The Gazette 1989

GAZETTE

DECEMBER 1989

haps the term 'dealing' with stolen

property would be preferable to

handling stolen property. It would

certainly be more consistent with >

the definition of handling in the

1989 legislation.

Even though the concept of pos-

session is no longer a central

feature of the Actus Reus of hand-

ling stolen property the concept is

still expressly retained in the Bill.

Section 7(3) of the Bill provides

that property ceases to be regarded

as stolen property when it has been

restored to the owner or to other

lawful possession or custody. The

difficulties encountered by the

courts in that line of cases where

property came back into possess-

ion of the lawful owner or his agent

or other lawful authority were very

great indeed. They have given rise

to very sharp divisions of opinion

amongst the courts. The early case

R. v. Vi/iensky

[18921 20B 597

can be contrasted wi th the case of

R. v. King

[1938] 2AIIER 662.

is clear that in the latter case the

court took a very different view of

the law than the court in the earlier

decision. On the other hand the

latter decision has been harshly

criticised by various commentators.

Section 7 sub-section 3 does not

take a positiion on the matter.

There is no hint to be found in the

wording of the sub-section of

which view of the law was pre-

ferred by the Irish parliamentary

draftsman. This matter will have to

be resolved by the courts at some

future stage.

"The new mens rea i.e.

knowing or believing

property to be stolen is

a repetition of Section

22 of the English Theft

Act 1968."

(2)

The 'Mens Rea'

As stated already, a person could

not be convicted for receiving

under the 1916 legislation unless

the State could establish that he

actually knew the property was

stolen. The new legislation states

"a person who handles stolen

property knowing or believing it

to have been stolen property

shall be guilty . . . "

1 5

The legislation goes on to state:-

"Believing property to be stolen

property includes thinking that

such property was probably

stolen property".

The new mens rea i.e. knowing or

believing property to be stolen is a

repetition of Section 22 of the

English Theft Act 1968.

How-

ever, the definition of believing

property to be stolen as thinking

that such property was probably

stolen is new. It is easy to trace its

origin however. In the United

Kingdom in the case of

R. v. Moys

79Cr App R 72 (CA, 1984) the

accused was charged with hand-

ling stolen property under Section

22 of the Theft Act 1968. The trial

judge told the jury that strong

suspicion coupled with a deliberate

shutting of the eyes was not merely

an alternative to belief under

Section 22 but was equivalent to

belief under that Section. The

Court of Appeal held that this was

not a correct charge to the jury.

Lord Lane CJ observed

"the question is a subjective one

and it must be proved that the

defendant was aware of the theft

or that he believed the goods to

be stolen. Suspicion that they were

stolen, even coupled with the fact

that he shut his eyes in the circum-

stances, is not enough, although

those matters may be taken into

account by a jury when deciding

whether or not the necessary

knowledge or belief existed").

However, in the subsequent

Court of Appeal case

R. v. Harris

Cr App R 75 (CA1986), Lawton L.J.

referring to the passage from the

judgement of Lord Lane C. J. in

v. Moys

remarked

" i t was submitted . . . on behalf

of the appellant that some such

direction las that indicated by

Lord Lane C. J.] should be given

in every case where the issue is

whether the defendant believed

that the goods were stolen. We

doubt whether this is so. We

have to look at all the circum-

stances of every case. It is for

the judge to decide from the feel

of the case which is before him

whether the jury require further

assistance in the meaning of

belief".

" . . . the Irish

Parliamentary draftsman

decided to elaborate on

the meaning of the

word "believe" . . . "

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It would seem that the Irish

Parliamentary draftsman decided to

elaborate on the meaning of the

word "believe" in this context in

order to resolve these difficulties

and to make it quite clear that the

term 'belief' would include sus-

picion. That is certainly not an

approach that recommended itself

to the Law Reform Commission

when they considered the subject.

The Commission referring to the

use of the word 'belief' in the 1984

Act (Section 32) state that the

affect of using this word in the

1968 Act was "unfortunate".

The Commission went on to state

"there is an inherent problem

with using the word belief in this

context which the English courts

were correct in sensing. Belief

admits of degrees of commit-

ment ranging from certitude to

suspicion. There is little advan-

tage in a legislative definition

which leaves the question of the

accused's mens rea in such an

imprecise state".

"The new legislation

'Mens Rea' created by

the 1989 Larceny Bill

gives rise to a great

deal of uncertainty and

confusion."

At already stated, the further

elaboration of the definition of

"be l i e f" by the Irish draftsman is

probably designed to get around

this type of difficulty and bring

suspicion within the ambit of belief.

The Law Reform Commission

recommended that the Mens Rea

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