried to pawn the pendant. While

she was in the pawn office, her son remained outside, and when she left he followed her and joined her “some distance off”.¹¹

Within about a week to ten days, a girl who knew the first defendant received a box by post, directed in his handwriting, containing the stolen brooch.

The jury convicted both defendants of receiving. On appeal, their counsel argued that there was no evidence of a joint possession of the goods; that the pendant was not proved to have been in the first defendant's possession at all; and that if the evidence showed him guilty of any offence it was larceny and not receiving.

By four to three, the Court of Crown Cases Reserved affirmed the conviction. The majority held that, on the evidence, the jury had been warranted in finding both defendants guilty of receiving the goods, knowing them to have been stolen. But the minority was of opinion that the evidence against the first defendant had gone to show that he had stolen, rather than received, the pendant and that he could not be convicted of receiving.

(ii) Control

11.

As has been noted, it is not necessary for the prosecution to establish that the defendant possessed the goods: it will suffice to show that they were under his control.¹² In Lawless,¹³ in a prosecution for receiving, the jury, having retired for some time, returned to ask the question: “May an accused be considered a receiver of stolen property if such property is under his supervision and control, as opposed to any actual physical possession?” The trial Judge dealt with the question by reading to the jury the following passage from Archbold¹⁴:

The Court of Criminal Appeal considered that this was “an accurate and satisfactory”¹⁵ reply to the questions put by the jury.

12.

Miller¹⁶ offers a good example of how an employer may be held to have received the stolen property even without actually touching it. In this case the thief brought some pieces of stolen cotton into the defendant's public house. The thief went behind the counter. The defendant called her employee and told her that the thief wished the employee to pawn the cotton. The employee did this, and brought back the money which she gave to the thief in the defendant's presence. The defendant never touched either the cotton or the money.

The Court of Criminal Appeal affirmed the conviction for receiving. Lefroy CJ, for the Court, said:

 

 

13.

In Rooney,¹⁸ members of the Garda Síochána came to a factory and on going round the back came upon the three accused crouched behind a 3 ft high wall. When the accused stood up, ten rolls of wallpaper were found at their feet. In the course of his charge, the trial Judge directed the jury to apply to this evidence a straightforward test as to whether the accused either physically handled the goods or whether they had obtained such control over them as was consistent with possession. He used the word “appropriation” in regard to the question whether they had obtained such control.

The Court of Criminal Appeal affirmed the convictions of the accused. Finlay CJ observed that “appropriated” was, in the view of the Court, “an appropriate word for the assistance of the jury”.¹⁹ It had therefore been open to a jury properly directed to conclude that the accused exercised a control equivalent to possession.

14.

In Hobson v Impett,²⁰ in 1957, the appellant had helped one Porritt to unload from a cart a sack containing stolen ingots and to take the ingots into Porritt's home, where the appellant was a lodger. At the conclusion of the unloading the appellant knew that the sack contained stolen ingots. The following day, the appellant helped Porritt and another man to load fifteen of the ingots into the back of a car, by picking up some of them and carrying them from Porritt's home to the car. The appellant knew that the ingots being taken in the car were to be offered for sale. He travelled in the car as a passenger but it was not proved that he touched the ingots again or took any part in offering them for sale at the end of the journey. For a period on the journey he was left alone with the ingots. Later that day, the police found sixty-three of the stolen ingots at Porritt's house. The appellant was convicted of receiving. The Appeal Committee dismissed the appeal, but the Divisional Court quashed the conviction.

Goddard LCJ said:

 

 

(iii) When is the Act of “Receiving” Completed?

15.

It may sometimes seem quite plain that the defendant had every intention of receiving stolen property but it may be less plain that he had actually gone far enough to be regarded as having completed the act of receiving. In the famous case of Wiley,²² the police, on bursting into the accused's stable, found the accused with two other men standing round a closed sack full of stolen birds, “as if they were bargaining, but no words were heard”.²³ By eight to four, the Court for Crown Cases Reserved held that the accused's conviction for receiving should be set aside.

Coleridge J, for the majority, said:

(iv) Possession Outside the Defendant's Premises

16.

On the question of possession outside the defendant's premises, the Victoria decision of Merriman²⁵ is of some interest. Stolen goods were left in a lane adjoining the defendant's property early one morning. The men who left them there had made a prior arrangement with the defendant that they would deposit stolen goods there. The Supreme Court set aside the defendant's conviction of receiving. Hodges J provided a clear analysis:

 

 

(v) Taking or Receiving?

17.

On occasion, it may not be clear whether the goods were received or stolen from the thief. In an unreported case mentioned in an article in 1945,²⁷ two defendants took property from a place where it had been hidden by thieves. The defendants knew that the thieves were unaware of this act. The article records that:

A defendant charged with receiving sometimes claims that he was given the property by a person who, by his conduct, manner or reputation, frightened the defendant into taking it. This type of defence can, of course, proceed on the grounds of duress²⁹ or the absence of dishonesty;³⁰ but it may also be perceived as raising an issue regarding possession.

B. The Meaning of Property

18.

Section 46 (1) of the Larceny Act, 1916 provides that:

Although this definition extends to real property, it has been observed that:

 

 

A more troublesome question arises in relation to the possible scope of the words “any property into which the same has been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise”.³² The judicial analysis of this question has been somewhat rudimentary.³³

In D'Andrea v Woods,³⁴ a number of saving stamps were stolen and converted for their cash value. Some of the Bank of England notes received for them were handed to the appellant, who knew that they were part of the proceeds of the theft and conversion of the stamps.

The Queen's Bench Division had no hesitation in upholding a conviction for receiving. Lord Goddard CJ said:

This case gives some indication of the great breadth of section 46 (1) so far as its express language is concerned.

C. Requirement that the Property Must be Stolen or Obtained by Felony or Misdemeanour³⁶

19.

Before a person may be convicted of receiving stolen property, it must be shown that the property, at the time of the receiving, was stolen property³⁷ or property obtained by felony or misdemeanour.

(a) Stolen Property

20.

If the property which the defendant received was never stolen, or if, having been stolen, it has ceased to be so before the time of the receiving, the offence will not be committed. In Creamer,³⁸ the English Court of Criminal Appeal held that the effect of section 36 of the Larceny Act, 1916 was that a wife who appropriated her husband's property was not guilty of larceny unless she took it when she was leaving him or on the point of doing so. Thus the man to whom she gave the property could not be guilty of having received it since the property was not stolen property. The Court rejected the argument that the effect of the section was merely of a procedural nature, preventing the prosecution of the wife. If the Court had accepted this interpretation, it seems clear that the charge of receiving could have been sustained.

In Walters v Lunt,³⁹ the respondents were charged with receiving from their son, aged seven, a tricycle which he had stolen. The justices refused to convict on the ground that, as the child was under the age of eight,⁴⁰ he could not be guilty of larceny and that therefore the parents

could not be guilty of receiving, since the tricycle taken by the child was not property “stolen or obtained...under circumstances which amount to felony or misdemeanour”. The King's Bench Division dismissed the appeal by way of case stated.

Counsel for the appellant had argued that the statutory provision providing that no child under the age of eight “can be guilty of any offence” did not mean that a child under that age was not capable of committing an offence, and that, therefore, although the child could not be convicted as a principal, the receivers of property stolen by him were nonetheless liable to be convicted, and, under section 33 (3) of the Larceny Act, 1916, the respondents could be convicted even though the child, as the principal offender, was not amenable to justice.

Rejecting the appellant's argument, Lord Goddard CJ⁴¹ placed reliance on Creamer.⁴² He said:

Lord Goddard CJ continued:

21.

In Farrell.⁴⁶ Wild CJ of the New Zealand Supreme Court followed Walters v Lunt. The defendant was charged with receiving from a named person a cheque form which before then had been obtained by a crime, knowing at the time of receiving that the cheque form had been dishonestly obtained. The defendant successfully moved that no indictment should be presented on the ground that the depositions did not disclose that the cheque had been “obtained by any crime,” as section 258 of the Crimes Act, 1961 required.

 

 

Wild CJ considered that, if anything, the case before the Court was stronger than Walters v Lunt, in that the depositions contained evidence that the named person had been acquitted of stealing on account of her insanity:

22.

In Dolan,⁴⁸ the owner of some brass castings found them in the pockets of the thief. He sent for a policeman. The policeman took the castings, and he went with the owner and the thief to the defendant's shop, where the thief had previously sold other stolen goods. The policeman gave the goods to the thief, who was then sent by the owner to sell them in the shop. This the thief did. The shopkeeper was successfully prosecuted for receiving but his conviction was quashed by the Court of Criminal Appeal.

Lord Campbell LJ said:

23.

In Schmidt⁵⁰ four thieves stole goods from the custody of a railway company, and sent them in a parcel by that company's line addressed to the defendant. The theft was discovered during the transit. A policeman attached to the company opened the parcel, established what its contents were, retied it, and later directed a porter to take it to the defendant's house. This was done. The policeman found the parcel unopened in the house, and arrested the defendant.

The Court for Crown Cases Reserved, by a majority, quashed the conviction. Keating J said:

Mellor J, who was one of those dissenting in the case, “concur[red] with the propriety”⁵³ of Dolan, but added that, in Dolan's case,

Lush J held that, if the railway company had carried the stolen goods after the theft “in the usual course”,⁵⁶ he would not quash the conviction. But, he noted:

 

 

24.

In Villensky,⁵⁸ a parcel of two dozen nightgowns was handed to a firm of carriers for conveyance to the consignees. While the parcel was in the depot, one Clark, an employee of the firm, was seen by another employee to remove it from one part of the premises to another. When another employee examined the parcel, he found that it had a label on it addressed to the defendants.

This employee reported the facts to his superintendent, who, having inspected it, gave directions that it should be replaced in the part of the premises where it had been found, and that a special delivery-sheet should be made out according to the name and address on the label. The superintendent also directed that two detectives should travel in the van with the parcel when it was being delivered.

The parcel was accepted by the defendants “under circumstances pointing clearly to the conclusion of complicity with [the thief], and knowledge on their part that it had been stolen”.⁵⁹ No question arose on that point.

At the conclusion of the evidence, counsel for the defence objected that there was no case to go to the jury, inasmuch as at the time the parcel was received by the defendants it had ceased to be stolen property, the bailees, the carriers, having resumed actual possession of it. This objection was overruled, and the defendants were convicted of receiving. The question for the opinion of the Court for Crown Cases Reserved was whether on the facts the objection as a valid one. The Court held that the objection was valid. Lord Coleridge CJ said:

A L Smith LJ was of the same opinion. He said:

Pollock CB also agreed. He said:

 

 

Finally, Cave J, concurring, considered it “impossible to distinguish this case from Dolan,⁶⁷ which, in my judgment, is directly in point”.⁶⁸

25.

Villensky may be contrasted with King,⁶⁹ a decision of the English Court of Criminal Appeal, in 1938. A fur coat was stolen from a house. Shortly afterwards, the police went to a flat where they found a man called Burns. The police told him that they were making inquiries about some stolen property, and Burns said that there was nothing there. A little later, realising that the police were going to search his premises, Burns admitted the theft, and produced from a wardrobe a fur coat, which was done up in a parcel. Then, when one of the police was in the act of examining the contents of the parcel, the telephone rang and there was a conversation between Burns and the other party. The police heard Burns say: “Yes ... No ... Come along as arranged”.

The police then suspended their operations so that this person might indeed come along as arranged. After twenty minutes the appellant arrived. He knocked at the door and, having been admitted by Burns, said: “I have come for the coat. Harry sent me”. The police, who were hiding behind the doors, heard this remark. Burns handed the coat to the appellant.

The appellant was charged with receiving the coat, and convicted. The Court of Criminal Appeal dismissed his appeal.

Humphreys J, for the Court, noted that counsel for the appellant had argued that the conviction was improper because the coat was no longer stolen by the time the appellant received it. The difficulty with this argument was that:

King has met with little enthusiasm among the commentators.⁷¹Smith & Hogan observe that:

 

 

(b) Property Obtained Under Circumstances Amounting to Felony or Misdemeanour⁷⁴

26.

The indictment “must specify that the property was obtained under circumstances amounting to a felony or misdemeanour known to the law”.⁷⁵ A conspiracy to obtain goods⁷⁶ or money⁷⁷ by fraud, embezzlement⁷⁸ and “incurring a debt or liability [or] obtaining credit under false pretences or by means of other fraud”⁷⁹ fall within the scope of this requirement.

The word “obtained” is important: it has been held that section 33 does not extend to cases of receiving goods which had been obtained lawfully but had been subject to later fraudulent misappropriation, unless the misappropriation amounted to larceny by a bailee or servant, or embezzlement.⁸⁰

Samuels says:

D. Proof of Theft⁸²

27.

Although there is no direct proof of the ownership and theft of the goods received by the defendant, the theft may be inferred from the circumstances.⁸³ In Sbarra,⁸⁴ in 1918, it was stated:

In Cohen v March,⁸⁵ where the defendants were charged with having received razor blades, Lord Goddard CJ, for the King's Bench Division, said:

 

 

In Young,⁸⁷ the following year, Lord Goddard CJ sought to place these remarks in context. The appellant had been found guilty of receiving a considerable quantity of new, untarnished and recently milled metal. The appellant had sworn that the metal had not been stolen. In upholding the conviction for receiving, Lord Goddard CJ referred to his earlier statement in Cohen v March that there might be a case in which a person makes a statement on which a jury would be justified in finding that he did know that the goods were stolen. He continued:

In Fuschillo,⁸⁸ the accused was found with over a ton of sugar on his premises at a time, during the war, when sugar was rationed. There was no direct evidence as to its provenance, but the accused, when cautioned, had been unwise enough to say:

The English Court of Criminal Appeal affirmed the conviction. The court was satisfied that the surrounding circumstances provided sufficient evidence to go to the jury on the charge. The court referred with apparent approval to the statement in Sbarra⁹⁰ quoted above.

In England, the courts have evinced some difficulty in coping with cases where evidence as to the provenance of the property is attributable solely to the statement of the accused. The decisions are not easy to reconcile, but some strands of a coherent approach are discernible. If the statement of the accused is to the effect that he acquired the property at a ridiculously low price, this affords evidence that the property was stolen.⁹¹ Where, however, the prosecution have to rely merely on the admission by the accused that the property is

stolen, there being no other evidence on the point, it seems that the court should treat this evidence as hearsay and acquit.⁹²

E. Thief as a Witness for the Prosecution

28.

The thief is a competent witness for the prosecution.⁹³ Since he is an accomplice, the trial judge must warn the jury of the danger of convicting the defendant of receiving on his evidence unless it is corroborated⁹⁴ in some material particular which implicates the defendant.⁹⁵

Samuels states:

As Pollock CB said in Pratt,⁹⁸ the thief:

F. Difficulty in Proving Documentary Records or Computer Print-outs

29.

In cases of receiving on a large scale, the property may consist of substantial numbers of consumer goods, such as television sets or video recorders. In these circumstances, the owner may be unable to identify the individual items and may seek to bridge this evidential gap by producing invoices or delivery dockets bearing serial numbers of one sort or another. This, however, may in turn be met by the objection that only the person who actually entered up the invoices or delivery dockets can prove them under the rule against hearsay. In some cases, of course, it may be simply impossible to produce any such evidence, a lacuna in the law which was strikingly illustrated by the leading English case of Myers v Director of Public Prosecutions.⁹⁹ The facts in the case are helpfully summarised in a leading English textbook as follows:

 

 

In the Law Reform Commission Working Paper on the Rule Against Hearsay,¹⁰¹ doubts were expressed as to whether Myers represented the law in the jurisdiction. It was pointed out¹⁰² that a less restrictive approach to the admissibility of records had prevailed in other common law jurisdictions. Reference was made inter alia to the decision of the Supreme Court of Canada in Ares v Venner¹⁰³ where it was held that “hospital records including nurses' notes made contemporaneously by someone having personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein”.

It should not be thought, however, that the decision in Myers necessarily represents the law in this jurisdiction. In Marley,¹⁰⁴ Keane J, speaking for the Court of Criminal Appeal, said:

In Prunty,¹⁰⁵ McCarthy J, speaking for the Court of Criminal Appeal, said:

 

 

Both of these passages are clearly obiter. It cannot, in these circumstances, be assumed that, in a case where the issue directly arose, the Court of Criminal Appeal or the Supreme Court would necesarily adopt the same approach as the majority in Myers. It is, accordingly, surprising to find that in receiving prosecutions in the Circuit Court it is accepted, apparently without argument, that it does indeed represent the law in this jurisdiction.

G. Property Stolen Abroad

30.

We now consider subjection (4) of section 33 of the 1916 Act, which deals with receiving property stolen abroad. The background to the subsection is of some interest. In Debruiel,¹⁰⁶ a person who had robbed a house in Guernsey and taken the stolen property to England was prosecuted for larceny and receiving, in Devonshire. The charges were held unsustainable. Byles J said:

This ruling was followed until the passing of the Larceny Act 1894, section 1 of which was substantially reproduced in section 33(4) of the Larceny Act 1916.

Section 33(4) provides that:

31.

After Independence, the question arose as to the scope of section 33(4). In Finegan,¹⁰⁹ FitzGibbon J, speaking for the Court of Criminal Appeal said:

 

 

The result of this interpretation was satisfactory: property stolen in either Northern Ireland or in Britain fell within the scope of the subsection. But this view has not ultimately prevailed.

It has twice¹¹⁰ been held by the Supreme Court that section 33(4) applies where goods are stolen in Northern Ireland, but not in Britain. This conclusion results from a different interpretation of section 3 of the Adaptation of Enactments Act 1922. In The State (Gilsenan) v McMorrow,¹¹¹ Henchy J said that the range of adaptation effected by section 3 was as follows:

In The People (Attorney General) v Ruttledge,¹¹² O'Byrne J (for the Court) had said:

In Gilsenan's case,¹¹³ Kenny J, joining with the other members of the Supreme Court in expressing agreement with O'Byrne J's analysis, commented:

 

 

32.

It should, however, be noted that the observations on these matters in Ruttledge and Gilsenan were obiter, since in both cases the property was alleged to have been stolen in Northern Ireland. It is also at least arguable that the opinion of the court in both cases was given per incuriam, since their attention does not appear to have been directed to the provisions of s. 39 (3) of the Act of 1916. This provides that:

Applying the form of adaptation found in Ruttledge and Gilsenan to be correct, this would read:

It would appear to follow that a person could be prosecuted under this section in respect of property stolen in Great Britain but received in the Republic of Ireland.

It is, of course, the case that s. 39 (3) was enacted in its original form because of the existence of separate legal jurisdictions within the United Kingdom and in this general form ceased to be a necessary part of the legal framework of the 1916 Act so far as this jurisdiction was concerned after 1921. But it remains on the statute book and if the Act is to be literally construed in the manner proposed in Ruttledge and Gilsenan, the conclusion would seem to follow that it permits such prosecutions and convictions. It has also, however, the remarkable and patently unintended consequence that the State apparently assumed an extra-territorial jurisdiction which it could not enforce by providing for prosecutions and convictions in England in respect of receiving offences committed in England where the property was stolen in this jurisdiction. The only way in which this manifestly unreasonable result can be avoided is to adopt what has been called by the Supreme Court in another case¹¹⁴ a schematic or teleological approach and to depart from the literal construction of s. 3 of the Adaptation of Enactments Act 1922. In the words of Henchy J in that case:

 

 

The literal construction adopted in Ruttledge and Gilsenan of s. 3 of the Adaptation of Enactments Act 1922 as applied to the relevant sections of the Larceny Act, 1916 would clearly “over-step the limits of the operative range” of s. 39 (3). This result can be avoided only by departing from the literal construction and construing s. 3 of the Adaptation of Enactments Act 1922 in this manner:

This is undoubtedly doing some violence to the words used in the section but can it be said that it is a construction of which the section is absolutely incapable? That seems a somewhat extreme view, given the finding by the Court of Criminal Appeal (admittedly, it would seem, without argument) in Finnegan that this was in fact what the section meant. It is surely beyond argument that it is what was intended.

In the result, it is thought that whether a schematic or a literal construction is adopted of the relevant legislation, the obiter dicta in Ruttledge and Gilsenan are of doubtful authority. Clearly, however, the sensible course to adopt would be to introduce amending legislation putting the matter beyond any doubt.

H. Husband and Wife¹¹⁷

33.

Husband and wife “stand in no special position”¹¹⁸ with regard to the offence of receiving: either may receive property stolen or received by the other.¹¹⁹ Of course, the nature of family life is such that stolen goods may be left at a house where they are taken in by one of the spouses at a time when the other spouse is out. When he or she returns, the question may arise as to whether his or her action (or more troublesomely, inaction) constitutes receiving. If the goods were left in pursuance of a previous authorisation by the absent spouse, then no great difficulty arises: the absent spouse would normally be guilty of receiving. If, however, there was no prior agreement, it seems that the

absent spouse may be convicted where he or she “adopted” the act of his or her spouse in taking in the goods. In Dring,¹²⁰ Martin B observed that “[a] man is said to adopt an act when it has been done for him, or by his previous authority, and he afterwards recognises it.”¹²¹ In that case the conviction of the husband was quashed because the Court for Crown Cases Reserved was not satisfied that the jury verdict to the effect that he had adopted his wife's receipt of the stolen goods had intended to attach to the concept of adoption the narrowly drawn definition given by Martin B. Cockburn CJ (with whom the other Judges concurred) said:

This notion of “adoption” involves some other difficulties in relation to receiving stolen goods. In cases where the act has not been done with his or her previous authority, a question may arise as to whether the reception by the absent spouse took place before the adoption. Inevitably the absent spouse, on his or her return to the home, will have to look at, or be told about, the stolen goods there, before he or she decides whether to adopt what has gone before. One conceptual solution is to regard the act of adoption as constituting the reception by the spouse who has returned to the home.¹²³ But there may be cases where a period of passive acquiescence is followed by a more active participation. In these circumstances, it may be argued that the accused should not be convicted on account of the failure of the mens rea to coincide with the reception.

In the wake of the Supreme Court decision in Walsh,¹²⁴ holding that the presumption of marital coercion was inconsistent with the Constitution, there is no need to consider the earlier decisions¹²⁵ on this aspect of receiving.

34.

As regards the position relating to receiving goods stolen by one spouse from another, it may happen that by reason of the restrictions contained in section 9 (3) of the Married Women's Status Act 1957¹²⁶ the receiver of what would be stolen goods, save for this provision, will be exempt from responsibility under section 33. This was held in Creamer,¹²⁷ already mentioned, where the English Court of Criminal Appeal construed an equivalent statutory provision as meaning, not simply that a spouse falling within its scope could not be prosecuted, but that no crime was committed by that spouse. Thus the person receiving the goods was not guilty of the offence of receiving since they were not stolen goods.

 

 

I. Knowledge

(i) “Knowledge” In General

35.

Section 33 (1) of the Larceny Act 1916 requires knowledge on the part of the defendant that the goods were stolen. What does “knowledge” mean in this context? Since it is necessary for the prosecution to establish that the goods in fact have been stolen, the only type of case that can warrant a conviction is where the defendant believed that the goods were stolen and his belief was correct. Again, however, one must ask what is meant by “belief” in this context? A person's belief may range from complete certainty through confident belief to mere suspicion. The strength of the belief may also bear a close relationship to the strength of the evidence on which that belief is founded, but there is no necessary connection. Thus, it is possible that a person may be fully convinced that goods were stolen, although his conviction is based on slight evidence only. Conversely, it may not occur to a person that goods were stolen, even though the evidence is compelling and such that no reasonable person could conclude otherwise. Moreover, in the latter case, a person confronted with such compelling evidence may simply exclude from his mind the necessary inferences which a reasonable person will draw.

36.

