The Gazette 1993

GAZETTE

APRIL . 1993

we have the benefit of the United Kingdom experiences over the past twenty-five years. Undoubtedly, one of the reasons for all this difficulty is that, historically, larceny was seen as a crime against possession rather than ownership. This particular perspective then led to the creation of such special offences as larceny by a bailee and fraudulent conversion - simple larceny could not cover such activities as the dishonest person was actually in possession of the goods. Furthermore, it led to the distinction between such crimes as larceny by a trick and obtaining by false pretences. The intricate differences between these various crimes, though beloved by legal examiners, caused great difficulties in practice and many dishonest persons walked free because they were charged under an inappropriate section. What plainly is needed is a simple piece of legislation to make dishonesty illegal but, proclaiming what is needed is simpler than drafting such a statute. Our Law Reform Commissioners make numerous recommendations and it is refreshing to note that they do not slavishly follow the United Kingdom model but rather attempt to learn by its mistakes. All in all they make seventy recommendations. The main recommendations involve the creation of an offence of "dishonest appropriation" with the word dishonest being defined in terms of the absence of a claim of right. The United Kingdom Theft Act does not define dishonesty but rather lists out instances of what it considers "honest appropriation". Secondly, it will no longer be necessary for an accused person to have an intention to permanently deprive an owner of the property. Thirdly, it advocates a catch-all offence of dishonesty to cover cases not caught by other crimes. This new offence would have a maximum sentence of five years, and is defined as dishonestly causing another to suffer financial prejudice or dishonestly making a gain for oneself.

controversial, may turn out to be the most important one. To date the law seems to be unable or unwilling to deal with some of the most serious of all forms of dishonesty - insider trading, use of insider information and dishonest personal profit-making by persons who manage State or private companies. The law must be seen to be impartial and it is difficult to explain to a jailed shop- lifter why certain well publicised cases of what appear to be blatant fraud are not prosecuted. On the other hand I often wonder if the will is there to prosecute this type of white collar crime. We are told, for instance, that a solicitor or auctioneer who converts money from his client account to his office account cannot be charged as it is impossible to say which of his particular clients he has stolen from. This Report points out that the English authorities had no difficulty in succeeding in such prosecutions under the Larceny Act, 1916. The proposed new crime of dishonesty will, however, obviate procedural difficulties, but I wonder how we are going to deal, for example, with the currency speculators who recently made huge profits at the expense of this country as a whole. Did this speculation amount to dishonesty? At the end of their report the Commission make several recommendations connected with court procedure and Garda powers of search and arrest. These recommendations may be more than just an afterthought attached onto a well researched report, but I feel that the whole question of increasing Garda powers and delimiting the right to silence is sufficiently important in itself to be dealt with in a specific report. A further consideration of these recommendations is necessary. Finally, I must criticise the recommendations of the Committee that the choice of venue of trial be given only to the Director of Public Prosecutions (subject to the overriding jurisdiction of the District Judge) and taken away from the accused person. This recommendation has to be seen in

the context of a definite policy decision to delimit the accused's right to trial by jury. The most obvious example of this policy occurs in relation to alleged assault and obstruction of Gardai and resisting arrest. The prosecution authorities, presumably worried by the large number of acquittals before juries in this type of case, instructed the Gardai not to proceed by way of Section 38 of the Offences Against the Person Action, 1861 (giving the accused a right to elect for indictment) but to charge such persons with different summary offences. Recent legislation such as the Drugs Act and Criminal Damage Act continues this trend. Experience shows that a judge may be more likely to accept Garda evidence of identification or of a surveillance exercise than would a jury. There is no doubt that very serious cases of unlawful taking of motorcars and supply of heroin are dealt with in the District Court even when accused persons would have been anxious to have gone before a jury. I would urge the reversal of this trend and the maintenance of the accused's right of jury trial in dishonesty cases. Apart from these criticisms, the Law Reform Commission has again done an admirable job in producing this Report. The matter is now in the hands of the politicians and we can only hope that we will have a new statute on the books before the 80th anniversary of the Larceny Act! Michael Staines Legal Aspects of Commercial Sea-Fishing in the EEC ICEL, 1992, 84pp. £12.50 (members) £14.50 (non-members) páperback. This is a publication of some of the papers delivered at a seminar, organised jointly by the Irish Fish Producers Organisation (the IFPO) and the Irish Centre for European Law, Trinity College, Dublin. The joint promotion, was the brain child of Mark Lochrin, Chief Executive of the IFPO.

This last recommendation, though

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