The Gazette 1989

GAZETTE

DECEMBER 1989

The Larceny Bill 1989 -

New Offence of Handling

Stolen Property

PART I

At present the Irish Law which

makes receiving stolen property an

offence is contained in Section 33

of the Larceny Act 1916.

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 . . . . "

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.

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.

We shall now examine

how the Larceny Bill 1989

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."

(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.

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 "

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.

As already

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.

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.

" . . . 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.

Di f f i cu lt legal

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.

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

HOTEL EUROPE

KILLARNEY

CO. KERRY

421