In two decisions since Independence, the question of the relationship between knowledge and belief has been discussed by the Irish courts. In both of these cases, the courts took the position that knowledge, as distinct from belief, was essential.

In Berber and Levey,¹²⁸ a decision of the Court of Criminal Appeal in 1944, Black J, delivering the judgment of the Court, said:

37.

In Hanlon v Fleming,¹²⁹ the Supreme Court addressed the question. The case was concerned with extradition, and the accused

 

 

contended that section 22 of England's Theft Act 1968, which included the expression “knowing or believing”, did not correspond with section 33(1).

Henchy J, with whose judgment the other members of the Court, O'Higgins CJ and Griffin J, agreed, said:

Having quoted from Black J's judgment, for the Court of Criminal Appeal in Berber and Levey,¹³¹ Henchy J said:

Henchy J also cited¹³³ the following passage from Glanville Williams:

 

 

38.

In the light of these decisions, the law in Ireland can be stated to be as follows:

(ii) Knowledge of Category of Crime¹³⁵

39.

In the English Divisional Court decision of Nieser,¹³⁶ in 1958, it was held that, where a person is charged with receiving property obtained under circumstances amounting to misdemeanour, the prosecution must prove that he “knew that the property fell into the general category of property which has been obtained under circumstances which do in law amount to misdemeanour”,¹³⁷ though it was not necessary to prove that he “knew that [it] was obtained under circumstances which amount in law to the specific misdemeanour by which [it was] in fact obtained”.¹³⁸ On the other hand, said Diplock J, for the Court, it was:

The Court was willing to apply the same rules as to property obtained by felony as it had articulated in relation to property acquired by misdemeanour. Diplock J said:

Nieser met with a critical response from the commentators.¹⁴¹ As one of them observed:

 

 

Of course, the decision in Nieser was perfectly correct having regard to the manner in which section 33 (1) was drafted. The “astonishing and absurd” result is thus attributable to the subsection rather than to the court.

The fact that the boundary line between felony and misdemeanour may often be difficult to draw on the facts of a particular case gives rise to difficulties in this context. As has been pointed out, this line is “often arbitrary and finely drawn, as between obtaining by false pretences and larceny by a trick, and the defendant might well not know of the exact circumstances”.¹⁴³

(iii) When Must the Accused Have the Guilty Knowledge?

40.

In Johnson,¹⁴⁴ Grantham J stated that:

In Lillis,¹⁴⁵ the Irish Court of Criminal Appeal referred to the English case of Tennet¹⁴⁶ with approval and applied the principles it embraced. The Court held that there was no basis for the applicant's contention that the words used by the trial judge in his direction to the jury had conveyed to them that they should convict if guilty knowledge supervened upon the innocent receiving. The case involved a motor car which had admittedly been stolen and which was in the possession of the applicant for a period of at least ten days. The trial judge had told the jury that if “the evidence is such as to satisfy you that while it was in his possession he had guilty knowledge...and if you can reasonably infer that the accused had guilty knowledge, that he knew it was stolen, then you can convict him in the absence of any explanation on his part,” and “the question you have to decide is, have you sufficient facts and circumstances there to suggest to you a reasonable inference of guilty knowledge on the part of the accused that he was in possession of and sold a car which was not his own car, and which was a stolen car? You have that possession and sale by him within two weeks of the theft of the car in question and, as I told you, if you are satisfied that these circumstances do point to guilty knowledge on his part, then in the absence of an explanation you are entitled to convict.”

In spite of the Court of Criminal Appeal's holding in this case, it can perhaps be argued that the charge did not adequately bring out the requirement that the knowledge be at the time of the reception. However, the report of the case mentions¹⁴⁷ that the trial judge in his charge first directed the jury “more than once” to concentrate their attention on the question whether the applicant received the car knowing it to have been stolen.

 

 

41.

In Matthews¹⁴⁸ the appellant admitted that he knew the property was stolen at the time when he received it but he claimed that he received it with the intention of handing it over to the police. He sent a telephone message to the police and made an appointment; but, when the police came to see him, he did not hand over the property. He was placed in a police car and taken off in custody to a police station. Somehow or other, while in the car, he managed to slip the stolen property behind the seat of the car. It was found the following day.

The Chairman of Quarter Sessions directed the jury as follows:

The appellant was convicted. The Court of Criminal Appeal quashed the conviction. Goddard LCJ (for the Court) said:

 

 

42.

In Curlija,¹⁵² a decision of the Supreme Court of South Australia, the defendant was convicted of receiving stolen money. A thief, one Stic, between 3 a.m. and 4 a.m. threw the money on the floor of the defendant's apartment, saying to him, “I have got some money for you”, and mentioning the amount ($1,000). According to the defendant's evidence he said that he told Stic “It is too much for me”, but Stic replied: “Just keep it, I got plenty”. Stic then left. The defendant then went back to bed. When he got up, at about 6 a.m., he picked up the notes from the table and put them in a wardrobe. Later he and an associate heard about the robbery and it occurred to the defendant that the notes had been stolen. Later still, probably on the following day, when a large group of policemen appeared in the vicinity, he hid the money.

In upholding the conviction, the Court stated:

This approach is of debatable merit. It could lead to a conceptual justification for holding criminal a determination to keep the goods, made after reception. The argument would be that, unless the defendant clearly decided not to take the goods at the time of reception the fact that his mind remained open let the “process” of reception continue until he had made up his mind, one way or the other.

J. Evidential Aspects

(i) In General: The “Doctrine” of “Recent Possession”

43.

We now must consider how the prosecution proves the case of receiving stolen property. Sometimes, of course, the position is reasonably clear. A receiver is caught in the act where the circumstances of the reception point unambiguously to his guilt; or, perhaps, a person confesses to being a receiver. Frequently, however, the case is less clearcut. The prosecution may invoke the facility afforded by section 43(1),¹⁵⁴ but the evidence thus permitted¹⁵⁵ to be adduced goes only to the question of proof of guilty knowledge.

Most frequently, the evidence as to the guilt of the accused is circumstantial. There is nothing wrong with circumstantial evidence if it is of sufficient potency to prove the case beyond reasonable doubt. The fact that the accused was found in possession of recently stolen goods may, in some circumstances at least, be regarded as circumstantial evidence worthy of close attention by the jury.¹⁵⁶ Glanville Williams has said that it is “difficult or impossible” to draw a firm boundary between circumstantial evidence and presumptions of fact.¹⁵⁷

 

 

Possession of recently stolen goods without explanation gives rise to a presumption of fact (also called a discretionary presumption or a provisional presumption) that the person in possession is guilty of larceny or of receiving the property. Once the prosecution have raised this presumption of fact, the trial judge must let the case go before the jury. Such a presumption shifts the evidential burden from the prosecution to the defence. It does not affect the legal burden of proof which remains on the prosecution at every stage to satisfy the jury beyond reasonable doubt of the guilt of the accused.

Apart from their efficacy in getting the prosecution case to the jury, presumptions of facts are “the lowest and least effective presumptions”.¹⁵⁸ The evidential burden is light and is easily discharged: “if the defendant gives any explanation of his possession consistent with his honesty so that the jury are left in doubt, he is entitled to an acquittal”.¹⁵⁹

If the accused gives no evidence at all, the judge should tell the jury that they may convict on the prosecution evidence, fortified as it is by the presumption of fact. We will see later, in our examination of the Oglesby¹⁶⁰ decision, how this presumption of fact was wrongly perceived as having acquired the status of a legal doctrine.

44.

In the leading English case of Schama and Abramovitch,¹⁶¹ Reading LCJ said:

45.

In Finnegan,¹⁶² an Irish Court of Criminal Appeal case of 1933, the emphasis on the onus remaining on the prosecution was somewhat qualified. FitzGibbon J for the Court, said:

 

 

The first sentence gives rise to no concern, but the second sentence might suggest that, once “recent possession” has been established, this would be sufficient to sustain a conviction.

In Berber and Levey,¹⁶⁴ the Irish Court of Criminal Appeal addressed the issue. Black J, for the Court, said that:

In A.G. (Comer) v Shorten,¹⁶⁸ Davitt P quoted the passage from Reading LCJ's judgment in Schama and Abramovitch and said:

46.

In Oglesby,¹⁷² the Court of Criminal Appeal again addressed the question. Kenny J, speaking for the Court, said:

 

 

Kenny J quoted the passages from Schama and Abramovitch¹⁷⁶ and A.G. (Comer) v Shorten¹⁷⁷ set out above, and said:

In Neiser,¹⁸² Diplock J, speaking for the court, said:

More recently, McCullough J, speaking for the English Court of Criminal Appeal, in Ball.¹⁸³ said:

There is nothing in these passages – or in any other judgments that we are aware of in Ireland and England – which should inhibit a jury from drawing appropriate inferences of fact where stolen property is found without explanation in the defendant's possession, even though the theft was not “recent” (whatever that means). If gold bullion to the value of thirty million pounds stolen from Fort Knox turns up in a bank vault in Dublin thirty years later, and the customer in whose name it is lodged declines to give any explanation, it would appear that the jury would be entitled to convict if satisfied beyond reasonable doubt that he had received the bullion knowing it to be stolen. In such a case, it would appear, as a matter of common sense, that they should be

 

 

entitled to draw such an inference. More characteristically, however, prosecutions for receiving are brought where the goods have been recently stolen and hence the evolution of the “doctrine” under consideration.

It is of interest to note that the “doctrine” appears to have arisen from a misunderstanding by counsel for the appellant in Schama and Abramovitch of the trial judge's charge. The trial judge – as quoted – said nothing at all in his charge about the fact that the goods were recently stolen and the inferences that might be drawn from that fact. The appeal was allowed principally on the ground that he had failed to remind the jury that the burden of proof rests at all times on the prosecution. The impression seems to have developed, however, that the court was laying down some sort of doctrine peculiar to recently stolen goods. It would seem that this mistaken notion has been finally expelled from the law in both Ireland and England as in other jurisdictions.

47.

If the “so-called doctrine”¹⁸⁴ of recent possession has no distinctive evidential implications, then there is little point in worrying over the question whether possession is or is not “recent”. Nevertheless the courts have devoted much attention to this issue over the years. Samuels notes that:

“An Explanation Which Might Reasonably be True”

48.

The reference to an explanation which “might reasonably be true” has given rise to some discussion. In Berber and Levey,¹⁹¹ the applicants had given an explanation of how they bought stolen goods from the thief, believing that he had got them honestly. The Judge told the jury, correctly, that, if this explanation might reasonably be true, they ought to acquit on the receiving charges. But then the Judge went on to tell them that, if the explanation might not reasonably be true, it would be their duty to convict. The Court of Criminal Appeal held that the effect of these two inconsistent instructions was that the jury had been “presented with an illusory antithesis on a vital issue”.¹⁹² Since it was impossible to be sure that the jury had not acted on the second of these instructions, the conviction could not stand.

 

 

In Garth,¹⁹³ the English Court of Criminal Appeal sought to clarify what was said in Abramovitch and Schama on this question. The Recorder had stated the law as follows:

This direction met with the disapproval of the Court of Criminal Appeal. Goddard LCJ (for the Court) said:

In Rawther,¹⁹⁵ a decision of the Supreme Court of Ceylon in 1924, Bertram CJ referred to Abramovitch and Schama and said:

 

 

In Melody,¹⁹⁸ a decision of the Irish Court of Criminal Appeal in 1967, Ó Caoimh P, for the Court, said that in a prosecution under section 33 for receiving

The trial judge had directed the jury to the following effect:

The Court of Criminal Appeal held that this direction was “misleading in that it conveyed to the jury that the untruth of the explanation offered by the accused established his guilt”.¹⁹⁹

More recently, in Rooney,²⁰⁰ Finlay CJ, speaking for the same court and referring to the principle in Oglesby, said:

It is respectfully submitted, in the light of Melody and the other authorities referred to, that this states the law too favourably from the point of view of the accused.

49.

The mere failure by the accused to give an account of how he became possessed of property or the giving of a false account by him will not suffice to show that he stole or received the goods in his possession, unless there is other evidence indicating that the goods had been stolen. As Griffith CJ said in the High Court of Australia decision of Trainer:²⁰¹

 

 

(iii) Evidence as to Possession of other Stolen Property and as to Previous Convictions²⁰²

50.

Section 43 of the Larceny Act 1916 provides as follows:

(a) Possession of Other Stolen Property

51.

The substance of paragraph (a) first appeared in section 19 of the Prevention of Crime Act 1871. In Ballard²⁰⁵ in 1916, before the 1916 Act was enacted, Reading LCJ said:

It is a matter for the discretion of the Court to decide whether the other goods not the subject of the indictment should be produced in court and evidence be given as to their being found in the possession of the accused until after they have been shown to have been stolen.²⁰⁶

 

 

If evidence is admitted as to stolen goods having been in the possession of the accused on an earlier occasion, and the evidence does not prove the fact that these goods were stolen, the Judge should direct the jury to disregard the evidence.²⁰⁷ In Girod,²⁰⁸ Alverstone LCJ observed that “[t]he non-production of a receipt is no evidence that a thing is stolen, and one hopes that no other rule will ever prevail”.

Where section 43(1)(a) applies, the prosecution is not limited to giving evidence merely of the fact that stolen property was found in the possession of the accused: in Smith,²⁰⁹ the English Court of Criminal Appeal was of opinion that “the same evidence can be given with regard to statements by the prisoner and to the circumstances in which other stolen goods were found in the prisoner's possession as could be given on the trial of an indictment for receiving those goods”.

In Hayes,²¹⁰ it was held that the fact that the stolen property of which the accused was earlier found to be in possession is the subject of a second and similar indictment for receiving against the accused and about to be tried at the same assizes is not a reason for excluding evidence as to such possession. Lopes J was of the opinion that the 1871 statute contained “no limitation of the kind suggested”²¹¹ It is possible that courts today would be more disposed to respond to the potential prejudice for the accused.

Section 43 (1) does not have the effect of preventing the adduction of evidence which would have been available in the absence of the statutory provision. Thus, in Powell,²¹² evidence by the thief that he had sold other stolen property to the appellant was held admissible.

(b) Previous Convictions

52.

When it comes to giving evidence of previous convictions,²¹³ under the facility afforded the prosecution by section 43(1)(b), the courts have shown a clear appreciation of the dangers of injustice resulting for the defendant unless the facility is placed under strictly controlled limits. In Davies,²¹⁴ Lord Goddard CJ said that this type of evidence was:

Lord Goddard expressed the “true rule”²¹⁵ when he said:

 

 

It is worth noting that evidence as to a previous conviction may be admitted “for the purpose of proving guilty knowledge”. In List,²¹⁷ the “real issue”²¹⁸ was not that of guilty knowledge, but whether or not the accused ever came into the possession of the stolen goods. Roskill J held that, in the particular circumstances of the case, it was appropriate to exclude evidence as to previous convictions. The only other evidence against the accused was the otherwise uncorroborated evidence of the thief.

Roskill J said:

Roskill J reached his decision, first, as a matter of construction of the statute and, secondly, as a matter of principle, “the principle being that a trial judge... has an overriding discretion to exclude any evidence the prejudicial effect of which hopelessly outweighs its probative value”.²²⁰

In Herron,²²¹ the English Court of Criminal Appeal held that Roskill J's judgment in List was “correct and sound in law”.²²² The Court adopted and followed his decision to the fullest extent.

Samuels states:

(c) Constitutional Implications of Section 43 of the Larceny Act 1916

53.

Misgivings have been voiced as to the constitutionality of the section, although it does not appear to have been challenged in any case (perhaps because it is not availed of with any great frequency by the prosecution). The doubts arise as a result of the decision in King v The Attorney General.²²⁴ It was there held that s. 24 of the Vagrancy Act 1824 which created the offence of “loitering with intent” by a “suspected person or reputed thief” was inconsistent with the provisions of the Constitution. In the High Court, McWilliam J found that the terms of the section were inconsistent with Article 38.1 of the Constitution which requires that no person shall be tried on a criminal charge save in due course of law, stating that:

The learned judge also observed that:

 

 

In the Supreme Court, the conclusion of McWilliam J as to the unconstitutionality of the section was unanimously upheld, but with some difference in emphasis in the judgments as to the basis of unconstitutionality. O'Higgins CJ confined himself to saying that he agreed with the reasons given by McWilliam J. Henchy J considered that the ingredients of the offence and the mode by which it could be committed exhibited so many features which offended the Constitution that it was unnecessary to specify the manner in which it violated Article 38.1. Kenny J was satisfied that the ambiguity and uncertainty of the offence which the section purported to create rendered it unconstitutional.

King, accordingly, cannot be regarded as authority for a general proposition that any law permitting the introduction of evidence of previous convictions of the accused, except in relation to sentencing, offends the constitutional guarantees of a trial in due course of law and of fair procedures in such trials. It is, moreover, a feature of King that the impugned section renders the previous convictions one of the ingredients of the offence. In the section under consideration, the introduction of the evidence is permitted solely for the purpose of establishing guilty knowledge. All that can be safely said, at present, is that King at least raises a doubt as to the constitutional propriety of the section which must be borne in mind when considering its retention in our law and a fortiori its possible extension.

K. The Relationship Between Larceny and Receiving²²⁷

54.

The relationship between larceny and receiving has given rise to some problems. The courts are quite satisfied that “[t]he same person cannot be guilty of...stealing...and of receiving”.²²⁸ In the Supreme Court decision of Carney²²⁹ in 1953, O'Byrne J regarded it as being “of course, elementary” that a charge of receiving implies that some person other than the accused stole the goods.

In the Supreme Court case of O'Leary v Cunningham²³⁰ in 1980, Kenny rejected as “nonsense”²³¹ the view that, when several persons rob or steal, they can be regarded as having received the goods from each other. Kenny J was satisfied that “no one can rob or steal and at the same time receive”.²³² He added:

In O'Leary v Cunningham, the defendant was charged with robbery and receiving. The District Justice convicted him of receiving, and made no order in respect of the charge of robbery. The defendant appealed to the Circuit Court. The evidence there established that the defendant had actually participated as a principal in the robbery. The

 

 

Circuit Court Judge stated a case to the Supreme Court, seeking to establish whether the Court on these facts had power to convict the appellant of receiving, and, if not, whether it might convict him of robbery.

The Supreme Court held that the answer to the first question was clearly in the negative. Kenny J first established that the District Court verdict was incorrect:

Although the Circuit Court had certain powers²³⁵ to substitute a conviction for one offence for that of another, Kenny J was not aware of any statutory provision which allowed any Court to find an accused guilty of robbery when he had been charged with receiving stolen goods. Kenny J accepted the argument made by counsel for the appellant that the doctrine of autrefois acquit protected the defendant from conviction in the Circuit Court for the offence of robbery when he had already been acquitted of that charge in the District Court. The fact that the District Justice had failed to record a verdict²³⁶ was irrelevant. Kenny J did not wish to conceal his reluctance to come to this conclusion, since it had “the effect that a man clearly guilty of the serious offence of robbery must be acquitted.”²³⁷

55.

In the English case of Seymour,²³⁸ Lord Goddard CJ set out a strategy to deal with cases where it may not be clear whether the accused was the receiver or the thief. He said:

 

 

Samuels states that:

L. Thief Aiding and Abetting the Receiver

56.

Although a thief will normally be charged with larceny rather than receiving, it seems that he may be open to a charge of aiding and abetting the receiver where he passes on the stolen goods to him. In Carter Paterson & Pickfords Carriers Ltd v Wessel,²⁴² the appellant was acquitted of larceny but convicted of receiving. The Divisional Court held that the conviction was proper.

Lord Goddard CJ said:

In spite of the possibilities afforded by Carter Paterson & Pickfords Carriers Ltd v Wessel, there is much to be said for the view that “a simple count for larceny against the thief would appear to be preferable in practice”.²⁴⁴

M. Incitement to Receive²⁴⁵

57.

Where a person incites another to receive he is guilty of an offence.²⁴⁶ This is so even if the other person does not in fact receive.

 

 

Where there was no possibility of the other person's engaging in an act constituting receiving, the position becomes somewhat complicated. It would appear that the defendant should be liable if he believed that there was such a possibility,²⁴⁷ though the cases on attempted receiving suggest that where there was in fact no stolen property, an indictment for incitement would fail.²⁴⁸

N. Section 13 of the Criminal Justice Act 1951

58.

Section 13 of the Criminal Justice Act 1951 provides as follows:

Subsection (2) of section 13 seeks to make possession of property that may reasonably be suspected of being stolen or unlawfully obtained an offence unless the defendant gives a satisfactory account to the Court of how he came by it. However that is not what the subsection actually says. It provides that a person charged with possession of such property “and who does not give an account to the satisfaction of the Court how he came by it” is guilty of an offence. It would appear that after section 13(2) was enacted, many successful prosecutions were brought until, in the mid-sixties, a District Justice adverted to this point and dismissed a prosecution. As the sub-section is drafted, a person cannot commit an offence until he actually appears in Court. A person cannot be charged with an offence before he commits it. The Attorney General of the day, subsequent Attorneys General and the Director of Public Prosecutions all saw the force of the District Justice's logic and the section has fallen into desuetude.

It is interesting to note that earlier statutory provisions which section 13(2) replaced were drafted in a similar manner. Moreover, equivalent legislation in some other jurisdictions is drafted in the manner which has given rise to concern here.

59.

If we set aside for a moment the insurmountable difficulty perceived by the prosecuting authorities, it is of interest to examine some featues of the subsection. First, where the property is on the person's premises with his knowledge, it falls within the scope of the subsection even though it is not in his possession. This relieves the prosecutor from having to rely on the admittedly flexible concept of possession²⁴⁹ in cases where the property is proven merely to be on the

 

 

premises with the knowledge of the person charged. Second, a person who conveys “in any manner” the property in question falls within the scope of the subsection even in cases where this conduct does not constitute receiving.²⁵⁰

Thirdly, it should be noted that it is not necessary to show that the person ought to have suspected that the property was stolen or unlawfully obtained when that person came into its possession. Thus the requirement as to the contemporaneity of the act of receiving and the guilty knowledge, which applies in relation to the offence of receiving,²⁵¹ has no counterpart in section 13(2). Reference to guilty knowledge brings us to the question of mens rea under the subsection. It should be noted that the test is an objective one, namely, that the property “may be reasonably suspected of being stolen or unlawfully obtained”. It is thus not necessary to prove what the person actually believed. The subsection does not expressly mention whether it is the time the property was in possession of the accused (or on his premises with his knowledge) or the time of trial that is appropriate to determine the question whether the property may be reasonably suspected of being stolen or unlawfully obtained.

The present tense suggests strongly that it is the time of trial. If this is so, it ought be considered that hardship and injustice could be caused to a person in a case where, at the time he had possession of the property, there was no reason to have doubts as to the legitimacy of their provenance. Of course, the accused is free under the subsection, to provide a satisfactory explanation but it must at the least be considered unfair to expose him to the risk of conviction in the event of his unwillingness or inability to give this explanation. If the words in question were to be construed as referring to the time when the property was in the person's possession, this would impose a standard of objective due care which would be far easier to defend. Nevertheless, as we have mentioned, the language of the subsection seems to suggest the contrary interpretation.

60.

The subsection also raises some doubts about the burden of proof. Presumably the prosecution must prove beyond reasonable doubt (i) that the property was in the possession of the accused or on his premises with his knowledge or conveyed by him, and (ii) that the property may be reasonably suspected of being stolen or unlawfully obtained. But the effect on the onus of proof of the reference to the person's failure “to give an account to the satisfaction of the Court” creates another problem. On one interpretation, it leaves to the Court the function of determining the quantum of evidence which satisfies it. It may, however, be argued that some specific standard is envisaged. To “satisfy” a Court would appear to be a formidable task, greater than that of simply giving some evidence, and greater than that of proof on the balance of probabilities. Indeed, it may possibly be that the standard envisaged is that of proof beyond reasonable doubt.

