The Gazette 1989

GAZETTE

DECEMBER 1989

could have been eliminated quite

easily. By and large the approach

adopted in the 1916 Act in this

con t ext is preferable to the

approach adopted in the 1989 Bill..

PROPERTY STOLEN IN THE

UN I TED K I NGDOM.

By a curious anomaly property

stolen in England, Scotland or Wales

was not " s t o l en" property for the

purposes of the offence of re-

ceiving stolen property under the

1916 Act. This arose from a

Supreme Court interpretition of the

Adaptation of Enactments Act

192 2.

This was clearly unsatis-

factory.

It gave rise to the

ridiculous situation that a person

could be charged in the Republic of

Ireland w i t h receiving stolen

property in the Republic of Ireland

if that property was stolen any-

where else in the world except

England, Sco t l and or Wales.

Section 7 (1) of the 1989 Bill

removes that anomaly. This is a

welcome change. The sub-section

states that handling stolen property

will be an offence here if the prop-

erty was acquired in a way which

"amounted to an offence where

and at the time the property was

stolen".

". . . property stolen in

England, Scotland or

Wales was not "stolen"

property for the

purposes of the

offence of receiving

stolen property under

the 1916 Act."

One cannot help wondering how-

ever what the situation will be

where the stealing has ceased to

be an offence where it was stolen

at the time the property was handled

here. It would surely be anomalous

if a person could be convicted in

this country of handling property

which was originally acquired

abroad if the means by which it

was acquired has ceased to be an

offence at the time the property

was handled here.

However, a

literal reading of the 1989 Bill would

seem to give rise to that result.

D. ATTEMPTED RECEIVING

If a person is to be convicted of

handling stolen property then

obviously the property must be

stolen in the first place. But what

if the accused believes the property

is stolen and acts dishonestly and

handles the property (within the

definition of handling in the 1989

" . . . should it not be

possible to charge [the

accused] with a

separate offence of

attempting to handle

stolen property?"

Bill)? The accused in this case

obviously did not succeed in com-

mitting the offence of handling

stolen property, but should it not be

possible to charge him with a

separate offence of attempting to

handle stolen property? This

question came before the House of

Lords in the case of

Haughton -v-

Smith

In that case the House of

Lords held that in circumstances

such as this the accused could not

be found guilty of attempting to

handle stolen property. Apparently

the basis for this decision is that a

person cannot be accused of

a t t emp t i ng the impossible.

That problem was solved in

England by the passage of the

Criminal Appeals Act 1981 which

allowed the accused to be

convicted of attempting to handle

stolen property in such circum-

stances. There is nothing in the

1989 Bill wh i ch corresponds

with the Criminal Appeals Act

1981. It is difficult to know under

what circumstances a person

could be conv i c t ed in this

jurisdiction of attempting to handle

or receive stolen property. This is a

matter wh i ch certainly needs

attention.

E ALTERNATIVE VERDICTS

Section 81 of the 1989 Bill pro-

vides that a person charged with

larceny, embezzlement, fraudulent

conversion, obtaining by false

pretences or blackmail may be

found guilty, as an alternative, of

handling stolen property if the

evidence proves handling. This is to

be welcomed. It overcomes the

type of difficulty illustrated by

cases such as

O'Leary

-v-

Cunningham

F. SHI FT IN THE EVIDENT IAL

BURDEN

Section 3 of the 1989 Larceny Bill

repeals Section 33 of the 1916 Act

and replaces it with a new Section

33. The new Section 33 (2) (b)

states

"where a person (1) receives

stolen property, or (2) under-

takes a retention, removal, dis-

posal or realization by or for the

benefit of another person, or (3)

arranges to do any of the things

specified in sub-paragraph (1) or

(2) of this paragraph in such

circumstances that it is reason-

able to conclude that he knew or

believed the property to be

stolen property he shall be taken

to have so known or believed

unless the court or the jury, as

the case may be, is satisfied

having regard to all the evidence

that there is a reasonable doubt

as to whether he so knew or

believed".

" I t certainly does not

discharge the

prosecution from the

onus of proving that

the accused is guilty in

all the circumstances."

Inevitably there has been some

debate about the exact effect of

this.' On the surface it could be

argued that it shifts the onus of

proof on to the accused, if that

were its effect it would certainly be

controversial. On balance however,

it does not appear to do that. It

certainly does not discharge the

prosecution from the onus of

proving that the accused is guilty

in all the circumstances. There is,

it is contended, still no onus on the

accused to provide any explana-

tion. The effect of Section 33 will

be to allow inferences to be drawn

if the accused does not given an

explanation or if his explanation is

not satisfactory. It would appear

that what the legislature are doing

in Section 32 (2b) is putting into

statutory form the decision of the

Irish Court of Criminal Appeal in

The People

AG -v- Og/esby:

Conclusion

It can be seen that the 1989 Bill is

far from perfect. However, it does

provide some much needed and

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