The Gazette 1989

GAZETTE

DECEMBER 1989 The Larceny Bill 1989 - New Offence of Handling Stolen Property PART I

(1) The 'Actus Reus' of receiving The 1989 Bill replaces the exist- ing offence of receiving stolen property wi th a new offence of handling stolen property. 5 This extends the scope of the offence very widely. Under the terms of the Bill a person handles stolen prop- erty if he "d i shones t l y " 6 either (1) receives the property or (2) under- takes or assists in its retention, removal, disposal or (3) arranges to retain, remove or dispose of or realise the property for the benefit of another person. 7 As already

At present the Irish Law which makes receiving stolen property an offence is contained in Section 33 of the Larceny Act 1916. 1 That provides as follows: "Every person who receives any property knowing the same to have been stolen or obtained in any way whatsoever under cir- cumstances which amount to felony or misdemeanour shall be guilty of an offence . . . . " 2 This provision has been judicially interpreted in a large number of cases over the years. It has given rise to t wo fundamental problems. As a result of these problems it is extremely difficult to secure a conviction for receiving in this country. The first problem is that as can be seen from the definition above, t he accused has to "receive" the property. Receiving is not defined in Section 33. The essence of the concept of receiving however, is that the accused per- son has taken the property either into his possession or under his control. 3 That is the 'Actus Reus' of the crime. The second problem that arises (and again this is obvi- ous from reading section 33), is that, in order to get a conviction the State must prove that the accused actually knew that the property was stolen. Constructive know- ledge or suspicion is not sufficient. Actual knowl edge has to be proved. 4 We shall now examine how the Larceny Bill 1989 4a proceeds to handle each of those problems so as to make it easier to convict: "The 1989 Bill replaces the existing offence of receiving stolen property wi th a new offence of handling stolen property."

questions arose, such as for ex- ample whe t her goods were "received" by the accused, if they were received by a person over whom the accused had control. (See for example the cases of R. v. Wiley (1850) 2 Den 37 and Attorney General -v- Nugent and Byrne (1964) 98 ILTR 139). The concept of possession (and indeed control) proved to be extremely elusive and difficult to establish. These diffi- culties have been swept away by the Larceny Bill 1989, which, as already stated, creates a new offence which no longer requires that the stolen property would come into the possession or even within the control of the accused. A telephone call by the accused or a word by the accused or even arguably a gesture by the accused would be sufficient to constitute the offence of handling under the 1989 legislation. The description of the new offence as "handling" seems to suggest some physical con- tact. 11 It is clear that in order to commit the offence of handling as set out in the 1989 legislation no such physical contact with the stolen property is necessary. Per- LAW SOCIETY ANNUAL CONFERENCE 3-6 May 1990

By Wi l l ie O ' D e a , L LM , Bar r i s t er at Law, Lec t ur er in Law, Un i ve r s i ty of L ime r i ck

stated, the 1916 legislation obliged the State to prove that the property had come into the possession or under the control of the accused. This gave rise to great difficulties in practice. 8 Many of those diffi- culties centred around the extent to which the alleged receiver had to be conscious of the fact that the stolen goods were in his possess- ion or under his control. 9 " . . . the Larceny Bill 1989 . . . creates a new offence which no longer requires that the stolen property would come into the possession or even within the control of the accused." The distinction that the courts evolved between actual and con- structive possession increased rather than reduced the difficulties in this area. 10 Di f f i cu lt legal

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