O. The Criminal Justice Act 1984

61.

The Criminal Justice Act 1984 includes a number of provisions

 

 

that are of relevance to the subject of receiving stolen goods. Section 16 is of most explicit relevance. It provides as follows:

62.

A number of points about this section may be noted. Subsection (4) is of vital practical importance. It means, for example, that information which a person gives in compliance with subsection (1) may not be admitted in evidence against that person or his or her spouse in any proceedings for receiving stolen goods. Thus, a Garda who is suspicious as to the provenance of the goods might in many cases be reluctant to resort to the procedure permitted by section 16(1), because to do so may effectively close the door to a later prosecution for receiving. If the suspicion is indeed well founded and the case is otherwise a strong one, the receiver would be only too happy to admit his guilt, thereby making it very difficult to convict him of any offence, not even under section 16 since he would not have failed or refused to give an account of how he came by the property. Of course, evidence that might otherwise tend to implicate the defendant may always be given, in spite of subsection (4), but in practice this other evidence often will not be enough to sustain a conviction. None of the information given by the suspected person will be admissible and the effect of this may be to exclude valuable evidence.

 

 

In practice a Garda might consider it desirable to seek information as to the provenance of the goods without complying with the requirements of subsection (3). The case where resort to section 16 may prove attractive is where it seems²⁵² absolutely clear that a suspect will refuse to give an account of how he came by the property even after he had been told in ordinary language what the effect of this refusal might be.

One matter of interpretation which is not entirely clear concerns the sequence of facts specified in paragraphs (a) to (d) of subsection (1). Logically paragraph (c) must follow after paragraphs (a) and (b), and paragraph (d) must follow after paragraphs (a), (b) and (c); but the question arises as to whether, temporally speaking, paragraph (b) must follow paragraph (a). In other words, is it necessary that the Garda should actually have reasonable grounds for believing that an offence of stealing etc. has been committed before he finds any person in possession of any property? The answer would appear to be no. The entire subsection is drafted in a manner which seems to indicate that pains were taken to ensure that no such temporal sequence is necessary. It would have been quite easy to add to paragraph (b) some extra words, such as “which he believes may comprise part or all of such property”, if a temporal sequence had been envisaged. The sequence may be explained by an assumption that goods will be found on premises and that before they are found, the Garda will have made an application for a search warrant under s. 42 of the Larceny Act 1916.

63.

Section 18 of the 1984 Act should also be noted. It provides as follows:

Although the section does not appear to have been directed at the offence of receiving stolen property, it is drafted in such a way that it may be of some relevance. If property believed stolen may be described as an “object”, then it may well be that a Garda can reasonably believe that the presence of stolen property, which is in the possession of a person, may be attributable to his participation in the commission of the offence in respect of which he is arrested, e.g. larceny or receiving stolen property.

Thus, the effect of section 18 would appear to be that the failure or refusal to account for property in one's possession in such circumstances (a) would enable the court or jury to draw such inferences from the failure or refusal as appear proper, and (b) on the basis of these inferences, would be capable of amounting to corroboration of any other evidence in relation to which the failure or refusal is material. It is true that a person is not to be convicted of an offence solely on an inference drawn from his or her failure or refusal to account for the presence of the property; but in some cases at least there will be other evidence. An important limitation imposed by section 18 is, of course, that the person must have been already arrested without warrant by a member of the Garda Síochána;²⁵³ thus, the provisions of the section will not be capable of being availed of speculatively.

64.

Finally, reference may be made to section 19, which is similar to section 18, but concerns inferences arising from the presence of a

 

 

person at a particular place “at or about the time the offence in respect of which he was arrested is alleged to have been committed”. Again section 19, like section 18, appears capable of referring to the offence of receiving, especially to cases where the police arrest a person after a “tip off” that stolen property is to be handed over at a certain time and place. Again the restriction regarding arrest without warrant should be noted.

P. Attempted Receiving

65.

It is, of course, quite possible for a person to be guilty of the offence of attempted receiving. He may, for example, be thwarted just as he is about to complete the reception of the stolen goods. A more difficult question arises where the goods are not actually “stolen goods” at the time they are received. Clearly the accused is not guilty of the full crime of receiving, but is he guilty of an attempt to receive?

In Haughton v Smith,²⁵⁴ the House of Lords held that, where the goods were not stolen goods at the time of the handling, the accused, regardless of his mens rea, could not be convicted of attempted handling. Lord Hailsham LC said:

Q. Receiving as a Summary Offence

66.

Section 97 of the Larceny Act 1861 provides as follows:

In contrast to section 33(1) of the 1916 Act, all that is necessary under section 97 is that the defendant knows that the property has been “unlawfully come by”. Therefore, “[t]he fact... that he may think the property has been taken by felony, misdemeanour, or summary offence becomes irrelevant. It is enough that he knows the property, which

 

 

has in fact been taken in circumstances amounting to a summary offence, to have been taken by some criminal means.”²⁵⁶

The requirement that the defendant's knowledge must be shown to exist at the time of the receiving applies to an offence under section 97²⁵⁷ as it does to an offence under section 33 of the 1916 Act.

67.

Apart from section 97 of the 1861 Act, section 2 of the Criminal Justice Act 1951 permits summary trial of (inter alia) an offence under section 33 of the Larceny Act 1916, involving property the value of which does not, in the opinion of the Court, exceed £50 (amended to £200 by section 19 of the Criminal Procedure Act 1967) if the Court is of opinion that the facts proved or alleged constitute a minor offence fit to be so tried, and the accused, on being informed by the Court of his right to be tried with a jury, does not object to being tried summarily.

 

 

FOOTNOTES

1 See Kenny's Outlines of Criminal Law, ch. 18 (19th ed., by J W Cecil Turner, 1966), Smith & Hogan. Criminal Law, 453–466 (1st ed., 1965), Archbold, Pleading, Evidence & Practice in Criminal Cases, 767–780, paras. 2081–2104 (36th ed., by T Fitzwalter Butler & M Garsia, 1966), Russell on Crime, chs. 66–69 (11th ed., by J W Cecil Turner, 1958), P A Ó Síocháin, The Criminal Law of Ireland, ch. 12 (6th ed., 1977), J Hall, Theft, Law and Society, 53–62, 70–76, ch. 5 (2nd ed., 1952), Samuels, Receiving: The Present State of the Cases, 3 Sol. Q. 12 (1964), Prevezer, Some Aspects of Receiving, 13 Current L. Prob. 60 (1960), Anon., Receiving Stolen Goods Well Knowing Them to Have Been Stolen – Difficulty of Proof of Offence, 85 Ir. L.T. & Sol. J. 25,31 (1951), Binchy, Receiving Stolen Property: Time for Statutory Extension?. 105 Ir. L.T. & Sol. J. 189, 195 (1971).   2 The common law misdemeanour of receiving appears to remain with regard to any form of receiving not specifically covered by the statute: cf. Archbold, op. cit., para. 2081.   3 See Roonev. C.C.A., 15 December 1986 (99–101/86).   4 In Smith, 6 Cox C.C. 554, at 556 (C.C.A., 1855), Erie, J said:   “'Possession' is one of the most vague of all vague terms, and shifts its meaning according to the subject-matter to which it is applied – varying very much in its sense, as it is introduced either into civil or into criminal proceedings. ” In recent years there have been many case dealing with the scope of the concept of possession in respect of drugs offences. These cases provide some useful insights but it would be wrong automatically to incorporate all of their dicta into the context of the offence of receiving stolen property: cf. C R Williams & M S Weinberg, Property Offences, 349 (1986).   5 98 I.L.T.R. 139, Frewen, vol. 1, p. 294 (C.C.A., 1964). See also Minister for Posts and Telegraphs v Campbell, [1966] I.R. 69, at 73–74 (Davitt P).   6 98 I.L.T.R., At 140, Frewen, vol. 1, p. 296.   7 I.L.T.R., at 140, Frewen, vol. 1, p. 296.   8 Id.   9 3 Ir. L.T. & Sol. J. 348 (Cr. Cas. Res., 1869).   10 The report merely states: “From the bag the letters and parcels were sorted he might have taken them; but so might have others”.   11 3 Ir. L.T. & Sol. J., at 348.   12 Gleed. 12 C.A.R. 32 (Ct. Crim. App., 1916).   13 C.C.A. 6 November 1968 (No. 38 of 1968), Frewen, vol. 1, p. 338.   14 36th ed., para. 2096.   15 Frewen, vol. 1, at 342 (per Henchy J, for the Court).   16 6 Cox C.C. 353 (Ir. Ct. of Crim. App., 1853).   17 Id., at 356.   18 C.C.A., 15 December 1986 (99–101/86).   19 P. 2 of Finlay CJ's judgment.   20 41 C.A.R. 138 (Div. Ct., 1957), analysed by McDermott, 1 Tasmanian U.L. Rev. 113 (1958).   21 41 C.A.R., at 141. Cf. Burke, 9 J.L.R. 596 (C.A., 1967).   22 2 Den. 37, 169 E.R. 408 (1850).   23 Id., at 37 and 408, respectively.   24 Id., at 48 and 412, respectively. The question of receiving by one spouse from another is considered infra, para. 33. As to receiving by a parent from a child, see Smith, 25 C.A.R. 119 (C.C.A., 1935).   25 [1907] V.L.R. 1 (Full Ct., 1906).   26 Id., at 5–6. Note that in such circumstances a conviction could now be obtained in England under s. 22(1) of the Theft Act 1968.   27 Anon., Another Aspect of “Receiving”, 109 J.P. 52 (1945).   28 Id., at 52.   29 See Whelan, [1934] IR 518 (C.C.A., 1933). Cf. Crooks, [1981] 2 N.Z.L.R. 53 (C.A.). In England it has been held that the test of whether a defendant was impelled by duress to act as he did is objective, not subjective, and accordingly a defendant is required to have the self-control reasonably to be expected of an ordinary citizen in his situation: cf. R v Howe and Another, [1987] 1 All ER 771. The subject of provocation raises some related issues: see McAuley, Anticipating the Past: The Defence of Provocation in Irish Law, 50 Modern L. Rev. 133 (1987).   30 Cf. infra, para. 131.   31 Smith & Hogan, Criminal Law, 456 (1st ed., 1965).   32 See Anon., Receiving Proceeds of Misappropriated Property, 73 L.J. 343 (1932). Decisions prior to the 1916 Act include Walkley, 4 C. & P. 132, 172 E.R. 640 (1829) and Robinson, 4 F. & F. 43, 176 E.R.

 

 

32 459 (1864). In Walkley the accused was acquitted of receiving six promissory notes of a value of £100 each where the evidence showed that the thief had changed the notes into £20 notes at different banks. It seems clear that the basis of acquittal was that the accused had been charged with receiving the original notes rather than their proceeds: cf. id., at 133 and 640 respectively. In Robinson, the defendant had received a mixture of stolen oats and peas from a thief. The indictment charged a receiving of a mixture which had been stolen, knowing it to have been stolen. The evidence of the thief was that the mixing of the elements had taken place after the theft. Pollock CB directed an accquittal on the basis that, contrary to the terms of the indictment, a “mixture” had not been stolen, and thus the defendant could not have received a stolen mixture. The jury declined to return a verdict of not guilty, declaring that, when the thief had mixed the oats and peas, it had become a mixture. Pollock CB, “with some firmness”, told the jury that they were bound to accept his direction, in point of law, to return a verdict of acquittal, and he peremptorily directed them to do so. The jury, “after some hesitation and with great reluctance”, at length did as Pollock CB required. In the Queensland decision of Richards, 28 Q.J.P.R. 88 (Sup. Ct., Brisbane, 1934), Webb, J. followed Walkley. As a result, section 433 of Queensland's Criminal Code, which had not contained an extended definition of property on the lines of section 46(1) of the Larceny Act 1916, was amended, by section 18 of the Criminal Code Amendment, Act of 1943, which inserted into section 433 a provision to the effect that:   “where the thing so obtained has been––   (1) converted into other property in any manner whatsoever or   (2) mortgaged or pledged or exchanged for any other property, any person who knowing––   (a) that the said property is wholly or in part the property into which the thing so obtained has been converted or for which the same has been mortgaged or pledged or exchanged; and   (b) that the thing so obtained was obtained under such circumstances as to constitute a crime under the first paragraph of this section;     receives the whole or any part of the property into which the thing so obtained has been converted or for which the same has been mortgaged or pledged or exchanged, is guilty of a crime within the meaning of the first paragraph of this section and may be indicted and punished accordingly”. See also the New Zealand decision of Lucinsky, [1935] N.R.L.R. 575 (C.A.), which interpreted Walkley more broadly than the manner suggested above.   33 See, e.g. the one-sentence disposition of the issue by Lord Hewart CJ, for the English Court of Criminal Appeal, in Klein, [1932] W.N. 99 (point not reported in 23 C.A.R. 185). In Barrow, 24 C.A.R. 141 (C.A.A. 1934), the English Court of Criminal Appeal quashed a conviction for receiving stolen goods where the appellent was in possession of a cheque which had been given by another person for the stolen goods. Avory J (for the court) said (at 143–144):   “[T]here was undoubtedly evidence that the appellant was in possession of a cheque which had been given in payment for the stolen goods. That fact of itself, although creating a suspicion that the appellant had had some dealing with the stolen goods, is not, in the opinion of the court, sufficient evidence that he was actually in possession of them, so as to justify a charge of receiving .... [U]pon the charge of receiving it was essential to prove that the appellent was in possession of the goods either manually or constructively, and we have come to the conclusion that there was in this case no evidence sufficient to justify the conviction.” There seems to be nothing in this case which indicates that section 46 was before the minds of the judges. Cf. C. Williams & Weinberg, Property Offences, 388 (1986). In Farnan, 67 I.L.T.R. 208 (Circuit Crim. Ct., 1933), Judge Davitt is reported as having held that, to substantiate the offence of receiving, it was necessary to show that the money received was the money actually stolen. Again, the absence of any reference to section 46 in the report suggests that it was overlooked.   34 [1953] 2 All E.R. 1028 (Q.B. Div.).   35 Id., at 1029.   36 See Smith & Hogan, Criminal Law, 454–456 (1st ed., 1965).   37 The identity of the owner need not be proven but, if the indictment specifies an owner, an amendment during the trial to “a person unknown” may so prejudice the defendant as not to be permissible: see Gregory, [1972] 2 All E.R. 861, [1972] Crim. L. Rev. 509 (C.A.).   38 [1919] 1 K.B. 564 (C.C.A.).   39 [1951] 2 All E.R. 645 (K.B. Div.), criticised by P.B., Note: Receiving Stolen Property – Goods Taken by Child Under Eight – Meaning of “Stolen”, 2 U.W. Austr. Ann. L. Rev. 163 (1951).   40 Section 50 of the Children and Young Persons Act 1933 provided that “no child under the age of eight years can be guilty of an offence”.   41 With whom Hilbery and Ormerod JJ concurred.   42 [1919] 1 K.B. 564.   43 [1951] 1 All E.R., at 646.

 

 

44 For criticism of this obiter statement, see Edwards, Note: Larceny by a Bailee and Larceny by Finding, 68 L.Q. Rev. 167 (1952), Williams, Note: Criminal Law – Larceny – Receiving, 15 Modern L. Rev. 222 (1952). In an unreported case three years before Walters v Lunt, a conviction for larceny was apparently successful: cf. A.J.C., Receiving Goods “Stolen” by a Child under Eight, 113 J.P. 496 (1949).   45 [1951] 2 All E.R., at 646–647.   46 [1975] 2 N.Z.L.R. 753 (Sup. Ct., Wild CJ); cf. Brown, Receiving Goods Stolen by Children or the Insane, [1979] N.Z.L.J. 506, P.B., op. cit., 2U.W. Austr. Ann. L.Rev. 163, at 165 (1951). Caldwell, op. cit., p. 234, cautions that “[i]t should be noted .... that [in Farrell] the defence offered no objections to the substitution of a count alleging theft of the cheque.”   47 [1975] 2 N.Z.L.R., at 754.   48 Dears. 436, 169 E.R. 794 (1855).   49 Id., at 441 and 796, respectively. See also Hancock v Baker, 14 Cox C.C. 119 (Ct. Crim. App., 1878).   50 L.R. 1 C.C.R. 15 (1866).   51 Supra.   52 L. R. 1 C.C.R., at 19.   53 Id.   54 In fact the policeman did more than look at the goods, but Mellor, J. presumably meant by his expression to refer to the policeman's examination of the goods.   55 L.R. 1 C.C.R., at 19.   56 Id. (This expression appears to refer to a case where the railway company carried the goods in ignorance of their changed status).   57 Id.   58 [1892] 2 QB 597 (Cr. Cas. Res., 1892).   59 Id., at 598.   60 Id., at 599.   61 Supra.   62 Supra.   63 [1892] 2 Q.B., at 599.   64 Supra.   65 Supra.   66 [1892] 2 Q.B., at 599–600. In Attorney-General's Reference (No. 1 of 1974), [1974] 1 Q.B. 744, at 751. Lord Widgery. C.J. (for the Court) described Pollock B's judgment as “brief and helpful”.   67 Supra.   68 [1892] 2 Q.B., at 600.   69 [1938] 2 All E.R. 662 (C.C.A.).   70 Id., at 664.   71 See Smith & Hogan, Criminal Law, 454–455 (1st ed., 1965), Williams & Weinberg, op. cit., 352–353, Anon., Receiving Property Stolen or Unlawfully Obtained, 108 J.P. 627 (1944), J.Y., Proof of Larceny in Receiving Cases, 101 Sol. J. 238 (1957).   72 Citing Petch, 14 Cox C.C. 116 (1878).   73 Smith & Hogan, Criminal Law, 454–455 (1st ed., 1965).   74 See Samuels, op. cit., at 15, Anon., Receiving, 18 J. Crim. L. 85 (1954).   75 Samuels, op. cit., at 15.   76 Kutas, 17 C.A.R. 179 (C.C.A., 1923).   77 Klein, 23 C.A.R. 185 (1932).   78 Archbold, op. cit., para. 2089, Samuels, op. cit., at 15, citing Frampton, 8 Cox 16 (1858): see, however, the strongly argued submission by Prevezer, Some Aspects of Receiving, 13 Current L. Problems 60, at 67 (1960), to the effect that Frampton turned on a specific provision of the Larceny Act 1827 (section 47) which had no direct equivalent in the 1916 Act, so that the principle of Bianchi, [1958] Crim. L. Rev. 813 would appear to exclude liability in this context.   79 New [1957] Crim. L. Rev. 685, at 685 (Central Crim. Ct.). New distinguished Schweller, 18 C.A.R. 52 (C.A.A., 1924).   80 See Samuels, op. cit., at 15, Misell, 19 C.A.R. 109 (1926) Bianchi, [1958] Crim. L. Rev. 813 (Huddersfield Q.S.).   81 Samuels, op. cit., at 15, citing Misell, supra, at 111 (per Lord Hewart CJ).

 

 

82 See Samuels, op. cit., at 13–14, Stone, Proof that Goods Are Stolen, 129 N.L.J. 1018 (1979) McCormick, Circumstancial Proof in Larceny and Receiving, 21 Austr. Police J. 46, 320 (1967).   83 Samuels, op. cit., at 13. Cf. Burton, Dears. 282, at 284,169 E.R. 728,at 729(Cr.Cas. Res.,perMaule J 1845), Conway, 60 I.L.T.R. 41 (C.C.A., 1952).   84 13 C.A.R. 118, at 120, 87 L.J.K.B. 1003, at 1004 (1918). See also Mills, K.B. Div., 11 November 1946, unreported, referred to in Cohen v March, [1951] 2 T.L.R. 402, at 403, where it was stated:   “The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time he received them.”   85 [1951] 2 T.L.R. 402, at 403–404 (K.B.Div.).   86 Supra.   87 [1953] 1 All E.R. 21 (C.C.A., 1952). See also Herron, [1963] Crim. L. Rev. 575 (C.C.A.), Hayes and King, 114 LJ. 274, [1964] Crim. L. Rev. 542 (C.C.A.). As to specification by the prosecution of ownership of the stolen property, cf. Gregory, [1972] 2 All E.R. 861, [1972] Crim. L. Rev. 509 (C.A. (Crim. Div.)).   88 Charles J observed (id., at 491):   “There he was a true prophet, because he did go away.”   90 13 C.A.R. 118, at 120, 87 L.J.K.B. 1003, at 1004 (1918).   91 See Overington, [1978] Crim. L. Rev. 692 (Ct. App.(Cr. Div.)), Hack,[1978]Crim.L. Rev.359(Inner London Crown Ct., Rubin, J.), McDonald, 70 C.A.R. 288, [1980] Crim. L. Rev. 242 (C.A. (Cr. Div.)), Korniak, 76 C.A.R. 145, [1983] Crim. L. Rev. 109 (C.A. (Cr. Div.), 1982).   92 See Marshall, [1977] Crim. L. Rev. 106 (Knightsbridge Crown Ct., Owen. Q.C., Dep. Circ. J.. 1976), Hulbert, 69 C.A.R. 243 (1979), Porter, [1976] Crim. L. Rev. 58 (Middlesex Crown Ct.. Judge Solomon, 1975); cf. McDonald, supra.   93 Haslam, 1 Leach 418, 168 E.R. 311 (1786) (prosecution brought under 22 Geo. III, c. 58).   94 The failure by the accused to give evidence will not constitute corroboration: Blank, [1972] Crim. L. Rev. 176.   95 Shaw, [1960] I.R. 168 (C.C.A.), Pratt, 4 F. & F. 315, 176 E.R. 580 (1865), Robinson, 4 F. & F. 43, 176 E.R. 459 (1864), Jennings. 7 Cr. App. R. 242 (1912), Reynolds, 20 Cr. App. R. 125 (1927), Davies v D.P.P., [1954] A.C. 378, Roma, [1956] Crim. L. Rev. 46 (C.C.A., 1955), Anslow, [1962] Crim. L. Rev. 100 (C.C.A., 1961): cf. Vernon, [1962] Crim. L. Rev. 35 (C.C.A., 1961), which held that, although receivers were accomplices of the thieves from whom they received goods, on a trial of the latter for larceny, the converse was not necessarily true: in some cases the judge could properly rule that there was no evidence that the witness was a “participant” in other cases, in which there was evidence on which a reasonable jury could find that the witness was a “participant”, the issue was one for the jury: for critical analysis of Vernon, see Commentary, id., at 36–37. In Phillips and Marks, [1962] Crim. L. Rev. 464, the English Court of Criminal Appeal held that, though it was desirable that a warning should be given in the case of a co-prisoner, charged with larceny, giving evidence, it was not obligatory on the trial judge to do so: for criticism, see Commentary, id., at 465–466, Phillips and Marks, as well as Prater, 44 Cr. App. R. 83, [1960] Crim. L. Rev. 189 and Heaps, [1961] Crim. L. Rev. 354 (C.C.A.), represent some advance on the former approach, laid down in Barnes and Richards, 27 Cr. App. R. 154 (1940).   96 Citing Caslin, 45 Cr. App. Rep. 47 (1961), Smith, 46 Cr. App. R. 277 (1962).   97 Samuels, op. cit., at 14.   98 4 F. & F. 315, at 316, 176 E.R 580, at 581 (1865).   99 [1965] A.C. 1001.   100 Cross on Evidence, 460 (6th ed., 1985).   101 Working Paper No. 9–1980.   102 Id., p. 80.   103 [1970] S.C.R. 608, at 626.   104 [1985] I.L.R.M. 18. at 24 (C.C.A., 1984).   105 [1986] I.L.R.M. 716, at 717–718 (C.C.A.) (emphasis added).   106 11 Cox C.C. 207.   107 Which corresponded with section 39 of the Larceny Act 1916.   108 11 Cox C.C., at 208 (1861).   109 [1933] I.R. 292, at 294–295 (C.C.A.).   110 The People (Attorney General) v Ruttledge, [1978] I.R. 376 (Sup. Ct., 1947), The State (Gilsenan) v Mc Morrow, [1978] I.R. 360 (Sup. Ct.).   111 [1978] I.R., at 372.   112 Id., at 380–381.   113 Id., at 376.

