The Gazette 1989

GAZETTE

DECEMBER 1989

of the offence of handling should

be actual knowledge or reckless-

ness.

It is submitted that this

approach is far preferable to the

approach adopted in the 1989

Larceny Bill. The concept of reck-

lessness has given rise to its own

difficulites.

However, it is far

preferable to what the Irish drafts-

man has attempted in the 1989

Larceny Bill which represents a well

meaning but fudged and, it is

submitted, inadequate compromise

between Section 22 of the 1968

Theft Act (English) and the recom-

mendation of the Law Reform

Commission. The approach adop-

ted by the Irish draftsman could

prove self defeating. If there is one

thing which has become very

evident from a study of this area of

the law it is that the greater the

complexity the greater the oppor-

tunity an accused person would

have of getting round the law

because of a technicality. The more

precise and simple the legislation is,

then the greater the chance there

will be that an accused person will

not succeed on a technicality. The

1989 legislation as drafted will

increase the difficulties of a trial

judge giving an adequate direction

to a jury. Consequently the danger

of a trial judge's charge to a jury

being quashed as being inadequate

will be considerably increased. The

new legislative "Mens Rea' created

by the 1989 Larceny Bill gives rise

to a great deal of uncertainty and

confusion. It is difficult to know

whether any significance will be

attached to the fact that the

definition of belief is not that

believing property

means

thinking

that the property was probably

stolen but rather that it

includes

thinking that such property was

probably stolen.

It is impossible

to predict the significance of the

use of the word "probably" here.

The only thing that can be pre-

dicted with certainty is that there

will be a great deal of uncertainty

in this area of the law for the

immediate future.

OTHER CHANGES IN THE 1989

BILL

The 1989 Bill incorporates a

number of other changes in the

law. Some of these are very wel-

come. However, some of them are

unwelcome in varying degrees.

"The 1989 legislation

provides a uniform

maximum sentence

A. Sentencing

The 1916 legislation contained

different maximum sentances for

larcenies committed in different

circumstances. These were the

legacy of social concerns of a

bygone era and did not reflect

current reality. For example the

larcency of wills carried a maxi-

mum sentence of penal servitude

for life. The larcency of documents

of title attracted a comparatively

light maximum sentence of five

years penal servitude. The 1989

legislation provides a uniform maxi-

mum sentence of ten years im-

prisonment for all the larceny

offences covered by the 1916 Act

and for embezzlement, fraudulent

conversion, obtaining property by

false pretenses and blackmail.

also provides a maximum sentence

of fourteen years imprisonment for

handling.

Section 2 of the 1989

Bill provides that possession of cer-

tain articles for use in larceny and

other related offences is in itself an

offence.

The maximum penalty

is five years imprisonment on first

conviction and ten years on second

and subsequent convictions. This

introduction of uniformity in maxi-

mum sentances is to be welcomed,

it does not follow the recom-

mendation by the Law Reform

Commission to the effect that the

same sentence should be provided

for larceny and handling.

That is

understandable. The Irish legislat-

ure is obviously concerned to send

a signal that it regards handling or

receiving stolen property as a more

heinous offence than ordinary

larceny.

Space does not permit

me to go into this matter in detail

but it is sufficient to say that there

are strng grounds for this

opinion.

"The Irish legislature is

obviously concerned to

send a signal that it

regards handling or

receiving stolen

property as a more

heinous offence than

ordinary larceny."

The Law Reform Commission

also recommended that the court

would in addition to any penalty

imposed be able to order payment

of compensation by the handler

whether or not the offence was

committed by the handler him-

self.

This recommendatin is not

followed in the 1989 legislation.

That is to be regretted.

B. NEW DEF I N I T I ON OF

STOLEN PROPERTY.

The 1916 Larceny Act punished the

receiving of property which was

either "stolen or obtained in any

way whatsoever under circum-

stances which amounted to a

felony or misdemeanor".

The

1989 Bill does not follow that

definition. It contains a separate

definition of "stolen" property.

That is contained in Section 7 (4)

of the Bill. The Bill treats property

"The 1989 Bill leaves

out some property

wrongfully

obtained . . . "

as stolen property for the purpose

of handling offences whether it

was obtained by larceny, embezzle-

ment, fraudulent conversion, false

pretences or blackmail. It is

submi t t ed t hat basically the

approach adopted in the 1916 Act

is preferable. The 1989 Bill leaves

out some property wrongfully

obtained otherwise than in the

various ways set out in section 7

(4). For example property which

has been the subject of a customs

offence such as smuggling is not

covered.

One slight difficulty

that emerged from the interpreta-

tion of the definition of stolen

property in the 1916 Act is high-

lighted in the case of

DPP -v-

Niesier

(1958) 3AIIER 662. In that

case it was held that where a

person is charged with receiving

property under the 1916 Act under

circumstances which amount to a

misdemeanour the property must

be proved to have been originally

acquired by an offence which

amounted to a misdemeanour. It

was held that the same applied

when a person was charged with

receiving property under circum-

stances which amounted to a

felony.

This problem is now

eliminated by Secion 7 (4) of the

1989 Act. However, that difficulty

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