 

 

114 Nestor v Murphy, [1979] I.R. 326, at 329 (Sup. Ct., per Henchy, J. (for the Court)).   115 [1963] AC 557, at 577 (H.L. (Eng.)).   116 [1979] I.R., at 329.   117 See Smith & Hogan, Criminal Law, 459–460 (1st ed., 1965), Samuels, op. cit., at 25–26.   118 Smith & Hogan, op. cit., 459.   119 See, e.g. M'Athey, Le. & Ca. 250, 169 E.R. 1384 (1862) (receiving by husband from wife), Baines, 69 L.J.Q.B. 681 (Cr. Cas. Res., 1900) (receiving by wife from husband).   120 Dears & Bell 329, 169 E.R. 1027 (1857).   121 Id., at 331 and 1028, respectively.   122 Id., at 332 and 1028, respectively. See also Orris, 1 C.A.R. 199 (C.C.A., 1908), Pritchard,9 C.A.R. 210 (C.C.A., 1913). Cf. Peach, 108 Sol. J, 814, [1960] Crim. L.Rev. 134(C.C.A., 1959), where Lord Parker, C.J. is reported (108 Sol. J. at 814) as having said that “it seemed to the court that in the case of joint tenants of a room, knowledge by one that the goods in the room were stolen and the absence of any steps being taken by that joint tenant to get the other to remove the goods was capable of amounting to evidence that the man concerned had become a joint possessor and in joint control of the goods.” For criticism, see Commentary [1969] Crim. L. Rev., at 135.   123 Cf. Woodward. Le. & Ca. 122, 169 E.R. 1329 (1862), where the husband (in the view of Wilde, B.) adopted his wife's act.   124 [1981] I.R. 412 (Sup. Ct.).   125 Baines, 69 L.J.Q.B. 681 (Cr. Cas. Res., 1900), Brooks, Dears. 184, 169 E.R. 688 (1853); also Mawji. 22 E.A.L. R. 524, at 528 (1955); cf. Holley, [1963] 1 W.L.R. 199 (C.C.A., 1962) (accessory after the fact to housebreaking and larceny).   126 Section 9(3) provides as follows:   “No criminal proceedings concerning any property claimed by one spouse (in this subsection referred to as the claimant) shall, by virtue of subsection (1) or subsection (2), be taken by the claimant against the other spouse while they are living together, nor, while they are living apart, concerning any act done while living together by the other spouse, unless such property was wrongfully taken by the other spouse when leaving or deserting or about to leave or desert the claimant.” See further Smith & Hogan, Criminal Law, 390 (1st ed., 1965).   127 [1919] 1 K.B. 564 (C.C.A.).   128 [1944] I.R. 405, at 411–412 (Ct. Ct. App.).   129 [1981] I.R. 489 (Sup. Ct.).   130 Id., at 496.   131 [1944] I.R. 405, at 411–412.   132 [1981] I.R., at 497.   133 Id., at 498.   134 G. Williams, Textbook of Criminal Law, 87 (1st ed., 1978). See now, 2nd ed., 1983, 126.   135 See Samuels, op. cit., at 21–22.   136 43 C.A.R. 35 (Div. Ct., 1958).   137 Id., at 43.   138 Id.   139 Id., at 43–44.   140 Id., at 44.   141 Samuels, op. cit., at 22, Goodeson. Note, [1959] Camb. L.J. 14, Smith, The Guilty Mind in Criminal Law, 76 L.Q. Rev. 78, at 94–96 (1960).   142 Samuels, op. cit., at 22. See also Smith, op. cit., at 95:   “D receives goods from X who tells a great story of how he obtained them by a daring burglary. D believes the story. In fact, X obtained them simply by telling lies in circumstances amount to false pretences. D now has a real belief that he is receiving goods obtained by felony; in fact, he is receiving goods obtained by a misdemeanour, and the only way to deal with him is to change the law, and the sooner the better.”   143 Samuels, op. cit., at 22. Cf. Commentary to Nieser. [1959] Crim. L. Rev. 129, at 130, wherein it is argued that applicatior of a test of recklessness or wilful blindness could obviate this difficulty. In view of Hanlon v Fleming. [1981] I.R. 489 (Sup. Ct.), this option may not be available under Irish law at present.   144 6 C.A.R. 218, at 220 (C.C.A., 1911). See also Tennet. [1939] 1 All E.R. 86 (C.C.A., 1938).   145 [1958] I.R. 183 (C.C.A., 1954). See also M'Athey, Le & Ca. 250, 169 E.R. 1384 (1862).   146 [1939] 1 All E.R. 86.   147 [1958] I.R., at 184.

 

 

148 34 C.A.R. 55 (C.C.A., 1949).   149 Dears. 149, 169 E.R. 674 (1853).   150 [1949] 1 E.R. 398.   151 Id., at 58–59. Cf. Peach 103 Sol. J. 814, [1960] Crim. L. Rev. 135 (C.C.A., 1959), Dickson and Gray, [1955] Crim. L. Rev. 435 (C.C.A.).   152 [1967] S.A.S.R. 1 (Sup. Ct. (In Banco), 1966).   153 Id., at 5.   154 Cf. Infra, paras. 50–53.   155 Subject to the power of the Court to rule such evidence inadmissible.   156 See Samuels, op. cit., at 20–21, Anon., Possession of Recently Stolen Property, 86 Ir. L.T. & Sol. J. 235, 241 (1952).   157 Criminal Law, The General Part, 879 (2nd ed., 1961).   158 Id., 877.   159 G Williams, Textbook of Criminal Law, 49 (2nd ed., 1983).   160 Oglesby, [1966] I.R. 162 (C.C.A.). Infra, para. 46.   161 11 Cr. App. R. 45, at 49 (C.C.A., 1914). See Fraser, Stolen Property: The Defence that 'Might Reasonably be True', 1 U.B.C.L. Rev. 553 (1963).   162 [1933] I.R. 292 (C.C.A.).   163 Id., at 295–296.   164 [1944] I.R. 405 (C.C.A.).   165 Citing the statement on the onus of proof in Woolmington, [1935] AC 462, at 481.   166 Citing Badash, 13 C.A.R. 17.   167 [1944] I.R., at 411. See also Shaw, [1960] I.R. 168 (C.C.A.) where Maguire CJ, for the Court, said (at 173):   “In the absence of any explanation whatever by the accused as to how he came to possess the [stolen goods] the jury were, if they accepted the evidence, entitled, in our opinion, to treat it as corroboration of [the thief's] evidence.” See further O'Connor, Corroboration and the Testimony of Accomplices in the Irish Law of Evidence, 4 D.U.L.J. 12, at 14–19 (1982).   168 [1961] I.R. 304, at 311 (High Ct, Davitt, P., 1959).   169 Citing Badash, Supra, Berber and Levey, [1944] I.R. 405, at 411.   170 Supra, Cf. Duncan, Drug Offences and Strict Liability, Part IV, 104 Ir. L.T. & Sol. J. 187, at 188 (1970).   171 Supra.   172 [1966] I.R. 162 (C.C.A.).   173 Supra.   174 [1965] I.R. 366.   175 [1966] I.R., at 165.   176 Supra.   177 Supra.   178 Kenny, J. here cited the statement of Lord Goddard C J in Aves, 34 C.A.R. 159, at 160 (C.C.A., 1950), to the effect that:   “[w]here the only evidence is that an accused person is in possession of property recently stolen, a jury may infer guilty knowledge (a) if he offers no explanation to account for his possession, or, (b) if the jury are satisified that the explanation he does offer is untrue.” See also Smythe, 72 C.A.R. 8 (1980), Nq Mou-wo. Hong Kong Ct. App., 6 November 1984 (1984–279).   179 [1933] I.R. 292.   180 [1958] 3 All E.R. 662.   181 [1966] I.R., at 167–168.   182 [1958] 3 All E.R., at 669.   183 [1983] 2 All E.R. 1089, at 1092–1093.   184 Oglesby, [1966] I.R., at 167, (C.C.A., per Kenny J for the Court).   185 Citing Marcus, 17 C.A.R. 191 (1923).   186 Citing Cooper, 3 C. & K. 318, 175 E.R. 570 (1852) and Harris, 8 Cox 333 (1860).   187 Citing Adams, 3 C. & P. 600, 172 E.R. 563 (1829).

 

 

188 Citing Partridge, 7 C. & P. 551, 173 E.R. 243 (1836).   189 Citing McMahon, 13 Cox C.C. 275 (1875).   190 Samuels, op. cit., at 20–21. See also Rowther, 25 N.L.R. 385 (Sup. Ct., 1924), Siriwardene v Dionis, 27 N.L.R. 358 (Jaye Wardene A J 1925).   191 [1944] I.R. 405 (Ct. Cr. App.).   192 Id., at 411 (per Black J.).   193 33 C.A.R. 100 (1949).   194 Id., at 101.   195 25 N.L.R. 365, at 391–392 (Sup. Ct., 1924).   196 86 L.J.K.B. 810 (1917).   197 Cf. the Australian decisions holding that, if the jury come to the conclusion that the defendant's explanation might reasonably be true, even though they do not believe it, they are not entitled to use the doctrine of recent possession against the defendant: Petrie, 47 S.R. (N.S.W.) 20 (C.C.A., 1946), Jorgic, 80 W.N. (N.S.W.) 761, [1963] N.S.W.R. 66 (C.C.A., 1962), McKenna, [19645] N.S.W.R. 433 (C.C.A. 1964).   198 C.C.A. No. 3 of 1967, 11 May 1967, Frewen, vol. 1, p. 319, at pp. 324–325.   199 Id., p. 325.   200 C.C.A., 15 December 1986 (99–101/86), at p. 3 of judgment.   201 4 C.L.R. 126, at 137 (H. Ct. Aust., 1906).   202 See Samuels, op. cit., at 22–24, Anon., Guilty Knowledge, 82 J.P. 318 (1918).   203 This word is important. “To make such evidence admissible the receiver must be charged with knowing the property to have been stolen and not obtained in any other way even in circumstances which amount to felony”: Nieser, [1958] 3 All E.R. 662, at 668 (C.C.A., per Diplock J (for the court), 1958).   204 Cf. the liberal interpretation of the words “found in his possession” in Rowland, [1910] 1 K.B. (C.C.A., 1909) so as to embrace former possession by the accused. The words “or had been” remove this difficulty.   205 12 C.A.R. 1, at 4 (C.C.A., 1916).   206 In Smith, [1918] 2 K.B. 415, at 419 (C.C.A.), Darling J, for the Court, said:   “It may be that the better course to adopt would be, before giving evidence that the goods were found in the prisoner's possession, to give evidence that they were stolen, but it would be difficult to give evidence that they were stolen without producing them in Court, and the natural inference from their production would be that they were in some way connected with the prisoner...It is a matter for the discretion of the judge at the trial to say which is the more convenient course, and we cannot say that one course is right and the other wrong. If the prosecution, having given evidence that certain articles, not the subject of the indictment, were found in the prisoner's possession, should fail, with regard to some of them, to prove that they were stolen, the judge can point out to the jury this defect in the evidence, and the failure of the prosecution to prove that all the goods were stolen would tell in the prisoner's favour.”   207 Girod, 70 J.P. 514, at 516 (C.C.R., per A T Lawrence J, 1906).   208 Id.   209 [1918] 2 K.B. 415, at 419 (C.C.A., per Darling J, for the Court).   210 14 Cox 3 (Oxford Circuit, Lopes, J., 1877).   211 Id., at 4.   212 3 C.A.R. 1 (C.C.A., 1909). See Samuels, op. cit., at 23.   213 As a general rule, subject to certain exceptions, the prosecution may not adduce evidence of previous convictions: see Anon., Guilty Knowledge, 82 J.P. 318, at 319 (1918); cf. Horzepa, Note: Receiving Stolen Goods – Exclusion of Evidence of Previous Crimes, 36 Conn. B.J. 639 (1962).   214 [1953] 1 Q.B. 489, at 493 (C.C.A.).   215 Id.   216 Id.   217 [1965] 3 All E.R. 710 (Roskill J.).   218 Id., at 711.   219 Id., at 712.   220 Id., at 713. See also Turner, [1957] Crim. L. Rev. 474, Auton, [1958] Crim. L. Rev. 549.   221 [1967] 1 Q.B. 107 (C.C.A., 1966).   222 Id., at 114 (per Havers, J., for the Court).

 

 

223 Samuels, op. cit., at 24. See Davis, 1 L.R.C.C.R. 272 (1870) and Harwood, 11 Cox 388 (1870).   224 [1981] I.R. 233 (Sup. Ct., 1980, aff'g High Ct., McWilliam J, 1978).   225 Id., at 242.   226 Id., at 241–242.   227 See Eddy, Stealing or Receiving? The Court and Alternative Charges, 118 J.P. & Local Govt. Rev. 635 (1954), J.Y., Receiving. 103 Sol. J. 846 (1959).   228 O'Leary v Cunningham, Sup. Ct., 28 July 1980 (145A–1979), per Griffin J, at p. 3 of his judgment in the same case, Kenny J, at p. 4 of his judgment, observed that it was “trite law that when an accused is charged with receiving, the prosecutor must prove that the goods or money were stolen by some person who was not the accused”.   229 [1955] I.R. 324, at 341 (Sup. Ct., 1953). Cf. Byrne, C.C.A., 10 March 1966 (C.C.A., No. 1 of 1966), Frewen, vol. 1, p. 303, Finegan, [1933] I.R. 292 (C.C.A.).   230 Supra.   231 P. 6 of Kenny J's judgment.   232 Id.   233 Id., pp. 6–7.   234 Id., p. 7.   235 E.g. under section 44 of the Larceny Act 1961. Under s. 44(1), an accused charged with robbery may be convicted of an assault with intent to rob. Under s. 44(2), an accused charged with embezzlement may be convicted of stealing. S. 44(3) provides that an accused charged with stealing may be convicted of obtaining by false pretences and acquitted of stealing. Interestingly, s. 44(4) provides that a person indicted for obtaining by false pretenses is not entitled to be acquitted on that count if it is proved he stole the property. The reason for the distinction in approach between the two subsections may be that in general larceny, a felony, is considered to be a more serious offence than obtaining by false pretences, which is a misdemeanour. S. 44(4) is referred to infra, para. 136. Under section 53(4) of the Road Traffic Act 1961 an accused charged with dangerous driving may be convicted of driving without due care and attention.   236 Although Kenny J considered that the effect of what the District Justice did “was to acquit the accused”: p. 15 of Kenny J's judgment.   237 Id., p. 16.   238 [1951] 1 All E.R. 1006, at 1007 (C.C.A.). See also Christ, 35 C.A.R. 76, at 79(C.C.A., per Devlin J, for the Court, 1951).   239 Citing Coggins, 12 Cox C.C. 517, at 521 (C.C.A. per Blackburn J, 1873).   240 Citing Hughes, 8 Cox C.C. 278 (1860), Goodspeed, 6 C.A.R. 133, 27 T.L.R. 255 (C.C.A., 1911).   241 Samuels, op. cit., at 26.   242 [1947] K.B. 849 (Div. Ct.), criticised by J W C T[urner], Note, 10 Camb. L.J. 112 (1948).   243 Id., at 852–853.   244 Samuels, op. cit., at 28.   245 Id., at 29.   246 McDonough, 106 Sol. J. 961, [1963] Crim. L. Rev. 203 (C.C.A., 1962).   247 Cf. Commentary [1963] Crim. L. Rev. 203, at 204.   248 Cf. id.   249 Cf. supra, paras. 8–10.   250 Cf. supra, paras. 11–14.   251 Cf. supra, paras. 40–42.   252 A well-advised and shrewd receiver (and many receivers are such) could well seek to trap those investigating the crime by seeming to be likely to refuse to give an account of the goods' provenance. Thus, the section would appear capable of being more safely invoked against the more “amateur” receiver.   253 Cf. the Criminal Justice Act 1984. section 13(1).   254 [1975] AC 476 (H. L. (Eng.), 1973).   255 Id., at 490.   256 Smith & Hogan, Criminal Law, 466 (1st ed., 1965).   257 Id.

 

 

CHAPTER 3: COMPARATIVE ASPECTS

67.

In this chapter we examine briefly the law on receiving in some other jurisdictions, concentrating on those aspects of the subject which are of greatest relevance to the policy issues which must be resolved when proposing changes in the law here.

THE UNITED KINGDOM

(a) England and Wales, and Northern Ireland

68.

For many years the law of receiving stolen property was the same in England and Wales and Northern Ireland as in our law. Section 33 of the Larceny Act 1916 governed the position.

In 1966 the Criminal Law Revision Committee published its Eighth Report, Theft and related Offences.¹ The Committee made wide-ranging recommendations on the entire subject. It proposed a new offence of theft to replace the offences of larceny, embezzlement and fraudulent conversion. This new offence dispensed with the requirement of asportation, and concentrated on dishonest appropriation of another's property.

The Committee recommended some significant changes in relation to the offence of receiving stolen property. First it recommended² that the actus reus be extended beyond cases where a person dishonestly receives stolen goods to those where he dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or where he arranges to do so. In view of this significant extension, the Committee considered that the word “handling” described the offence better than the word “receiving”.

The Committee recommended³ the introduction of a rather complicated new definition of “property”, to ensure that some reasonable limits be put on the very broad definition contained in section 46(1) of the Larceny Act 1916, so far as concerns the proceeds of stolen goods.

 

 

On the question of mens rea, the Committee recommended⁴ that liability should be attached where the defendant knew or believed that the goods were stolen. It said:

69.

The Theft Act 1968 gave effect to the Committee's recommendations with regard to receiving (or “handling”, as the offence became known). Section 22 provides as follows:

In Northern Ireland, the Theft Act (Northern Ireland) 1969 introduced the same changes in the law in Northern Ireland.

70.

In England, in applying the provisions of section 22, the Courts have run into some difficulties in relation to the wide permutations of conduct extending beyond the old notion of receiving.⁶ In Bloxham⁷ Lord Bridge said that there were two offences under section 22: the first that of receiving, the second a new offence which could be committed in any of the various ways specified in the provision. Dr Glanville Williams has observed⁸ that this statement involves a slight misunderstanding of a rule developed in the Court of Appeal. He added:

 

 

71.

The mental element has also given rise to some problems. Efforts by some trial judges to give some explanation of the phrase “knowing or believing” have caused more harm than good. The boundaries between a subjective and an objective approach have proved difficult to maintain, especially in cases where the facts should have given rise to suspicion as to the goods' provenance or where the accused was considered to have been “wilfully blind”.

In the past three years the Court of Appeal has been forced to spell out the position in clear terms.

In Moys,¹⁰ the trial judge told the jury that strong suspicion coupled with a deliberate shutting of the eyes was not merely an alternative but was equivalent to belief. The Court of Appeal held that this was not correct. Lord Lane CJ (for the Court) referred to a paragraph in Archbold¹¹ which, although “perfectly accurate if one takes the trouble of reading it through from start to finish and perhaps examine what it is that Jones LJ says in Griffiths¹²”,¹³ was considered a source of possible trouble if a trial judge had not immediate access to the law reports it mentioned. Lord Lane CJ said:

In Hall,¹⁵ Boreham J, speaking for the Court of Appeal, said:

 

 

In the Court of Appeal case of Harris,¹⁶ in 1986, Lawton LJ said:

Lawton LJ referred to the statement of Lord Lane CJ in Moys¹⁷ and said:

Turning to Hall,¹⁹ Lawton LJ said:

72.

Section 32(1) of the Salmon Act 1986 introduced a new handling offence for salmon. A person is guilty of an offence:

Sub-section 32(3) provides that:

It was necessary to create a special handling offence for salmon because of the provisions of Section 4(3) of the Theft Act (which provide that only tamed or captive wild creatures can be stolen) and because it is impossible to distinguish a lawfully taken salmon from

one unlawfully captured. While this explains why Parliament dispensed with the necessity of proving that the salmon the subject matter of the offence was unlawfully obtained, it does not of itself account for the broadening of the mens rea to reasonable suspicion.²¹

(b) Scotland²²

74.

Unlike the position in England, where the handling of stolen goods is dealt with by statute in the Theft Act 1968, in Scotland the receipt of stolen goods remains a common law crime. Commonly. termed “reset”, the crime consists of “the retention of goods obtained by theft, robbery, fraud or embezzlement, with the intention of keeping them from their true owner”.²³ Reset was originally limited to receiving property obtained from theft, but is now extended to cover receiving property from these other crimes as well.²⁴

Possession of the property is required to commit the crime, although “possession” is not used in any technical sense, and is generally taken to mean having the property in one's keeping or control.²⁵ Distinctions may be made in English law between receiving and handling stolen property, but in Scotland “[i]t is the possessing and not the receiving that is important”.²⁶ It does not matter who the goods are received from; if a person keeps stolen property after learning that it is stolen, he is guilty of reset on acquiring the guilty knowledge irrespective of whether he acquired the goods from the thief.

It is not clear what the common law position would be if the theft took place in Ireland and the reset in Scotland. So far as thefts in England, Wales and Northern Ireland are concerned, the matter is regulated by section 7(2) of the Criminal Procedure (Scotland) Act 1975, which provides that:

The mental element required to commit the crime of reset is knowledge that the goods were stolen, or that they were the proceeds of one of the other crimes. An intention to conceal and withhold the goods from the owner is also required.

75.

There are two unusual aspects of the crime of reset which are of interest for comparative purposes. They both date back to the time, centuries ago, when the basic principles of the crime were formed. The first is that:

The reason for this exception was that the wife was considered to be bound to cherish and protect her husband, and, so far from informing against him, to conceal his delinquencies, and protect him from punishment. In recent years, the courts have attempted to restrict this exception as far as possible, and it has been held that it would not apply to a husband, and that, in the case of a wife, she must show:

 

 

A second unusual aspect of the crime is that the detention of a pupil child (a boy under 14 and a girl under 12) is treated as reset. The reason for this is that, historically, pupil children had no legal personality and, for the purposes of theft, were treated as the property of their parents. Since a pupil child could be stolen (the offence being known as plagium), and since whatever can be stolen can be resetted, it followed that a person who detained or concealed a child who had been stolen would be guilty of reset.

The Scottish Law Commission published a Report [No. 102] on Child Abduction on 12 February 1987. One of the main recommendations contained in the Report is that plagium should be abolished and that a new statutory offence of child abduction be created. If this proposal is implemented, the detention of children will no longer be regarded as reset, since children will no longer be capable of being stolen.

CANADA

76.

Section 312(1) of the Criminal Code provides as follows:

The Law Reform Commission of Canada in their Report on Re-codifying Criminal Law, vol. 1, published in March 1987, have proposed that there should be an offence of Criminal Dealing, to the effect that:

In a supporting Comment, the Commission observe that:

 

 

AUSTRALIA³¹

77.

Australia offers some useful points of comparison, with a wide variety of strategies having been adopted over the years in the various states.

(a) Victoria³²

78.

The law relating to receiving stolen property in Victoria is contained in sections 88 to 90 of the Crimes Act 1958, which (in spite of the year of its title) is modelled on Britain's Theft Act 1968. Thus the offence is one of “handling” rather than “receiving”.

It also appears that (as our Court of Criminal Appeal made clear in Oglesby):

It appears³⁵ that the police in Victoria more commonly charge suspects with unlawful possession of property reasonably suspected of being stolen or unlawfully obtained under section 26 of the Summary Offences Act 1966.

(b) Queensland

79.

Section 433 of the Criminal Code provides (in part) that:

It goes on to provide that to prove the receiving of anything it is sufficient to show that the accused has, either alone or jointly with some other person, had the thing in his possession or has aided in concealing or disposing of it. Thus, the concept of receiving is broader than under our law but not as broad as under the law in England or Victoria.

It is an offence to have in one's possession or convey anything suspected of being stolen or unlawfully obtained.³⁷ Williams & Weinberg state:

(c) Western Australia

80.

Western Australia's Criminal Code in essence is the same as Queensland's, which it adopted. Section 414 is virtually identical with

 

 

Queensland's section 433, save that it uses the word “property” in preference to “thing.” As in Queensland, the jury may bring in a verdict of “guilty of stealing or receiving but we are unable to say which”.³⁸ In these circumstances, the judge must enter a conviction for whichever offence carries the lesser punishment.³⁹

81.

In 1983 Mr M J Murray QC, Crown Counsel, submitted to the Government of Western Australia a Report, entitled The Criminal Code – A General Review. As regards the actus reus of receiving, Mr Murray considered that the changes made in the legislation in Britain and Victoria offered “very little improvement”⁴⁰ on the offence of receiving as drafted in section 414. It is worth noting in this context that the section provides that, for the purpose of proving the receiving of anything,

This extension of the notion of receiving contains the substance of the change to the actus reus brought about by the legislation in England and Victoria.

Mr Murray recommended⁴¹ the inclusion in section 414 of an express requirement that the accused receive the property dishonestly. The absence of this requirement, he said, had led to difficulties, resulting in one (unreported) case in the Judge's having to construe the section as if it required the dishonest receipt of the goods. Mr Murray said: “That I think in the end was not a correct ruling in law, but it was clearly one designed to produce a just result”.⁴²

Mr Murray also recommended⁴³ the inclusion of the words “or believing” after “knowing” in section 414. He said:

The Government of Western Australia is gradually implementing particular provisions of the Murray Report, though as yet no move has been made to alter the sections of the Code dealing with receiving.⁴⁵

82.

It seems that in practice the police frequently prosecute for the summary offence of being in possession of property reasonably suspected of being stolen. Section 69 of the Police Act 1892 provides as follows:

 

 

The major advantage of this section, from the police point of view, is that it places on the defendant the burden of giving a satisfactory explanation of how he came by the property. It is, of course, practically identical to s. 13 of our Criminal Justice Act 1951 which, as we have seen, has been regarded as inoperable for many years.

The Law Reform Commission of Western Australia currently has a reference to review the offence in the Police Act, though as yet the Commission has formed no concluded view on section 39.⁴⁶

(d) The Australian Capital Territory

83.

Section 113 of the Crimes (Amendment) Ordinance 1985 has changed the law in the direction of the legislation adopted in England and Victoria, but, in its express terms, falls short of the full scope of the actus reus favoured in those jurisdictions.⁴⁷ Subsection (1) of section 113 renders it an offence for a person to receive stolen property or dishonestly undertake its reception, retention, removal, disposal or realisation by another person. But this form of drafting does not expressly incorporate such forms of handling as assisting in the retention, removal, disposal or realisation of stolen property, or arranging to do so. Whether the practical effect of this restriction would be great is doubtful, however. The words “undertakes its reception”, etc. would extend to many acts with preparatory or augmentary dimensions.

(e) New South Wales

84.

Section 188 of the Crimes Act 1900 defines the actus reus fairly broadly so as to include, not only receiving but also the disposal or attempted disposal of stolen property. This change was made in 1974,⁴⁸ and goes part of the way down the road of section 22 of the English Theft Act 1968.

Section 420 of the 1900 Act provides, in part, that:

Section 189A(1) of the Act provides as follows:

The words “and whether or not he took part in the stealing of the property” were added in 1974, to resolve judicial uncertainties.⁵⁰

Section 189B, also added in 1974, provides that, where the evidence discloses that property was stolen in the course of transmission into or out of New South Wales, the accused is liable to conviction for receiving, or disposing of the property, without proof that the stealing took place in New South Wales.⁵¹

85.

Section 527C⁵² of the 1900 Act provides for a summary offence of unlawful possession, punishable by up to six months' imprisonment. Williams & Weinberg state:

 

 

(f) South Australia

86.

The law relating to receiving is contained in sections 196 to 200 of the Criminal Law Consolidation Act. These provisions derive in the main from the English Act of 1861. However section 199 provides that, where the thief is punishable summarily, so is the receiver; the maximum sentence in these circumstances is one year's imprisonment. Section 200 provides that, on the hearing of a charge of receiving, there may be proved against the accused:

If the Crown want to prove a prior conviction under (b), 7 days' written notice prior to the trial must be given to the accused or his solicitor.

Legislation in 1986 (Act 90 of 1986) changed the definition of “property” so that it means:

 

 

87.

A summary offence should also be noted. Section 41(1) of the Summary Offences Act 1953 provides as follows:

Section 41(2) provides that it is a defence that the defendant “obtained possession of the property honestly”. Williams & Weinberg state:

(g) Tasmania

88.

The law relating to receiving stolen property is contained in sections 258 and 259 of the Criminal Code. Section 258(1) renders it an offence for any person, without lawful excuse, to receive or have in his possession any stolen property, knowing it to be stolen property. Section 258(2), which defines “stolen property”, provides that the term:

Thus, it appears that, where a third party, such as a police officer, takes possession of the goods, this would not come within the ambit of the subsection.⁶¹

Section 258(2) permits the prosecution, in support of the averment of guilty knowledge, to give evidence of:

The facts mentioned in paragraph (b) are not admissible unless the accused has been given a week's notice in writing of the intention to prove this fact and evidence has previously been given that the stolen property in respect of which the accused is charged was found or had been in his possession.⁶³

Section 259 deals with taking rewards for stolen property. It provides as follows:

 

 

89.

The only note of a Tasmanian Supreme Court case dealing with these sections of the Criminal Code is Regina v Quillerat.⁶⁴ It reads as follows:

90.

Section 39 of the Police Offences Act 1953 makes it an offence to be found in possession of any property reasonably supposed to have been stolen or unlawfully obtained without being able to give a satisfactory account of such possession. Williams & Weinberg state:

91.

The Second-Hand Dealers Act 1905 imposes on second-hand dealers wide-ranging duties of recording information as to the details of purchases. The Law Reform Commission of Tasmania in its Report No. 25, published in 1979,⁶⁸ recommended that, in the light of changing social and economic patterns of behaviour, new legislation should aim to cut down on the keeping of records which are not essential to discourage dealing in, and the tracing of, stolen property of reasonably substantial intrinsic value. The Commission proposed that several categories of dealers⁶⁹ should be exempt either because they

 

 

fell under separate legislation, or were subject to their own regulatory procedure⁷⁰ or because it was considered inappropriate to bring them within the scope of the new Act.⁷¹ This report is still being considered by the Tasmanian Government.⁷²

(h) The Northern Territory

92.

Section 229(1) of the Criminal Code provides in part that any person who receives anything that has been obtained by means of a crime knowing or believing it to have been so obtained is guilty of a crime.⁷³ Subsection (5) provides that:

The drafting of this provision has been criticised on the basis that it does not exclude the possibility of a person jointly responsible for the theft of an item being convicted of receiving it simply because he has aided the co-offender in concealing or disposing of it.⁷⁴

NEW ZEALAND⁷⁵

93.

The law relating to receiving is contained in sections 258 to 262 of the Crimes Act 1961. Section 158 (as amended by section 2 of the Crimes Amendment Act 1985) provides as follows:

94.

Section 259 deals with the question of receiving the property of a spouse. It provides as follows:

Section 260 specifies the time at which receiving is complete:

Section 261 deals with the position where the property has been restored to the owner. It provides as follows:

Finally, section 262 deals with the related question of taking a reward for recovery of stolen goods. It provides that everyone is liable to imprisonment for a term not exceeding three years:

UNITED STATES⁸⁰

95.

The law in the United States in relation to receiving stolen property has many close similarities with Irish law. Understandably, in view of the fact that every State has its own rules of criminal law, there is a degree of divergence on several aspects. Moreover, the United States Constitution and the Constitutions of some individual States have had an influence on evidential matters, especially in relation to presumptions. Also the Model Penal Code offers a most thorough and coherent model for statutory reform which demands close attention.

 

 

It is useful to concentrate on four elements:

(a) The Actus Reus

96.

The classic notion of “receiving”, as understood in our law, comes within the scope of the actus reus of the offence in all jurisdictions in the United States. But a number of states extend liability to “retaining”,⁸¹“concealing”,⁸² or “aiding in concealing”⁸³ the property.

A few statutes, such as section 496(1) of California's Penal Code, impose liability for withholding the property from the owner. Perkins & Boyce comment:

The Model Penal Code⁸⁵, in section 223.6 (1), provides that a person is guilty of theft⁸⁶ if he “purposely receives, retains, or disposes” of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with purpose to restore it to the owner.

“Receiving” is defined as “acquiring possession, control or title, or lending on the security of property”. The Comment on the section states:

(b) The Necessary Mens Rea

97.

Under the Model Penal Code formulation, it suffices to prove that the accused believed the goods had probably been stolen. The Comment on the section states:

 

 

The comment cites Judge Learned Hand's statement in United States v Werner,⁸⁷ that “the receivers of stolen goods almost never 'know' that they have been stolen, in the sense that they could testify to. it in a court room . . . Nor are we to suppose that the thieves will ordinarily admit their theft to the receivers: that would much impair their bargaining power”.

The Comment also states:

(c) Attempted Receiving

98.

Much analysis has been given by courts and commentators in the United States to the question of attempted receiving.⁸⁸

The most famous, and widely-criticised, case, holding that a charge of attempted receiving will not lie unless the goods are in fact stolen is People v Jaffe⁸⁹ in which the New York court considered that “if all which an accused person intends to do would, if done, constitute no crime, it cannot be a crime to do with the same purpose a part of the thing intended”.

The trend of more recent decisions is towards imposing liability in such circumstances.⁹⁰

(d) Evidentiary Aspects⁹¹

99.

Statutes in a number of States used to provide that possession of recently stolen goods gave rise to a presumption that the defendant knew that the goods had been stolen.

100.

The constituional implications are extremely complicated,⁹² and what follows is merely a summary of the position.

First, it is clear that the prosecution must prove beyond reasonable doubt every fact necessary to constitute the crime charged,⁹³ However, where the defendant seeks to establish an “affirmative defence”, such

 

 

as that of insanity,⁹⁴ the legislation of a State may place the burden of proof on the defendant.⁹⁵

In Tot v United States⁹⁶ it was stated that:

In Leary v United States⁹⁷ it was held that a criminal statutory presumption had to be regarded as “irrational” or “arbitrary”, and hence unconstitutional, unless it could “at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend”. Since the presumption with which it had to deal did not satisfy this test, the Court left open the question “whether a criminal presumption which passes muster when so judged must also satisfy the criminal 'reasonable doubt' standard if proof of the crime charged or an essential element thereof depends upon its use”.⁹⁸

In County Court of Ulster County, New York v Allen,⁹⁹ the Court distinguished between mandatory and permissive presumptions. The former type of presumption “tells the trier that he or they must find the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the connection between the two facts”.¹⁰⁰ In this case, the prosecution “may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt”.¹⁰¹ A permissive presumption, on the other hand, is one “which allows – but does not require – the trier of fact to infer the[presumed] fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant”.¹⁰² The Supreme Court in the Ulster County case was satisfied that:

101.

On the specific question of presumptions in relation to receiving stolen property the cases are far from unanimous.¹⁰⁴ In the United States Supreme Court decision of Barnes v United States,¹⁰⁵ a permissive inference of guilt from unexplained possession of recently¹⁰⁶ stolen property was upheld. Justice Powell, delivering the opinion of the Court, said:

 

 

In the light of the later jurisprudence on presumptions, notably the Ulster County case, the burden on the prosecution would not be so heavy.

CYPRUS

102.

Section 306 of the Criminal Code provides as follows:

Section 307 used formerly to contain a provision dealing with receiving property fraudulently obtained, but this was repealed by section 17 of the Criminal Code (Amendment) Law 1952.

103.

Section 309 deals with unlawful possession of property. It provides:

HONG KONG

104.

Hong Kong's Theft Ordinance,¹⁰⁹ section 24, follows identically England's Theft Act 1968, section 22.

INDIA¹¹⁰

105.

Section 410 of the Indian Penal Code provides a definition of stolen property as follows:

 

 

Section 411 deals with dishonestly receiving or retaining stolen property. It provides as follows:

Section 413 deals with habitually dealing in stolen property:

The greatly enhanced penalty for habitually dealing is worth noting.

Section 414 deals with assisting in concealing (etc.) stolen property:

 

 

FOOTNOTES

1 Cmnd. 2977 (1966).   2 Paras 128ff. of the Report.   3 Paras. 136–138 of the Report.   4 Para. 134 of the Report.   5 Id.   6 Cf. infra, para. 108.   7 [1983] 1 A.C. 109, at 113.   8 G Williams, Textbook of Criminal Law, 859–860 (2nd ed., 1983).   9 Id., 860, fn. 5.   10 79 C.A.R. 72 (C.A., 1984).   11 41st ed., para. 18–165.   12 60 C.A.R. 14, at 18 (1974).   13 79 C.A.R., at 76.   14 Id.   15 81 C.A.R. 260, at 264 (C.A., 1985).   16 84 C.A.R. 75, at 78 (C.A., 1986).   17 72 C.A.R. 72, at 75 (1984).   18 84 C.A.R., at 79.   19 81 C.A.R. 260, at 264 (1985).   20 84 C.A.R. at 79.   21 See Howarth, Handling Stolen Goods and Handling Salmon, [1987] Crim. L. Rev. 460.   22 See Gordon, The Criminal Law of Scotland, ch. 20 (2nd ed., 1978).   23 Id., 683.   24 Id.   25 Id.   26 Id., 684.   27 See also section 292 (2) of the Act, and cf. Gordon, op. cit., 684–685.   28 Macdonald's Criminal Law of Scotland, 68 (5th ed.).   29 Smith v Watson, 1982 S.L.T. 359.   30 Section 18(6) of the draft Code.   31 See C R Williams & M S Weinberg, Property Offences, ch. 8 (1986). P Brett & P Waller, Criminal Law: Cases and Text, 395–398 (3rd ed., 1971). Bourke's Criminal Law 370–374 (2nd ed., by D Sonenberg & C New, 1969). R Carter, Criminal Law of Queensland, ch. 41 (6th ed., 1982). Watson & Purnell, Criminal Law in New South Wales, vol. 1A, paras. 696–718. E Edwards, R Haves & R O'Regan, Cases on the Criminal Code, 440–448 (1969). C Howard, Criminal Law, 228–234, 248–249 (4th ed., 1982).   32 See C R Williams & M S Weinberg, Property Offences, 374–395 (1986).   33 Citing the Victoria decisions, Beljajev, [1984] V.R. 657 and Cottrell, [1983] V.R. 143.   34 Williams & Weinberg, op. cit., 387–388.   35 Letter from Mr Desmond Lane, Legal Officer, Policy and Research, Law Department, Victoria, 13 February 1987.   36 Cf. Williams & Weinberg, op. cit., 368–369.   37 Id., 371, citing the Vagrants, Gaming and Other Offences Act 1931, sections 25, 47(2) and 52, and R v Justices at Cloncurry; Ex parte Ryan, [1978] Qd. R. 213.   38 Section 586(4).   39 Williams & Weinberg, op. cit., 370.   40 P. 272 of the Report.   41 Id., p. 273.   42 Id., p. 272.   43 Id., p. 273.   44 Id.   45 Letter for Dr P R Handford, Executive Officer and Director of Research, Law Reform Commission of Western Australia, 19 February 1987.   46 Id.   47 See Williams & Weinberg, op. cit., 371.

 

 

48 Id., 348, fn. 2, 351–352.   49 Cf. id., 360.   50 Cf. id 365–366, citing Foster, 118 C.L.R. 117 (1967), Sawyer, 16 F.L.R. 354 (1970) and Brennan, 16 F.L.R. 358 (1970).   51 Id., 366.   52 Enacted in 1979, in consequence of the repeal of the virtually identically drafted section 50 of the Summary Offences Act 1970: Williams & Weinberg, op. cit., 367.   53 On the balance of probabilities: id., 367, fn. 96, citing Ex parte Patmoy; Re Jack, 44 W.N.(N.S.W.) 351 (1944), Wooley v Bomford, [1969] Tas. S.R. 127.   54 Citing Grant, [1979] 2 N.S.W.L.R. 478 and Grant, 55 A.L.J.R. 490 (1980).   55 Citing J.A.L. and L.L., 3 D.C.R. 182 (1974).   56 Citing Ferrell v Burrows, (1973) 4 S.A.S.R. 416, considered infra.   57 Williams & Weinberg, op. cit., 367–368.   58 See id., 368.   59 Citing Ferrell v Burrows, (1973) 4 S.A.S.R. 416.   60 Williams & Weinberg, op. cit., 368.   61 Id., 372.   62 Cf. chapters XXIV to XXVII of the Criminal Code.   63 Section 258(4).   64 [1962] Tas. S.R. (N.S.) 370.   65 [1948] Tas. S.R. 107.   66 Citing Weston v Smith, [1963] Tas. S.R. 27.   67 Citing Nicholas v Fleming, [1959] Tas. S.R. 165.   68 Report No. 25 on the Second-Hand Dealers Act 1905.   69 E.g. dealers in second-hand motor vehicles and spare parts, auctioneers and estate agents.   70 E.g. certain associations of antique dealers and dealers in fine art.   71 The Commission considered that charitable institutions should be automatically exempt in relation to donated goods but not goods that they paid for; it recommended that the Minister be given power to exempt specific charities generally or in respect of any particular class of goods.   72 Letter from W.G. Briscoe, Research Director, Law Reform Commission of Tasmania, 6 February 1987.   73 See Williams & Weinberg, op. cit., 373.   74 Id.   75 See Garrow & Caldwell's Criminal Law in New Zealand, 231–240 (6th ed., by R.A. Caldwell, 1981). Adams, Criminal Law and Practice in New Zealand, paras. 2090–2148 (2nd ed., 1971).   76 Cf. Lucinsky, [1935] N.Z.L.R. 575.   77 At the time of the reception: cf. Adams, op. cit., p. 547, para. 2106. Retention after acquiring knowledge subsequent to the receiving may constitute theft by conversion: Stone, [1920] N.Z.L.R. 462.   78 Cf. Creamer, 32 N.Z.L.R. 449 (1912), holding that the words “dishonestly obtained” are to be understood, not as referring to moral dishonesty, but as a summary of the earlier words in the subsection referring to a crime or to an act which would be a crime if committed in New Zealand; see Adams, op. cit., p. 546, para. 2105.   79 The references in the section to money in decimal currency in square brackets were substituted for references to money in the former currency by section 7 of the Decimal Currency Act 1964. The amount was raised to $300 from $40 by the Crimes Amendment Act 1986. No. 4, section 4. The 1986 Act also raised the amount of $10 to $100 in subsections (b) and (c) of section 258(1).   80 See LaFave & Scott, Handbook on Criminal Law, 681–691 (1977), 765–775 (Student ed., 2nd ed., 1986), Perkins & Boyce, Criminal Law, 394–405, 624 (3rd ed., 1982), American Jurisprudence, vol. 66, pp. 293–333 (2nd ed., 1973) and update supplement, pp. 24–48. Wharton's Criminal Law, vol. 4, ch. 25 (1981), Blakey & Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform. 74 Mich. L. Rev. 1511 (1976), Anon., Property Theft Enforcement and the Criminal Secondary Purchaser of Stolen Goods. 89 Yale L.J. 1225 (1980), Chamberlain, Anti-Fence Legislation, 14 A.B.A.J. 517 (1928) Clark. Note: Receiving Stolen Goods, 58 Dickinson L. Rev. 290 (1954), Wadden, Note: Criminal Law – Receiving Stolen Goods – Elements in the Crime, 26 N. Carolina L. Rev. 192 (1948), Weaver & Smith, Note: Receivers of Stolen Property in Pennsylvania, 12 U. Pittsburg L. Rev. 269 (1951), Miles, Comment: Criminal Law – Possession of Property – Burden of Proof – Duty to Explain, 68 Mass. L. Rev. No. 4, 199 (Dec., 1983). Hon. L. Sand. J Siffert, W Loughlin & S. Reiss, Modern Federal Jury Instructions: Criminal, ch. 54, Kroese, Comment: Arizona's Elimination of Specific Intent from the Crime of Receiving Stolen Property, 23 Ariz. L. Rev. 1362 (1981).

 

 

81 E.g. Ark. Stats. Ann., section 41–2206(1); Conn. Gen. Stats. Ann., section 53a–119 (8); Del. Code Ann. 11 section 851; Code of Ga. Ann., section 26–180b(a); Utah Code Ann., section 76–6–408(1); Rev. Code of Wash. Ann., section 9A.56. 140(1); cited by Wharton, op. cit., para. 459, fn. 67. See also Ohio Rev. Code, section 2913.51 (A), Commonwealth of Pennsylvania v Kelly, 446 A. 2d 941 (Pa. Super.. Ct., 1982).   82 E.g. Code of Ala., section 13–3–55; Cal. Penal Code, section 496(1); Minn. Stats. Ann., section 609.53(1) (2); Utah Code Ann., section 76–6–408(1); Rev. Code of Wash. Ann., section 9A.56.140(1); cited by Wharton, op. cit., para. 459, fn. 69; see also Corpus Juris Secundum, vol. 76, para. 7, and West's Wisc. Stats. Ann., section 943–34.   83 E.g. West's Fla. Stat. Ann., section 812–831 (1976); La. Stat. Ann. Rev. Stat. 14:69 (1979), cited by Perkins & Boyce, op. cit., p. 396, fn. 24; also Va. Stat. section 18.2–108, cited in M.P.C., para. 223.6, fn. 7.   84 Perkins & Boyce, op. cit., p. 397. A particularly wide definition is contained in Massachusetts ((p) ch. 226, section 21 (cited in M.P.C., Para. 223.6, fn. 7)) (“receives, buys, retains, possesses, controls, sells, transfers, transports, sends, or conceals”).   85 The Model Penal Code has been prepared by the American Law Institute, a private organisation of high prestige, whose members are lawyers, judges and scholars, which restates the common law and recommends reform of statutes. The approach favoured by the Model Penal Code was substantially endorsed by the National Commission on Reform of Federal Criminal Laws in its Study Draft of a New Federal Criminal Code, published in 1970 and in the Criminal Code Reform Act of 1979 (see Report of the Committee on the Judiciary, United States Senate (96th Congress, 2d Sess., Report No. 96–553)), which has not yet been enacted. Section 1732(a) provides that: “[a] person is guilty of an offence if he traffics in property of another that has been stolen.”“[a] person is guilty of an offence if he buys, receives, possesses, or obtains control of property of another that has been stolen.” An affirmative defence is provided by section 1733(b) if the defendant intended to report the matter to the police or the owner. Cf. the Report of the Committee on the Judiciary, United States Senate, supra, at 704. Valuable information on this subject was supplied to the Commission by Professor Martin Levine of the Law Center, University of California, and Professor Paul F Rothstein, of Georgetown University Law Center, Washington, D.C.   86 This incorporation of receiving into the offence of theft is considered infra, paras. 135–136.   87 106 F. 2d 438 (2d Cir. 1947).   88 See Robbins, Attempting the Impossible, 23 Harv. J. of Legislation 377 (1986), Dugdale, Note: Criminal Law – Putting the Defense of Legal Impossibility to Rest in North Carolina, 19 Wake Forest L. Rev. 605 (1983), McCardle, Note: Criminal Law – Attempt – Impossibility of Consummation of Complete Criminal Act not a Bar to Conviction for Attempt, 6 Villanova L. Rev. 575 (1961), Poche, Note: Criminal Law: Impossibility in Fact, 48 Calif. L. Rev. 314 (1960), G. Fletcher, Rethinking the Criminal Law, 154–157 (1978), Anon., Note: Criminal Law – Attempt – Conviction of Attempt to Receive Property Not in Fact Stolen, 13 Vand. L. Rev. 790 (1960), Arnold, Criminal Attempts – The Rise and Fall of an Abstraction, 40 Yale L.J. 53 (1930), Cherner, Note: Legal Impossibility Is Not a Defense to Inchoate Crimes, 58 Temple L.Q. 365 (1985).   89 185 N.Y., at 497, 78 N.E., at 170.   90 Robbins, op. cit., at 415, citing People v Rojas, 55 Cal. 2d 252, at 258, 358 P. 2d 921, at 924, 10 Cal. Rptr. 465, at 468 (1961) (a leading decision), Darr v People, 193 Colo. 445, at 449, 568 P. 2d 32, at 35 (1977), State v Rios, 409 So. 2d 241, at 244 (Fla. Dist. Ct. App., (1982), Darnell v State, 92 Nev. 680, at 681–682, 558 P. 2d 624, at 625 (1977), and State v Davidson, 20 Wash. App. 893, at 898, 584 P. 2d 401, at 404 (1978). In Rojas, supra, 358 P. 2d, at 924, the Court said:   “... [T]he criminality of the attempt is not destroyed by the fact that the goods, having been recovered by the commendably alert and efficient action of the Los Angeles police, had, unknown to defendants lost their 'stolen' status ... In our opinion the consequences of intent and acts such as those of defendants here should be more serious than pleased amazement that because of the timeliness of the police the projected criminality was not merely detected but also wiped out.”   91 See Guernsey, Note: Constitutionality of Presumptions on Receiving Stolen Property: Turning the Thumbscrew in Michigan and other Statutes, 21 Wayne L. Rev. 1437 (1975), Moehlmann, Case-note: Criminal Law – Presumption That Unexplained Possession of Recently Stolen Goods Is Sufficient Evidence of Guilt of Receiving Stolen Goods Held Unconstitutional, 75 Dickinson L. Rev. 544 (1971), Murdock, Receiving Stolen Goods – Inference of Guilty Knowledge from Recent Possession, 26 J. of Cr. L. Criminology & Police Science 618 (1936), T.J.W., Note, The Presumption Arising from the Possession of Stolen Property: The Rule in Indiana, 6 Ind, L.J. 73 (1972), Deahl, Note: Receiving Stolen Property – The Doctrine of Recent Possession and Problems Associated with Defendant's Testimony, 14 Land & Water L. Rev. 291 (1979), Anon., Note: Due Process Requirements for use of Non-Statutory Inferences in Criminal Cases, [1973] Wash. U.L.Q. 897. As to police powers of search and seizure, in relation to property believed to have been stolen, see LaFave, Search and Seizure, vol. 2, 243–247 (2nd ed., 1987), Burkoff, Search Warrant Law Desk-book, Section 9.3 (1987).

 

 

92 See generally McCormick on Evidence, 987–1000 (3rd ed., 1984), P Rothstein, Evidence: Cases Materials and Problems, 1421ff (1986), P Rothstein, Evidence: State and Federal Rules, ch. 2 (1981), Jefferies & Stephan, Defenses, Presumptions and Burden of Proof in the Criminal Law, 88 Yale L.J. 1325 (1979), Ashford & Rissinger, Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969), Neeson, Reasonable Doubt and Permissive Inferences: The Value of Complexity, 92 Harv. L. Rev. 1187 (1979).   93 In re Winship, 397 U.S. 358 (1970). See McCormick, op. cit., 989.   94 Cf. Patterson v New York, 432 U.S. 197 (1977), Distinguishing Mullaney v Wilbur, 421 U.S. 684 (1975).   95 The conceptual distinction between the ingredients of an offence and an affirmative defence is less thas fully clear. In Patterson, 432 U.S., at 210, the Court acknowledged the danger that state legislatures might “reallocate burdens of proof by labelling as affirmative defenses at least some elements of crimes now defined in their statutes”. But the Court was satisfied that there were “obviously” constitutional limits beyond which the States might not go in this regard.   96 319 U.S. 463, at 467 (1943).   97 395 U.S. 6, at 36 (1969).   98 Id., at 36, n. 64.   99 442 U.S. 140 (1979).   100 Id., at 157.   101 Id., at 167.   102 Id., at 157.   103 Id.   104 See Guernsey, op. cit., Moehlmann, op. cit.   105 412 U.S. 837 (1973).   106 See Commonwealth of Pennsylvania v Williams, 468 Pa. 357, 362 A. 2d 244, 89 A.L.R. 3d 1190 (1976), (and supporting Annotation in A.L.R.); Commonwealth of Pennsylvania v Worrell, 419 A. 2d 1199 (Pa. Super. Ct., 1986), People v Roder, 33 Cal. 3d 491, 189 Cal. Rptr. 501, 658 P. 2d 1302 (1983), analysed in 11 Pepperdine L. Rev. 187, at 228–232 (1983).   107 Citing Turner v United States, 396 U.S. 398 at 417 (1970), Leary v United States, supra, at 46.   108 412 U.S., at 845–846.   109 Laws of Hong Kong, cap. 210 (1980 ed.).   110 See the Indian Penal Code 1860 (1986 ed.).

 

 

CHAPTER 4: PROPOSALS FOR REFORM

In this chapter we make proposals for reform of the law in regard to receiving stolen property.

A. General Policy Considerations

106.

At the outset it is perhaps desirable to spell out our general approach towards reform of criminal law, and of the subject of receiving stolen property in particular. We consider it appropriate that the law should be framed in such a way that conduct which is, by common consent, wrongful and lacking social or individual justification should not fall outside the scope of criminality merely by reason of the technical operation of rules applied without concern for the policies which those rules seek, or should seek, to serve. For example the decision of Walters v Lunt,¹ whilst arguably correct in terms of the present rules as to criminal liability for receiving, clearly gives rise to concern. That concern is not simply an instinctive incoherent reaction that immoral behaviour ought to be punished; instead it causes us to re-examine the rule, previously regarded as satisfactory and sensible, that a necessary ingredient in the offence of receiving is that the goods should have been stolen. Thus a controversial case forces us to look more closely at the rules and to examine the policies which they seek to serve. That examination may sometimes result in the conclusion that a particular rule, although having somewhat unpalatable results in certain contexts, is, on balance, the best that can be devised. It may on other occasions result in the conclusion that what seemed a sensible rule must either be modified, subjected to certain qualifications and exceptions, or perhaps even abandoned entirely.

While the exposition of the present law in Chapter 2 and the comparative material in Chapter 3 establish clearly, in our view, that our present law on receiving is in many respects unnecessarily favourable to the accused, presents unreasonable obstacles to the

 

 

prosecution and is seriously out of date, it would, however, be wrong to adopt in response a posture so extreme as to deprive the accused of safeguards which are an essential feature of our system of criminal justice. The necessary consequence of ensuring that the innocent are not convicted is that the guilty will sometimes escape.

We are also of the view that, while conditions peculiar to this jurisdiction, including the requirements of the Constitution, must constantly be borne in mind, it is desirable that our law in this area should correspond reasonably closely to the law in the neighbouring jurisdictions of Northern Ireland and Great Britain. Where that legislation seems reasonably adapted to securing the same objectives as those which we would wish to see achieved by the law, we think there is much to be said, particularly in the context of extradition, for endeavouring to ensure a degree of harmony, so far as practicable, between the criminal law in the different jurisdictions. It is useful to cite some observations² of Henchy J in this connection:

It must be emphasised, however, that our overriding objective must remain the enactment of a law on this topic which is just and reasonable as well as effective. The wider policy considerations affecting the law of extradition addressed by Henchy J do not concern us in this Report and we think it is clear that the desirability of securing legislative harmony between the jurisdictions in these islands must play a secondary role in our conclusions.

 

 

B. The Scope of the Concept of “Receiving”

107.

We must first consider whether the concept of “receiving” stolen goods, as it operates under present law, is satisfactory.

In defence of the present approach it may be argued that, although its parameters can be uncertain in their application in specific cases, the present definition has not given rise to serious difficulties. The law should be slow to make a criminal offence out of conduct where the motivation of the person involved may be that of passively seeking to facilitate a friend rather than to play an active role in the disposition of the stolen goods.

We are not impressed by this argument. The question of motive, though important, should not determine the scope of the actus reus in this context. Moreover there is a range of conduct which by common consent is anti-social and without any justification but which falls outside the scope of receiving as at present defined.

108.

We consider that the case for expansion is unanswerable. The only question is as to how best this should be done. In England, as we have seen,⁴ section 22 of the Theft Act 1968 provides that it is an offence, not only if a person receives stolen goods, but also if he “dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so”. This offence contains so much more than receiving that it was considered appropriate to change the name of the offence to “handling” stolen goods.

Another precedent is section 223.6 of the United States Model Penal Code. Under this, it will be recalled, a person is guilty of theft if he “purposely receives, retains or disposes of movable property...” and “receiving” means “acquiring possession, control or title or lending on the security of the property”.

Both these models undoubtedly extend the concept of “receiving” in a significant manner and the adoption of either of them should assist in the prosecution and conviction of persons whose behaviour in relation to stolen goods would be regarded by society at large as criminal, but who at present escape conviction because of the narrow confines of the concept of “receiving”.

We are satisfied that the offences we propose should be capable of being committed at a time other than the moment of receipt of goods. It is worth noting that section 33(4) of the Larceny Act 1916 constitutes a possession-based offence. We consider that a person should be capable of committing the offence if, having received the property innocently, he subsequently retains it with mens rea. We are also satisfied that the penalty for larceny and receiving should be the same. We see no reason why a thief should not also be a handler: in fact later in the report we will discuss the question whether in the future larceny and handling should be assimilated into one offence, as has been done in the Model Penal Code. There are clearly different modes of dealing with stolen property, possessory and non-possessory. Nevertheless we are of opinion that only one offence should be created and that the legislation

 

 

should provide for a simple form of charge and indictment for that offence.

It was the policy of the British parliament when it enacted Section 22 of the Theft Act to keep dealing and handling distinct offences. This policy, according to Professor JC Smith, added “further unfortunate complications to an already complicated offence”.⁵ Kilner Brown J in Bloxham⁶ refers to “the convoluted terminology of the section as a whole”. Spencer points out⁷ that the section prohibits thirty two types of non-possessory handling and that it would not be possible for a defendant to commit some of the offences created – for example, to “undertake the retention of stolen goods by another”. Glanville Williams observes that the draftsman “obscured his meaning by rolling the various alternatives into a complex sentence”...⁸ Referring to the fact that he was a member of the Criminal Law Revision Committee which considered the draft of the sub-section, he says: “Little did we realise what an ugly duckling we were fostering!”⁹

Whatever about the drafting of the section as a whole, we think that “handling” is an appropriate general description of the offence. Glanville Williams has given his imprimatur to the word “dealing” to cover handling which is not handling by receiving. Dealing is one of the modes of the actus reus most frequently used under Section 186 of the Customs Consolidation Act, 1876. It has been pointed out to us, however, that there is a danger it might be given a somewhat narrow interpretation, for example, one which would confine it to commercial transactions and thus defeat the object of employing it as a word of general definition.

The words normally used when offences of possession are created, in relation to drugs, firearms or explosive substances, for example, are “having in possession” and “having under control”. We recommend that the word “handling” should be used as the one word to describe the actus reus of the offence. “Handling” should in turn be defined as receiving property or having it in one's possession or under one's control or arranging (or assisting in) its retention, removal or disposal by another person.

C. The Mental Element

109.

We must now consider the difficult question of the mental element in the offence of receiving. The policy issues are complex, and allow for no obviously satisfactory answer. The best approach is to examine several possible legislative strategies, testing their strengths and weaknesses. These strategies are the following:

We should note at the outset that the precise enunciation of the basis of liability in each of these categories need not greatly exercise us. What we are concerned to bring forward are general reference points, in the gradual progress from complete disregard for the mental element, reasonable or unreasonable, through an objective standard of reasonable belief, culminating ultimately in a completely subjective standard, with the need for certainty on the part of the accused that the goods were stolen. We have traced this progress in twelve stages; it would, of course, have been possible to break it down into even more stages.

1. Liability based on reception without regard to the belief of the accused as to whether the goods were stolen¹¹

110.

Under this approach, an accused could be convicted of receiving where he receives or has in his possession stolen¹² goods, without any need on the part of the prosecution to show that he believed them to have been stolen, or, indeed, to show that a reasonable person would have had any suspicion as to their provenance. In favour of this approach it can be argued that an offence drafted on these lines would offer considerable practical advantages. At present, when a professional receiver makes no statement, it is very difficult for the prosecution to establish proof of the necessary ingredient that the accused knew that the goods were stolen. If the law were to forego this requirement, the prospects of conviction could be far greater. Prosecutorial discretion might ensure that prosecutions would be taken only where in fact there was reason to believe that the accused had acted dishonestly.

 

 

The criminal law is no stranger to strict liability. Apart from operating in a wide range of statutory offences in regard to public health and other areas, the law relating to mistake of age in regard to carnal knowledge, for example, punishes conduct even when the mistake is reasonable.

Receiving, it is said, is a serious social problem. The familiar statement that without receivers there would be fewer thieves is obviously true. From time to time the Oireachtas, bearing in mind the exigencies of the common good, has addressed serious social problems by creating absolute offences, some of which cannot be reconciled with a “subjectivist” approach. An obvious example is the legislation relating to the possession of drugs. Another example is that relating to driving with excess blood-alcohol. The consequences are extremely serious for certain persons convicted. Statistics show that the legislation has saved lives and reduced serious injuries.

111.

We have no hesitation in rejecting this option. We find it difficult indeed to see how legislation on these lines could be reconciled with the constitutional guarantee that persons are not to be tried for serious criminal offences save in due course of law. An offence creating a form of absolute liability in these circumstances would seem to merit the description given by Henchy J in King¹³ of the offence purportedly created by s. 4 of the Vagrancy Act 1824:

No useful comparison can be drawn with the existing legislation relating to the possession of drugs or driving with excess blood alcohol, which relate to the possession or consumption of specific substances perceived as socially dangerous in defined circumstances. The proposed new offence would, by contrast, encompass under the one umbrella of serious criminal guilt the professional “fence” who plays a major figure in the organisation and promotion of crime and an

 

 

innocent housewife who buys for full value in perfectly good faith a second-hand vase in an antique shop wholly unaware that it is stolen and with no reason to suppose that it is stolen. It can indeed be said that this option is mentioned for the sake of completeness only and does not deserve further serious consideration.

2. Liability based on reception where a reasonable person ought to suspect that the goods were more probably stolen than not

112.

This option adopts an objective test of responsibility: the accused will be liable, not for what he actually suspected regarding the provenance of the goods, but for what he ought, as a reasonable person, to have suspected. An offence drafted on these lines would no doubt make it clear that this test of reasonableness would be determined in the light of information to which the accused had, or ought to have had, access.

There is something to be said in favour of this option. In summary, the reception of stolen goods without due regard to the possibility of their having been stolen is clearly anti-social behaviour. Thieves need receivers: they need the professional fence but they also need the careless purchaser who buys property at a clear undervalue with no concern for the provenance of the goods. On this view, a person who acquires stolen property without taking due care as to its origins may be regarded as having only himself to blame if he is punished¹⁴ for his carelessness. In his book, Theft, Law and Society,¹⁵ Jerome Hall¹⁶ writes:

There are undoubtedly difficulties in proving the true state of the defendant's mind. It is not to be expected that professional receivers will make statements admitting guilty knowledge. Nor can it be assumed that they will tell the truth on oath. In the result, a jury, fairly and carefully directed by the trial judge, may find the greatest difficulty in avoiding the conclusion that there is at least a reasonable doubt as to whether the prosecution have proved such guilty knowledge. Against this background, the introduction of an objective test of guilty knowledge has obviously much to commend it.

As against this, however, the criminal law has traditionally leaned strongly against offences based on negligence rather than subjective intention or recklessness. Its policy, generally speaking, has been to punish subjective guilt rather than objectively defective conduct. There are, it is true, some important exceptions to this general principle, notably manslaughter. But the question remains as to whether there are social factors sufficiently compelling to make receiving stolen property an offence based on negligence when larceny is not.

 

 

A further argument advanced against criminal liability based on this objective criterion is that the interests of society are enhanced by having a reasonably free market in goods. If people who are engaged in the buying and selling of goods, whether they be businessmen or not, have to exercise a high degree of caution in the acquisition of property under the threat of criminal sanction, the result could be a chilling effect on economic activity to the detriment of society. There would be an inevitable tendency to “play safe” lest a court or jury should come to the conclusion that the facts warranted a reasonable suspicion that the goods were stolen.

As against this, the view can be expressed that it is the free market in goods which causes the problem and that it would make receiving more easily detected if trade were entirely directed into established retail outlets and away from public houses, roadsides and other informal outlets. (This would have the incidental benefit of enabling the State more readily to collect taxes arising from such sales.) On this view, the market for the thief should be restricted and, if possible, abolished. A further argument against this option, however, is that it might have the unintended consequence of placing unwarranted restrictions on the economic freedom of certain economically disadvantaged persons, including those lacking a permanent home. Pawnbrokers, shopkeepers and private persons might consider it safer to avoid some kinds of economic transactions with these persons on the (possibly quite unwarranted) view that a suspicion arose as to the provenance of goods in their possession. This could be met by the argument that the law should encourage such traders to be careful since, at present, some of them are responsible, wittingly or unwittingly, for the disposal of much stolen property.

On balance, however, the arguments based on social considerations are not nearly sufficiently strong to justify such an inroad on the traditional approach of the criminal law.

3. Liability based on reception where a reasonable person ought to have been certain that the goods were stolen

113.

This option¹⁷ is, of course, similar in a number of respects to option no. 2. The only difference is in regard to the degree of suspicion. The same basic arguments and counterarguments apply as with option 2 although trade would be less restricted.

The principal argument in favour of this option is that, while there may be some reason for hesitating in rendering criminal conduct that is simply unreasonable, there is far less reason to do so where the accused must have acted with a high degree of carelessness.

A major argument against this option is that, whether the test be subjective or objective, certainty as to the provenance of goods represents an impossibly high test.

4. Liability based on reception where the accused was reckless as to whether the goods were stolen

114.

This option is far closer to the traditional policy of criminal law

 

 

although, as we have seen,¹⁸ it does not represent the law in relation to receiving stolen property.

In favour of this option it may be argued that the requirement of recklessness affords sufficient deference to subjective wrongfulness in this context. We are dealing here with anti-social conduct of a serious kind. If an accused, having addressed the question whether the goods were stolen, decides to take a chance, it may be said that this behaviour is sufficiently wrongful to warrant punishment.¹⁹

Recklessness was used by the legislature in the definition of rape in the Criminal Law (Rape) Act 1981. The legal implications of recklessness were addressed by the Supreme Court in the context of a prosecution for capital murder of a Garda in the People v Murray.²⁰ It appears to us that the concept of recklessness, properly defined, has advantages in the context of the appropriate mens rea for receiving. We say “properly defined” because, unless the term is clearly defined, the Court could interpret the term in either a subjective or objective sense. One interpretation would require the accused to have actually adverted to the risk that the property had been stolen before there could be a conviction. Under the alternative interpretation there could be a conviction if a reasonable man would have adverted to the risk in the circumstances, whether or not the particular accused adverted to the risk.

By way of illustration, the English Law Commission in their Report (No. 29) on Criminal Damage, published in 1970, recommended that the formula “unlawfully and maliciously” used in the Malicious Damage Act 1861 be replaced by a formula of intention or recklessness, (as regards perpetrating the particular damage). In their Working Paper on the topic (No. 23), in 1969, they had expressly approved of the decision in Cunningham²¹ and quoted the following passage from the judgment in paragraph 33 of the paper:

The Commission clearly intended the recklessness test to be subjective. The Criminal Damage Act 1971 duly incorporated a recklessness provision without specifically defining the term. In due course, and to the surprise of many commentators, the House of Lords approved of an objective test in their decision in Caldwell.²² Lord Diplock broadened the definition as follows:

 

 

115.

All of this points to the desirability of a specific definition of recklessness. Mary McAleese concluded an article²⁴ on the subject as follows:

If one adopts the subjective approach one could look to the English Law Commission for a definition:

Mary McAleese says of this definition:

There can be little or no doubt that recklessness in criminal law has always been defined in a subjective sense, at least before the Caldwell decision. Ranged in its favour are Kenny, Smith and Hogan, Jerome Hall, Glanville Williams, the English Law Commission and the American Law Institute, not to mention Lords Edmund Davies and Wilberforce who dissented in Caldwell. It presents an acceptable and just definition for the criminal law in general.

One argument against a criterion based on recklessness is that it would create difficulties for those engaged in dealing and in formal commerce. They would certainly advert to the risks involved in their trade and would have to be extremely cautious.

Blakey and Goldsmith say in support of a recklessness test:

 

 

In his judgment in Murray,²⁹ Henchy J considered the test of recklessness to be well stated in section 2.02 (2) (c) of Tentative Draft No. 4 of the Model Penal Code:

It may be argued that this definition of recklessness could form an appropriate basis for a definition of recklessness in a new offence of handling unlawfully obtained property.

5. Liability based on reception where (i) the accused was reckless as to whether the goods were stolen and (ii) a reasonable person ought to have been certain that the goods were stolen

116.

This option offers a cumulative test of liability. An accused would be liable only where he was reckless and a reasonable person would have been certain that the goods were stolen.³⁰ In favour of this combination of the subjective and objective approaches, it may be argued that it best reflects the reasonable claims of the accused not to be subjected to unduly wide-ranging criminal liability. The objection to punishing a person for receiving where he is guilty merely of recklessness may be considered to be answered if the circumstances are such that any reasonable person, far from simply adverting to the possibility or likelihood of the goods being stolen, would have been convinced that they were so.

As against this, it may be argued that any attempt satisfactorily to combine subjective and objective criteria is doomed to fail. If the claim of the subjective approach is good enough to heed, the objective approach must to that extent give way. The whole basis of the subjective approach is that unreasonable, foolish or careless conduct should not, as a general rule, give rise to criminal liability in the absence of subjective mens rea. To consider that there is room for compromise, it may be said, is simply to misunderstand the moral force of the subjective approach.

117.

From an entirely different standpoint, the present option may also be criticised. If there is a sufficient degree of subjective mens rea, the additional heavy requirement that objectively the facts should warrant a reasonable person being certain that the goods were stolen may seem to be an overcautious limitation. Why should a person who

 

 

accepts goods when he continues to believe that there is a real possibility that they were stolen be relieved of liability because the hypothetical reasonable person would not be certain that they were so? Such a criterion would be likely greatly to restrict the scope of the offence of receiving, unless perhaps the legislation also provided that, where the accused was nearly, or actually, certain that the goods were stolen, he could be convicted, regardless of whether or not a reasonable person would have been certain that they were so. Alternatively, as has been mentioned, the objective element in the cumulative formula could be modified so as to require merely that a reasonable person, in the circumstances, would have suspected that the goods were stolen.

6. Liability based on reception where the accused actually suspected that the goods were stolen

118.

With this option we have reached a point where courts have sometimes been willing to convict for receiving. We have seen³¹ that in England, where knowledge or belief that the goods were stolen suffices, several trial judges have used the language of suspicion when addressing juries, only to find the Court of Appeal insist that suspicion, even strong suspicion, is not enough.

In our discussion of this option we proceed on the basis that the suspicion in question would have to be one of substantial proportions, rather than merely fanciful. Perhaps it might be expressed in terms of a belief that the goods were more likely than not to have been stolen.

A strong case may be made in favour of this option. Why should any person escape criminal liability where he accepted property when actually suspecting that it was stolen? The conduct has nothing to be said for it from the standpoint of personal moral responsibility or of social needs.

119.

There does, however, remain the question of a possibly undue limitation on commerce. Dr Glanville Williams, addressing this issue, has written:

 

 

We see the force of this argument, but we consider that the social implications might be less significant than Dr Williams suggests. We again stress that “suspicion” in the context of this option envisages a serious rather than a fanciful concern as to whether the goods were stolen.

7. Liability based on reception where the accused believed that the goods were stolen

120.

We must now consider whether the test should be one of belief that the goods were stolen. This solution was adopted in section 22 of the English Theft Act 1968, to unfortunate effect.³³ These difficulties have been attributed to the judicial interpretation of the section. Spencer observed that:

There is, however, an inherent problem with using the word “belief” in this context, which the English courts were surely correct in sensing. Belief admits of degrees of commitment, ranging from certitude to suspicion.³⁵ There is little advantage in a legislative definition which leaves the question of the accused's mens rea in such an imprecise state.

8. Liability based on reception where the accused was virtually certain that the goods were stolen

121.

This option is very close to the existing law, if not, indeed, identical to it. It affords a subjective test, which is the approach generally favoured by the criminal law. It is not so restrictive as to require absolute certainty on the part of the accused that the goods were stolen.

But the drawback to this option must also be recognised. It fails to render criminal conduct where the accused adverts to the risk that the goods are stolen, and strongly suspects that they are, but that strong suspicion falls short of virtual certainty.

 

 

It is also worth mentioning (although not necessarily as a criticism of this option) that the task of the prosecutor in attempting to prove this mens rea would be an unenviable one. Sometimes the facts are so strong that they will support, if not require, the inference that the accused must have been certain, or virtually certain, that the goods were stolen; but in many cases this conclusion will not be warranted. The result is that many people in possession of stolen property in suspicious circumstances would, in practice, be beyond the reach of the criminal law.

9. Liability based on reception where the accused was actually certain that the goods were stolen

122.

This option, in requiring actual certainty, would go further than most common law jurisdictions have done. Unquestionably it ensures that no defendant who is uncertain as to the provenance of the goods will be convicted. But of course it thus leaves free from criminal responsibility for receiving, those who accepted goods with a virtual certainty that they had been stolen.

It may be argued that this option has the balance wrong. It cannot be defended on the basis that any broader range of liability could prejudice innocent persons: those who accept goods when having a virtual certainty that they were stolen can scarcely be described as “innocent”.

It should, however, be noted that this option would ensure the free movement of goods. No one in commerce could possibly complain about a law which penalised reception only when accompanied by absolute certainty that the goods had been stolen.

10. Shifting the Burden of Proof

123.

We have noted in Chapter 2 that, when the prosecution have proved unexplained possession of goods recently stolen, a presumption of fact is raised which shifts the evidential burden of proof onto the accused. In these circumstances, once the presumption of fact is raised, the court should not accede to an application for a direction on behalf of the accused. In Oglesby,³⁶ the Court of Criminal Appeal while they expressed their decision in a different manner, and with different emphasis, confirmed this as the law. They rejected the proposition that a “doctrine of recent possession” shifted the legal burden of proof onto the accused.

We are satisfied that the Oglesby decision has occasionally been misunderstood by the courts. Certain Judges and District Justices have, from time to time, interpreted the decision to mean that unexplained possession of recently stolen goods does not even raise a presumption of fact and have therefore acceded to applications for a direction. These directions are perhaps explained by the passage in the Oglesby judgment in which the court, attacking the “so called doctrine”³⁷ of recent possession describes it as:

 

 

While it is true that the onus of proof never leaves the prosecution or, to put it another way, that no legal or persuasive burden of proof is shifted onto the accused, such possession does raise a presumption of fact which shifts an evidential burden onto the accused.

In addressing the problem presented by offences based on possession where no presumptions of fact have evolved into well settled law, the legislature has addressed the problem by making specific statutory provision for the raising of inferences and the shifting of burdens. Section 4 of the Explosive Substances Act 1883 and Section 27 (A) of the Firearms Act 1964, as inserted by Section 8 of the Criminal Law (Jurisdiction) Act, 1976, create similar offences for the suspicious possession of explosives and firearms. Section 27 (A) provides:

The drafting of this section lays bare the inferential process upon which the prosecution has to rely in any case in which the proofs are based on circumstantial evidence. The Explanatory Memorandum to the Act says the following about this offence:

Thus as far as the burden of proof is concerned, the law is the same for receiving stolen goods as it is for the suspicious possession of firearms. Only the drafting is different.

124.

Another mode of shifting the burden of proof suggested by some of our commentators is the raising of presumptions. This can be done either by adopting a general formula or by prescribing the specific circumstances in which presumptions would arise. Section 15(2) of the Misuse of Drugs Act, 1977 provides a combination of the general and the particular:

Section 15(2) shifts the legal burden of proof onto the accused. However, it would be open to the legislature to employ the presumption formula but to raise evidential burdens only. It has been suggested to us that presumptions shifting a burden of proof could be raised where, for example, the accused is in possession of recently stolen goods, where he gives a false explanation for such possession, or where he admits buying the property at a price significantly lower than market value.

125.

A further mode of shifting the burden of proof would be to create an offence similar to that found in Section 8 of the Forgery Act 1913, which would provide that an accused found in possession of stolen property would be guilty of an offence if such possession was without lawful authority or excuse, the proof whereof should lie on the accused. When a legal burden of proof is placed on the accused, the judge must direct the jury that, although on other matters it is for the prosecution to satisfy them beyond reasonable doubt, on the matter in question it is for the defence to satisfy them on a balance of probabilities.

126.

The shifting of the legal or persuasive burden of proof onto the accused would have the constitutional implications which we have already stressed in our discussion of the first option. In their Report on Evidence, the English Criminal Law Revision Committee were “strongly of the opinion that, both on principle and for the sake of clarity and convenience in practice, burdens on the defence should be evidential only”.³⁹ Later in the same paragraph they said:

 

 

We agree. Even if they raise evidential burdens only, we do not favour setting out specific circumstances in which presumptions may be raised in the section constituting the offence. In the examples above and in any other examples given to us, the accused is in possession of the property. Under the law as it stands such unexplained possession is already sufficient to shift an evidential burden onto the accused.

We are satisfied that to superimpose a layer of statutory presumptions on top of the presumption of fact which already exists in relation to stolen goods would give rise to difficulty and prove confusing both for judges in charging jurors and for the jurors themselves. We agree with Professor Cross when he says:

11. A “Graded” Solution, where the Severity of Punishment would depend on the extent of Mens Rea

127.

We now must consider what can be described as a “graded” solution, whereby the prescribed punishment would vary in severity according to the degree of mens rea established on the part of the defendant. The extent of gradation could, of course, range from the complete absence of mens rea to full certainty that the goods were stolen. A more limited range of gradation would be between recklessness and knowledge. The case in favour of the latter option was put by two commentators as follows:

 

 

The imposition of differential punishments based only on differences in mens rea would unduly restrict the Court in its sentencing functions. Undoubtedly the extent of mens rea would often play a very important part in determining the appropriate sentence, but it is only one of a number of important factors to which the Court should give consideration. For the legislature to prescribe significant differences in punishment based on this factor alone might be considered to be a restrictive solution.

12. Imposing more onerous obligations on convicted receivers

128.

Under this solution, the law would have a generously subjective standard for first offenders, requiring proof of knowledge or near certainty that the property was stolen. However, a person who had then been convicted of receiving would thereafter be held to an objective standard of using due care in respect of receiving or otherwise dealing with property.

In favour of this approach, it may be argued that a person who has “had his fingers burnt” may be called on to exercise due care in future. Having shown himself to be dishonest in relation to another's property, he can be required to exercise greater control in the future. It is true that he is being called on to exercise care that others are not required to exercise, but they have not been found guilty of receiving and in any event the obligation imposed is only that of exercising reasonable care. Why should a convicted receiver be entitled to insist on dealing with others' property in the future without exercising due care as to its provenance?

A practical argument in favour of this approach is that it would make far easier the task of the prosecuting authorities in relation to professional receivers who are happy to avail themselves repeatedly of the “knowledge or near certainty” test, which makes conviction so difficult.

129.

There are, however, some strong arguments against this approach. It can be said that one act of criminal receiving, with knowledge or near certainty that the property is stolen, is not a rational basis on which to impose a new and different duty, ranging far more widely and continuing for an indefinite time. If there is a sound rationale for imposing a criminal sanction for the failure to exercise due care as to the provenance of property, the rationale can scarcely be limited to cases where a person has, on one previous occasion, acted, not without due care, but rather in a different manner, involving subjective appreciation that the goods were stolen.

The question must arise as to why the requirement of exercising due care, if this be sound, should be restricted to those convicted of receiving. It would be curious if a convicted thief should be free of this requirement, or indeed, any other person convicted of an offence involving dishonesty. If this suggestion were followed, there would be a very major extension of the imposition of an objective requirement of exercising due care.

 

 

Also to be borne in mind is the practical problem of the prejudicial implications for a person accused of receiving, judged by this objective test, in that the jury would be told of the previous conviction of the accused. It would be possible to devise a system whereby the jury would not be told of this fact, but, if there were a “two-tier” offence of receiving, with the objective test applying only to those who have a previous conviction for receiving, it would be difficult for the jury not to be aware of this fact, as part of the common experience of society, even if no express reference had been made to it during the proceedings.

There is a further and, in our view, fatal obstacle to this proposal. We have already referred to the doubts as to the constitutional validity of s. 43 of the Larceny Act 1916, which already permits the introduction of evidence as to the possession of other stolen property and of previous convictions for receiving, raised by the decision of the Supreme Court in King v Attorney General. In our view, these doubts must equally apply to the constitutional validity of the option now under consideration and accordingly we think it must be rejected.

Conclusion

130.

We think that the present law is undoubtedly too favourable to the accused. After detailed consideration of the several options for reform mentioned above, we have come to the conclusion, and recommend, that the test of liability in the new offence should depend on whether the defendant knew or was reckless as to whether the goods were unlawfully obtained. We consider that such a provision would not erode the rights of defendants unfairly. As regards the definition of recklessness for this purpose, we are attracted by the approach favoured by the American Law Institute in section 2.02(2)(c) of the Tentative Draft No. 4 of the Model Penal Code, which we consider should form the basis of the legislative definition.

We also consider that, without in any sense altering the present state of the law in relation to the burden of proof, it would be useful to re-state the law as laid down by the Court of Criminal Appeal in Oglesby and Melody in statutory form so as to make it clear that where the accused is charged with handling unlawfully obtained property and the prosecution have proved possession by the accused and that the goods had been unlawfully obtained, the jury should be told that they may, in the absence of any reasonable explanation, find the accused guilty.

Dishonesty

131.

Section 22 of the Theft Act provides that the handling must be done “dishonestly”. The Criminal Law Revision Committee had taken the view that the ingredient of dishonesty was implied in Section 33(1) of the Larceny Act 1916. They were of opinion that “the considerable extension of the offence makes it desirable to provide expressly that dishonesty should be necessary, and this will be in accordance with the bill generally”.⁴² Somewhat like “belief”, the word “dishonestly” has had a rather unsettled history in the English courts. Professor JC Smith suggests a definition in the context of theft:

 

 

Whereas that definition may work well for theft it would superimpose yet another tier of knowledge or recklessness on to the basic mens rea for handling. If any formula were thought necessary we would consider it preferable to use the phrase “without lawful excuse” used in Section 33(4). This phrase can be used without shifting any legal burden onto an accused and circumstances and factors constituting lawful excuses can be set out in the legislation. It is the formula used by the U.K. Parliament in the Criminal Damage Act 1971 instead of “unlawfully”.

However, we are not convinced that it is necessary to include in the section constituting the new offence of handling any provision corresponding to “dishonestly”, “unlawfully”, or “without lawful excuse”. The absence of such a word or expression in Section 33(1) of the Larceny Act 1916 has given rise to no problem. The Criminal Law Revision Committee were not specific as to any problem generated by the expansion of the receiving offence in the Theft Act. Commenting on the English Law Commission Report on Criminal Damage (No 29) which preceded the 1971 Act, Smith and Hogan say:

Cases where the goods are not stolen

132.

We have seen how, under present law, a conviction for receiving will not lie where the goods, at the time of reception by the defendant, were not in fact stolen goods. This situation may result from the fact that the apparent “thief” was not such; it may also occur where the goods, although they had indeed been stolen, had ceased to be so before their reception by the defendant. We have also examined cases where there is no direct proof of theft.⁴⁶

We have seen what great difficulties have arisen in other jurisdictions in relation to prosecutions for attempted receiving in cases where the goods were not stolen at the time of the reception. The problem of criminal liability for attempting the impossible is a formidable and controversial one.

Two approaches may be considered. The first solution seeks to ensure that the defendant may be convicted of attempted handling. Much of the English Law Commission's Report [No. 102] on Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement is devoted to the Haughton v Smith⁴⁷ decision and its consequences. In Partington v Williams⁴⁸ the defendant took a wallet from a drawer in

 

 

the office of her employers and looked in it with the intention of stealing any money it might contain. It contained none. She was convicted of attempting to steal, but the conviction was quashed on appeal. In Nock and Alsford⁴⁹ the appellants, who agreed to obtain cocaine by separating it out from a powder which in fact did not contain cocaine, were successful in their appeal against conviction for conspiracy to contravene section 4 of the Misuse of Drugs Act 1971.

So far as it is relevant to the question of receiving, we agree with the English Law Commission's conclusion that:

Following on the English Law Commission's Report, the Criminal Attempts Act 1981 was passed. Section 1 provides:

In his Textbook of Criminal Law, Glanville Williams comments:

133.

We can find no recent Irish cases on the subject of attempting the impossible. In view of the fact that this report is confined to receiving (and attempted receiving) and does not extend to the offence of larceny (and attempted larceny), or to the law of attempt in general, we do not address this latter question. We limit our recommendation to the proposal that, in a prosecution for attempted handling (as the offence

 

 

will be termed), the defendant may be convicted even though the facts are such that the commission of the offence of handling is impossible if, on the facts as the defendant believed them to be, he would have been guilty of attempted handling.

The second approach to the problem in relation to receiving is to exclude, from the proposed legislation, the requirement of proof that the goods were unlawfully obtained.⁵³ The effect of this solution would be that the defendant is guilty of the substantive offence of handling, not merely of an attempt to commit that offence.

This, however, is a somewhat drastic solution and we do not think that the mischief is sufficiently widespread to justify so radical a proposal.

Property believed to have been acquired by criminal means other than by stealing

134.

We now must consider the position where a person receives property believing that it was acquired by criminal means other than by theft. He may, for example, believe (or later say he believed) that the goods had been the subject of embezzlement or fraudulent conversion. A somewhat different problem, which apparently occurs reasonably frequently, is that the person claims that he believed that the goods had been smuggled into the State from Northern Ireland or elsewhere.

Yet another difficulty under present law (as we have seen⁵⁴) is that if the accused believes the goods were obtained by a felony when they were, in fact, obtained by a misdemeanour only, he is not then guilty of receiving.

To resolve these difficulties we consider that the legislation should provide that the offence would be committed in respect of goods unlawfully obtained and that it should not be necessary to specify how the goods were unlawfully obtained. “Unlawfully obtained” could be defined as “obtained in circumstances amounting to an offence (including any breach of Section 186 of the Customs Consolidation Act 1876)” The definition should be extended to cover cases where the goods were obtained lawfully and were subsequently criminally misappropriated.

Handling and Larceny

135.

We now must consider the very troublesome question of the relationship between receiving and larceny. As we have seen, the courts have frequently asserted that a person cannot at the same time be guilty of both receiving and larceny. Where the District Justice at the preliminary examination refuses informations on one charge and returns the accused on trial for the other, it is not possible for the Director of Public Prosecutions to return the accused for trial on the charge in respect of which informations were refused.⁵⁵ Also, as we have noted, where the District Justice convicts on one of the two charges and either acquits or makes no order on the other, the Circuit Court on appeal may not substitute a conviction on this other charge.⁵⁶ Thirdly, where a justice convicts of larceny in a case which is arguably

 

 

receiving, the accused is not exposed to any risk in appealing to the Court of Appeal, as he cannot be prosecuted again on the receiving charge. Finally, in a case where only receiving is charged, the accused may seek and obtain an acquittal if he can convince the Court that he was in fact the thief.⁵⁷

How best can the law be improved? A radical solution would be to assimilate the offence of receiving into that of theft. This is done by section 223.6 of the Model Penal Code. A Comment supporting the provision states:

136.

We are greatly attracted by this solution, and it may well be that, when we are making recommendations for the reform of the law of larceny, we will favour this approach. We consider, however, that it would be premature and quite inappropriate to make such a recommendation now, before we have come to any conclusion on the question of reform of the law of larceny.

If this radical solution is not now to be availed of, other solutions may be contemplated. One would be for the legislation to provide that where a person is charged with larceny he may be convicted of handling and vice versa. This would solve a number of problems, but only if the legislation were to provide specifically that a conviction for one offence did not involve an acquittal in relation to the other.

Section 44(4) of the Larceny Act 1916 provides that if a person is indicted for false pretences and it is proved that he stole the property in question “he shall not by reason thereof be entitled to be acquitted of obtaining such property by false pretences”. This is an unusual provision and provides for an artificial finding but it serves as a useful precedent.

137.

Finally, we must consider a problem that can arise at trial. It may be clear that the defendant was guilty of either theft or handling but it may not be clear which. In those circumstances Professors Williams⁵⁸ and Smith⁵⁹ are of the view that the jury must acquit. In Shelton,⁶⁰ however, Lawton LJ commented:

 

 

This solution, with respect, does not seem adequate. The problem is not one of disagreement among different members of the jury; it is that, for any member of the jury, the facts are not sufficiently clear to decide the issue one way or the other. All that a member of a jury can be sure of is that the accused is guilty of one of the two offences.

One solution would be for the jury to convict of the offence with the lesser maximum sentence, which is larceny. This approach is favoured in Western Australia. In our view, it would be quite inappropriate in view of the fact that the maximum sentence bears no relationship to the actual sentence in the everyday case. In any event, receiving is generally regarded by the community (including the criminal community) as a less serious offence than larceny.

138.

Acquittal would clearly be a most unsatisfactory result, where the jury are satisfied that the accused is guilty of either receiving or larceny, the only uncertainty being as to the actual offence committed. After much consideration, we suggest that the best way of dealing with this is to incorporate into the definition of “unlawfully obtained” the words “either by the accused himself or by another person”.

A duty on the part of dealers and collectors to make reasonable inquiry as to the legal right of the transferor to dispose of the goods

139.

Having considered the general question of liability for receiving, we now must consider whether it would be desirable to introduce a provision imposing a duty, under criminal sanction, on dealers and collectors of personal property to make reasonable inquiry that the person selling, delivering or otherwise disposing of the goods has a legal right to do so.

140.

There are a number of arguments, on principle and from a pragmatic standpoint, in favour of taking this step. First, it seems appropriate that those who choose to engage in a business enterprise involving the reception of property should take reasonable steps to protect society and its individual members from the risk of theft. Undoubtedly, a significant encouragement for theft is a “no questions asked” policy on the part of dealers and collectors. From a pragmatic standpoint, there is also much to be said for introducing an offence on these lines. Depending on how precisely the offence was drafted, it could offer a useful way of catching the person who acquires goods on a “no questions asked” basis who argues that it simply had not occurred to him to enquire about the goods' provenance. His failure to make reasonable enquiry would suffice to render his conduct criminal.⁶¹

 

 

141.

There are, however, serious arguments against this proposal. First, it would of course be contrary to the subjective approach generally favoured by our criminal law.

142.

A second argument is based on considerations of practical convenience. A duty of reasonable inquiry, under pain of criminal prosecution, would lead to an enormous increase in paperwork and delay, with possibly little improvement in relation to theft since thieves would simply look to new (or indeed old) markets among receivers who are neither collectors nor suppliers. Moreover, if the proposed new ground of liablity were to have real “teeth”, the effect might be to impose an undue restriction on the movement of goods.⁶²

We consider that the balance of the argument is against introducing such a provision.

A special offence for those engaged in business abusing their position of trust

143.

We must now consider whether it would be desirable to introduce a separate new provision over and above specific provisions dealing with receiving. It may be argued that there are those who undertake particular moral responsibilities in business, especially businesses which, if abused, may facilitate theft by offering an attractive route for redistributing stolen goods into the legitimate marketplace. If persons engaged in these businesses abuse their position by disposing of goods which they know are stolen they may be considered to be guilty not merely of the offence of handling as we have proposed but also of the separate wrong of abuse of what might be called “professional trust” in misusing their business vocations by disposing of stolen goods, thus received, through these channels.

There is undoubtedly evidence that persons involved in legitimate businesses are among those guilty of receiving stolen property. Stuart Henry states that:

While there may be a great deal to be said for establishing an offence on the lines suggested above, we are doubtful as to whether, in

 

 

practice, it would work satisfactorily. It could well raise a problem of double jeopardy. Problems of duplication in trials and sentencing would be likely to occur. We do not accordingly recommend the establishment of this offence.

Documentary Records and Computer Print-outs

144.

In 1980 in the Commission's Working Paper on Hearsay, (Working Paper No. 9–1980) proposals were made which would have had the effect of making out-of-court statements admissible in all cases where the maker of the statement testified or was not available. While recommending that these proposals should be adopted in civil proceedings, the Commission deferred making a similar recommendation in relation to criminal proceedings until such time as observations had been received from interested persons. Unfortunately, despite repeated appeals, no such observations have been received and the Commission has not felt it was possible to proceed to a Final Report until such observations were received. However, it is now represented that the amendment of the law relating to the admissibility of business and administrative records is required as a matter of urgency. In these circumstances the Commission recommends the immediate adoption of the limited provision suggested in its Working Paper as appropriate in a context where the existing rule against hearsay was retained. Under this provision records possessed of a guarantee of trustworthiness comparable to direct oral evidence or admissible hearsay would be admissible. In its Report on a Criminal Evidence Bill the Commission proposes to consider whether a more far-reaching reform would be desirable – for example, a provision along the lines of sections 68 to 72 of the British Police and Criminal Evidence Act 1984. The Commission reiterates its appeal to interested parties to submit their observations.

The Proceeds of Theft

145.

We now must consider whether the definition of “property“ contained in section 46(1) of the Larceny Act 1916⁶⁶ needs to be amended. It is clear that some notion of “proceeds” of theft must be included; otherwise, the law “would provide a rogue's charter for professional fences”⁶⁷; receivers could avoid liability for the offence of receiving money,⁶⁸ for example, merely by asking the thief to get the money changed into smaller (or larger) denominations.⁶⁹ The idea of permitting such a technical defence to be reintroduced into the law is obviously unappealing.

At the same time, section 46(1) can be criticised for its unduly broad scope. It designates as “stolen” goods which are acquired by innocent purchasers, as well as the proceeds of each new transaction. It is possible, though far from likely, that the courts could interpret the words “whether immediately or otherwise” as implying some limitation in the number of transactions or period of time that may elapse after the original theft. On this interpretation, “otherwise” should mean “different from immediately to an extent to be specified by the Court”, rather than “every other possible case”. However, the word “otherwise”, on ordinary interpretation, would not seem to contain any such limitation.

 

 

Whatever conceptual objections may be raised about the scope of section 46(1), the fact is that it appears to have caused no difficulties in practice. Nevertheless, there seems to us to be merit in introducing some limits on the scope of the concept of “proceeds” of theft, if this can be done without causing new difficulties.

146.

It is useful in this regard to look at the experience in England. Section 24 (2) of the Theft Act 1968 provides that, for the purposes of the provisions of the Act relating to goods which have been stolen,

The effect of section 24(2) is that “the goods which the accused is charged with handling must, at the time of the handling or at some previous time:

The section is undoubtedly complex especially in its implications in relation to disposition by the thief or handler of stolen money or cheques through his bank account.⁷² No difficulty arises where the account consists only of stolen money or cheques;⁷³ but where it is fed by both lawful and stolen money or cheques and the thief or handler draws money from his account, “the prosecution must be able to prove, by reference to the history of the account, that the cash was capable of representing stolen goods. This may perhaps be possible even if honest money in the account could alone cover the withdrawal; but it would need to be shown that [the thief or handler] intended to withdraw stolen rather and honest money.”⁷⁴

Where instead of withdrawing money, the thief or handler writes a cheque, drawn on his account and intended to enable another party to obtain a transfer of part or all of the credit balance, or of cash, the question arises as to whether the cheque is “stolen goods”⁷⁵ In Attorney-General's Reference (No. 4 of 1979),⁷⁶ it was not necesary to decide this point. However, Lord Lane CJ (speaking for the Court) said:

 

 

The commentators are not so sure. Smith states:

And Griew states:

147.

Having mentioned the complexities of the issue, we must acknowledge that any attempt to provide a cut-off point as to proceeds inevitably will prove difficult and to some extent arbitrary in its potential effect, since the wrongfulness of the receiver's conduct does not depend on how the property or its proceeds may be “laundered” before reaching him. We are satisfied that a provision drafted on the lines of section 24(2) would be a useful reform.⁸²

Section 43(1) of the Larceny Act 1916

148.

We have already referred to the doubts as to the constitutional validity of this section. In the light of these misgivings, we do not recommend the expansion of the section, although that has been suggested to us. Indeed, as the section is apparently rarely relied on by prosecution, we think that no useful purpose is served by its retention in our law. Accordingly we recommend that it be repealed.

Property stolen outside the State

149.

We have seen⁸³ how in two decisions⁸⁴ the Supreme Court has interpreted section 33(4), in the light of section 3 of the Adaptation of Enactments Act 1922, as embracing cases where the goods were stolen in Northern Ireland but not where they were stolen in Britain. This is clearly anomalous and was an unintended result of section 3.

 

 

We therefore recommend that in the proposed new statutory provision, the reference should extend to property stolen or obtained “outside the State”. This would catch property stolen or obtained in Britain as well as property stolen or obtained in Northern Ireland.

Procedure

150.

Receiving is a scheduled offence under the Criminal Justice Act 1951 as amended by the Criminal Procedure Act 1967. A District Justice can deal with an offence summarily if he considers it a minor offence fit to be so tried and if the accused agrees to be tried summarily. If the property involved exceeds £200 in value, the Director of Public Prosecutions must, in addition, consent to summary disposal. At all times, the accused has an absolute right to trial by jury. The £200 ceiling was fixed 20 years ago and is obviously out of date. On balance, we consider that the new offence of handling, as well as the present offence of larceny, should be indictable offences, but should be prosecutable on indictment only at the election of the prosecution. Notwithstanding a prosecution election for summary disposal, a District Justice has a duty to return the accused for trial on indictment if he considers the offence not to be a minor offence.⁸⁵

151.

The maximum penalty for receiving is 14 years imprisonment after conviction on indictment. The fact that such a heavy penalty was provided reflects the seriousness of the offence. By way of comparison, “ordinary” burglary carries 14 years, robbery and aggravated burglary carry life. Larceny only carries 5 years. We are of opinion that the disparity between the maximum for larceny and receiving is too great. The same sentence should be provided for larceny and handling. Perhaps a period of 10 years would be appropriate. We also consider that, where appropriate, in addition to any penalty imposed, the Court should be able to order payment of compensation by the handler to the victim of the primary offence whether or not that offence was committed by the handler himself.

Powers of Arrest

152.

We consider that the powers of arrest which apply to the offence of receiving under present law should continue to apply to the new offence of handling which we have proposed. We see no policy considerations that would suggest any change in the law on this matter.

Form of Indictment

153.

In relation to the actus reus, we have recommended in paragraph 108 that “handling” should encompass by definition all modes of committing the actus reus. We recommend that this be reflected in the indictment for the offence which should be framed as a single count rather than as alternative counts for different species of handling.

 

 

In the passage from his indictment in Hanlon v Fleming quoted in paragraph 37, Henchy J refers to the fact that the use of the words “knowing or believing the same to be stolen goods” in a conviction might be held bad for duplicity. Rule 5 of the Rules in the First Schedule to the Criminal Justice (Administration) Act, 1924 provides, inter alia, that where an enactment constituting an offence states the offence to be the doing of an act “with any one of any different intentions” or “states any part of the offence in the alternative”, such “... intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the court charging of the offence”.

For the avoidance of any doubt, which may arise in relation to convictions, we recommend that the legislation should provide specifically for the use of the formula “knowing or being reckless as to whether etc” in all complaints, indictments, convictions or other orders or proceedings. Similarly, legislation should provide that it is not necessary in any proceeding to specify the particular mode of unlawful obtaining alleged. As we have pointed out above, the accused may only be aware in a general sense of the unlawful provenance of the goods.

Legislation could prescribe a form of charge and indictment for handling and amend Item 9 in the appendix to the Rules in the First Schedule to the 1924 Act already referred to.

 

 

FOOTNOTES

1 [1951] 2 All E.R. 645. See supra, para. 20.   2 Hanlon v Fleming [1981] I.R. 489, at 499–500.   3 The State (Furlong) v Kelly, [1971] I.R. 132.   4 Cf. supra, paras. 69–70.   5 JC Smith, The Law of Theft, para. 408 (5th ed., 1984).   6 [1981] 2 All E.R. 647, at 649 (C.A., Crim. Div.), rev'd [1983] 1 A.C. 109 (H.L., 1982).   7 Spencer, The Mishandling of Handling, [1981] Crim. L. Rev. 682, at 683–4.   8 G Williams, Textbook of Criminal Law, 865, fn. 5.   9 Id. 869 fn. 2.   10 We use the term “reception” here to describe the actus reus of receiving under existing law.   11 See Blakey & Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich. L. Rev. 1511, at 1589–1592 (1976).   12 We need not here consider what should be the precise scope of the concept of “stolen goods”. For present purposes, it is not of great importance save to this extent: it seems clear that an offence of receiving which had no regard for the question of the actuality of reasonableness of the belief of the accused as to whether the goods were stolen would have to be based on a prior actual theft (or other dishonest appropriation) of goods.   13 [1981] I.R. 233, at 257.   14 Of course, the offence of receiving indicated in this option would be a different, less serious, offence than that under section 33 of the Larceny Act 1916. Nevertheless, it is possible that a new offence drafted on these lines would still carry with it, for some time at least, the stigma associated with the present offence under section 33.   15 p. 190 (2nd ed., 1952).   16 Hall has been described as a “determined apologist” for the mens rea concept: Elliot, Theft and Related Problems – England, Australia and the U.S.A. Compared, 26 Int. & Comp. L.Q. 110, at 137 (1977).   17 Cf., e.g. Pa. St. Ann. tit. 18, section 4817 (1961) (“... knowing, or having reasonable cause to know, the same to have been stolen ...”).   18 Op cit., paras. 35–38. The Criminal Law and Penal Methods Reform Committee of South Australia in its Fourth Report, The Substantive Criminal Law, Published in 1977, recommended (paras. 16.1–16.2) that recklessness should be a basis of criminal liability as an alternative to that of knowledge or belief.   19 The Model Penal Code, section 202(2)(c) defines recklessness as follows:   “A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.”   20 [1977] I.R. 360.   21 [1957] 2 Q.B. 396.   22 [1981] 1 All E.R. 961.   23 Id., at 966.   24 Just What Is Recklessness?. [1981] D.U.L.J. 29, at 37.   25 Ms McAleese found the Murray decision unhelpful: cf. id., at 34–37.   26 L.C.W.P. No. 31, pp. 30–31 (1970).   27 [1981] D.U.L.J., at 31.   28 Op cit., at 1561.   29 [1977] I.R. 360, at 403. Cf. the later draft of the section, cited supra, fn. 19.   30 There are of course other possible cumulative tests, including that of recklessness in circumstances where a reasonable person would have suspected that the goods were stolen.   31 Supra, para. 71.   32 Williams. Handling. Theft and the Purchaser Who Takes a Chance, [1985] Crim. L. Rev. 432, at 434–435. In a supporting footnote, Dr Williams adopts a formulation suggested by Dr A T H Smith, as follows:   “The law should not incriminate honest dealers who make no enquiry whether the goods they buy are stolen, even though they suspect that the goods might be stolen. Such persons have no means of ascertaining the truth, nor the time to do so; or they may be able to do so only at the expense of causing offence or annoyance to the persons with whom they deal. To avoid doing   THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=112   32   (cont'd) that, their only safe course may be not to buy at all. But the public interest in free trade outweighs the public interest in ensuring that no trade in stolen goods ever occurs, and people should be free to buy unless they know that the goods are stolen.”   33 Cf. supra, para. 71.   34 Op. cit., at 682.   35 Griew, Consistency, Communication and Codification, in Reshaping the Criminal Law, 57, at 70 (Glazebrook ed., 1978).   36 [1966] I.R. 162.   37 Id., at 168.   38 Id.   39 Para. 140.   40 Cross on Evidence, (6th ed) p. 132 (footnote omitted).   41 Blakey & Goldsmith, op. cit., at 1561.   42 8th Report, para. 128.   43 Op. cit., para. 124.   44 Smith & Hogan, Criminal Law (4th Ed) p. 656 fn. 2.   45 Id. p. 6, 56–7.   46 Supra, para. 27.   47 [1975] AC 476.   48 62 Cr. App. R. 220 (1975).   49 [1978] A.C. 979.   50 Cf. Eagleton, 6 Cox C.C. 559, at 571 (1855), Davey v Lee, [1968] 1 Q.B. 366, Stonehouse [1978] A.C. 55, Richmond, C.C.A. No. 28 of 1935 (Frewen, vol. I, p. 28), Thornton, [1952] I.R. 91.   51 Para. 2.96 of Report No. 102.   52 Op. cit., 406.   53 Cf. Hogan, The Criminal Attempts Act and Attempting the Impossible, [1984] Crim. L. Rev. 584, at 585:   “The right and proper way (perhaps I should say one right and proper way for there may be others) to deal with the would-be handler of non-stolen goods is simply to amend section 22 [of the Theft Act 1968] to make it an offence to handle goods (with no qualification that they be stolen), knowing or believing them to be stolen and that offence could be attempted.” See also Anon., Property Theft Enforcement and the Criminal Secondary Purchaser of Stolen Goods, 89 Yale L.J. 1225, at 1238 (1980).   54 Supra, para. 39. See Nieser, [1958] 3 All E.R. 662 (C.C.A.).   55 Costello, [1984] I.R. 436 (Sup. Ct.).   56 O'Leary v Cunningham. Sup. Ct., 28 July 1980 (145A–1979).   57 This defence was unsuccessfully raised by the defendant in the recent case of Callaghan, in the Special Criminal Court earlier this year.   58 G Williams, Testbook of Criminal Law, (2nd ed., 1983).   59 Smith, Commentary on Devail, [1984] Crim. L. Rev. 428, at 429.   60 83 C.A.R. 379 at 383 (C.A., 1986).   61 Cf. the Prison Committee of the Association of Grand Jurors of New York County, Criminal Receivers in the United States. 52–53 (1928).   62 Cf. Weaver & Smith, Note: Receivers of Stolen Property in Pennsylvania, 12 U. Pittsburg L. Rev. 269, at 274 (1951):   “Since personalty is involved, dealers in second-hand goods can not be required to insist upon proof of ownership of each article accepted without suffering detrimental business effects”. Cf. Williams, Handling, Theft and the Purchaser Who Takes a Chance, [1985] Crim. L.R 432, at 434–435) (discussing position in relation to handling).   63 United States Senate Select Committee on Small Business 93rd Congress 2nd Session, Criminal Redistribution (Fencing) Systems Part 3 (1974 U.S. Government Printing Office, Washington), 527, see also the excellent analysis by Marilyn Walsh, in The Fence, ch. 4 (1977): and cf. J Hall, Theft, Law and Society. 157 (2nd ed., 1952): “[A] large number of receivers are engaged in legitimate businesses at the same time [as] they are carrying on an illegal traffic in stolen goods. Their legimate trade masks the illegitimate”.   64 U.S. Select Committee, Criminal Redistribution (Fencing) Systems Part 1. op. cit., p. 4.   65 Henry, On the Fence, 4 Br. J. of L. & Soc. 124, at 132–133 (1977).   66 Cf. supra, para. 18.   67 C.R. Williams & M.S. Weinberg, Property Offences, 390 (1986).

 

 

68 Cf. Walkley, 4 C. & P. 132,172 E.R. 640 (1829), Richards, 28 Q.J.P.R. 88 (Sup. Ct., Brisbane, 1934), and Lucinsky, [1935] N.Z.L.R. 575 (C.A.).   69 Cf. J C Smith, The Law of Theft, para. 392 (5th ed., 1984).   70 Section 24 (3) must be read in conjunction with section 24 (2), which provides as follows:   “But no goods shall be regarded as having continued to be stolen goods after they have been restored to the person from whom they were stolen or to other lawful possession or custody, or after that person and any other person claiming through him have otherwise ceased as regards those goods to have any right to restitution in respect of the theft.”   71 Criminal Law Revision Committee's Eighth Report, para. 138.   72 See Griew, The Theft Acts 1968 and 1978, para. 13–06 (5th ed., 1986), J C Smith, The Law of Theft. para. 395 (5th ed., 1984), Smith, Commentary to Attorney-General's Reference (No. 4 of 1979), [1981] Crim. L. Rev. 52.   73 Cf. Griew, op. cit., para. 13–06, Attorney-General's Reference (No. 4 of 1979), 71 C.A.R. 341, at 348, [1981] 1 All E.R. 1193, at 1195 (C.A. Cr. Div., 1980).   74 Griew, op. cit., para. 13–06. In Attorney-General's Reference (No. 4 of 1979), 71 C.A.R. 341, [1981] 1 All E.R. 1193, at 1195, Lord Lane C J (for the Court) said:   “The difficulties arise for the prosecution where, as in the present case, the stolen cheques are paid into a mixed account containing sums honestly obtained. In our opinion the difficulties are of proof and not of principle. The mere fact that stolen cheques have been paid into a mixed account will often render more difficult proof that at least part of what was received by an accused from that account represented the stolen goods in the hands of the thief as being the proceeds of the goods stolen. It does not preclude such proof. In some circumstances proof may be simple. For example, a particular account, into which it is proved that stolen cheques were paid, may have been little used with few cheques drawn on it. It might readily be demonstrated that the sum paid to the accused was in excess of that part of the balance which could possibly represent the proceeds of honest cheques. In such circumstances the accused would be shown to have received stolen goods with s. 24 (2)(a).”   75 Cf. Smith, op. cit., para. 395.   76 Supra.   77 [1981] 1 All E.R., at 1198.   78 Citing Schroeder v Central Bank of London Ltd., 34 L.T. 735 (1876).   79 Smith, op. cit., para. 395.   80 Citing section 24 (2)(a).   81 Griew, op. cit., para. 13–06. (Further modifications made in above quotation to those made, with respect to section 24 (2)(a), by Griew).   82 C R Williams & M S Weinberg. Property Offences, 391 (1986), referring to section 90 (2) of Victoria's Crimes Act 1958 (which is identical to section 24 (2) of the English Theft Act 1968), comment that:   “[a]lthough ... drafted in a cumbersome fashion, the compromise it achieves is not unreasonable. Where the property the accused is charged with handling has been at some previous time in the hands of the thief or a handler, and represents the proceeds of the original stolen goods, the connection between those goods and the goods the accused has dealt with is sufficiently clearly defined to warrant a conviction for handling. The accused must be shown to have known of the source of what was being dealt with at the time of the alleged handling and this may be difficult to establish where the chain of transactions is a lengthy one.”   83 Supra, paras. 31–32.   84 The People (Attorney General) v Ruttledge, [1978] I.R. 376 (Sup. Ct., 1947), The State (Gilsenan) v McMorrow. [1978] I.R. 360 (Sup. Ct.).   85 See the judgment of Henchy J in The State (McEvitt) v District Justice Delap. [1981] I.R. 125.

 

 

CHAPTER 5: SUMMARY OF RECOMMENDATIONS

1.

The basis of criminal liability should extend beyond that of “receiving” as defined in the law at present by the creation of a new offence of “handling” stolen goods as provided for in the English Theft Act 1968, subject to certain modifications: paras. 107–108.

2.

“Handling” should be defined as receiving property or having it in one's possession or under one's control or arranging to have it in one's possession or under one's control or arranging (or assisting in) its retention, removal or disposal by another person: para. 108.

3.

The test of liability in the new offence should depend on whether the defendant knew or was reckless as to whether the goods were stolen: para. 130.

4.

“Recklessness” should be defined so that a person acts recklessly if he consciously disregards a substantial and unjustiable risk that the goods were unlawfully obtained. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances to him, its disregard involves culpability of high degree: para. 130.

5.

The legislation should provide, for the avoidance of doubt, that the possession of unlawfully obtained property where no explanation is given (or no explanation which the court or jury think is reasonably possible) is evidence upon which the court or jury may conclude that the accused handled the property knowing it to be unlawfully obtained or reckless as to whether it was unlawfully obtained, if satisfied beyond reasonable doubt that such is the case: para. 130.

6.

In a prosecution for attempted handling, the defendant may be convicted even though the facts are such that the commission of the offence of handling is impossible if, on the facts as the defendant

 

 

believed them to be, he would have been guilty of attempted handling: para. 133.

7.

The legislation should provide that the offence of handling would be committed in respect of goods unlawfully obtained, and it should not be necessary, in a charge or indictment for the offence, to specify how the goods were unlawfully obtained. “Unlawfully obtained” could be defined as “obtained in circumstances amounting to an offence (including any breach of Section 186 of the Customs Consolidation Act 1876).” The definition should be extended to cover cases where the goods were obtained lawfully and were subsequently criminally misappropriated: para. 134.

8.

The offence of handling stolen goods should be committed where the goods are unlawfully obtained either by the accused himself or by another person, so as to ensure that, in cases where the court or jury is uncertain as to whether to convict the accused of larceny or handling, a conviction is nonetheless recorded: para. 138.

9.

The law as to the proof of business or administrative records should be amended in accordance with the recommendations to that effect contained in the Rule Against Hearsay (Law Reform Commission Working Paper No. 9–1980 at pp. 205/206), so as to deal with the possible difficulty created by the decision in Myers v Directors of Public Prosecutions, [1965] A.C. 1001: para. 144.

10.

For the purposes of the law of handling stolen goods, the definition of the proceeds of goods unlawfully obtained should be clarified along the lines suggested by s. 24(2) of the English Theft Act 1968: para. 147.

11.

Section 43(1) of the Larceny Act 1916 should be repealed: para. 148.

12.

References to goods stolen or unlawfully obtained should extend to goods stolen or unlawfully obtained outside the State so as to ensure that property stolen or obtained in Britain is captured as well as property stolen or unlawfully obtained in Northern Ireland: para. 149.

13.

The new offence of handling, as well as the offence of larceny, should be indictable offences, but should be prosecutable on indictment only at the election of the prosecution: para. 150.

14.

The same sentence should be provided for larceny and handling. Where appropriate, in addition to any penalty imposed, the Court should be able to order payment of compensation by the handler whether or not that offence was committed by the handler himself: para. 151.

15.

The powers of arrest which apply to the offence of receiving under present law should continue to apply to the new offence of handling: para. 152.

 

 

16.

The indictment for handling should not have to specify the particular species of handling alleged: para. 153.

GENERAL SCHEME OF A BILL TO PROVIDE FOR AMENDMENTS OF THE LAW IN RELATION TO THE RECEIVING OF STOLEN PROPERTY AND OTHER MATTERS CONNECTED THEREWITH

1.

Provide that the Act may be cited as the Criminal Justice Act 1988.

2.

Provide:

3.

Provide that, for the purposes of s. 2(a), a person handles property if he receives it or has it in his possession or under his control or arranges to have it in his possession or under his control or arranges (or assists in) its retention, removal or disposal by another person.

4.

Provide, where appropriate, and in addition to any penalty imposed, for payment of compensation by the handler to the victim of the primary offence whether or not that offence was committed by the handler himself.

5.

Provide that property is unlawfully obtained if it has been obtained by the accused or another person inside or outside the State in circumstances amounting to an offence within the State.

6.

Provide that a person is reckless within the meaning of s. 3 if:

 

 

7.

Provide:

8.

Provide that the penalty for larceny shall be the same as that for handling.

9.

Provide that a person charged with or indicted for larceny may be found guilty of handling.

10.

Provide that references to goods unlawfully obtained shall include, in addition to the goods originally unlawfully obtained and to parts of them (whether in their original state or not):

11.

Provide that, for the purpose of an attempt to commit handling, the facts shall be taken to be as the defendant believed them to be.

12.

Provide that, for the avoidance of doubt, the possession of unlawfully obtained property where no explanation is given (or no explanation which the court or jury think is reasonably possible) is evidence upon which the court or jury may conclude that the accused handled the property knowing it to be unlawfully obtained or reckless as to whether it was unlawfully obtained, if satisfied beyond reasonable doubt that such is the case.

13.

14.

Provide for repeals and amendments to the Larceny Act, 1916, the Criminal Justice Act, 1951 and the Criminal Procedure Act, 1967.

NOTES ON THE SCHEME

2.

This alters the law by creating a new offence of handling unlawfully obtained property to replace the existing offence of receiving stolen property and prescribes the maximum penalties for the new offence.

3.

This provides for a definition of “handling” which is a modified form of the definition of the similarly entitled offence in the English Theft Act 1968.

 

 

5.

This provides that the new offence will be committed whether the property has been unlawfully obtained inside or outside the State and remedies the possible defect in the law which came to light in the People (Attorney General) v Rutledge and The State (Gilsenan) v McMorrow.

6.

This provides a definition of “recklessness” for the purpose of s. 2 which is essentially subjective, but which allows certain objective factors to be taken into account, along the lines suggested by the United States Model Penal Code.

7.

This provides for greater simplicity in the drafting of charges, indictments etc. in respect of handling and is also intended to minimise the risk of such charges or indictments being found bad for duplicity in circumstances where the offence is clearly charged.

10.

This alters the law as contained in s. 46 (1) of the Larceny Act 1916 by providing a more precisely drafted concept of the receiving of “proceeds” of larceny along the lines suggested by s. 24(2) of the English Theft Act 1968.

11.

This alters the law, in the context of handling, on the lines suggested by s. 1 of the English Criminal Attempts Act 1981.

12.

This clarifies the position, for the avoidance of doubt, in relation to cases where a defendant fails to give any, or a reasonably possible, explanation as to unlawfully obtained property in his possession.

13.

This provides for the implementation in a modified form (confined to criminal proceedings) of the recommendations contained in our Working Paper on The Rule Against Hearsay as to the proof of business and administrative records and, if implemented, will ensure that the decision of the House of Lords in Myers v Director of Public Prosecutions will no longer be applied in Ireland.