The Gazette 1989

GAZETTE

DECEMBER 1989

welcome changes in this area of

criminal law. Apparently the original

brief of the Law Reform Commiss-

ion was to look at the entire law

relating to larceny. This is clear

from the very first paragraph of

their Report. The Commission did

not consider the entire law relating

to theft because of the extremely

limited resources available to it.

That is also clear in the first para-

"The entire area of

Irish Criminal law

relating to larceny and

theft needs to be

overhauled as a matter

of urgency."

graph of their Report. That is a

deplorable situation. The 1916 Act

which is the governing legislation

on the Irish law relating to larceny

is not suitable to modern condit-

ions. The entire area of Irish

Criminal law relating to larceny and

theft needs to be overhauled as a

matter of urgency.

That would

have to be borne very firmly in mind

by the Law Reform Commission

when they come to make their

recommendations on the general

law of larceny in this country. It is

also suggested that when the Law

Reform Commission come to do

this they should take careful note

of certain matters which are not

dealt wi th adequately under Irish

Criminal Law as it stands at the

present time. These include:

(1) Dishonest debt evasion. Where

debts are dishonestly evaded it

is arguable that the civil law is

not sufficient to deal wi th the

matter. It is the sort of activity

t ha t shou ld ce r t a i n ly be

criminalised particularly when

there was every intention to

evade from the beginning.

( 2 ) Dishonest acquisition of ser-

vices and labour which is also

unprovided for either in the

1916 Act or in the 1989 Bill.

( 3 ) Uriauthorsied use of cheque

cards and credit cards. The

creation of a specific offence

to cover this area is probably

necessary.

( 4 ) Computer fraud. Special pro-

vision is probably necessary

here also.

Footnotes

1. Sec. 33 (11) states:-

"Every person who receives any

property, believing the same to have

been stolen or obtained in any way

whatsoever under circumstances which

amount to a felony or misdemeanour

shall be guilty of an offence of the like

degree . . . . "

The sentence is penal servitude for any

period not exceeding seven years, see

S.33 (1) (a) and S.33 (1) (b);

3. See the case of

A.G. -v- Nugent &

Byrnes

(1964) 98 I.L.T.R. 139. See also

Minister for Posts & Telegraphs -v-

Campbell

11966) I.R. 69 particularly

Davitt P. at pp. 73-74.

4. See the People -v- Berber and Levey

11944] I.R. 405. See especially pp.

411-412. See also Hanlan -v- Fleming

119811 I.R. 489 (Supreme Court).

4(a) Welcomed in effusive terms by the

media see e.g. editorial of the

Irish

Independent

dated 12th October 1989

which stated "We welcome this Bill.

As the Law Reform Commission

concluded two years ago the law as

it stands is out of date and has come

to be unduly favourable to the

accused. These new provisions will be

of invaluable assistance to the Garda

and the Prosecution authorities in

dealing with known receivers of stolen

property. And if receiving is thereby

curtailed so too we believe will be theft".

5. See S. 3 of the Larcency Bill, 1989

which repeals S. 33 of the Larceny Act,

1916 and replaces it with a new S. 33.

6. It can be argued that is was unnecessary

to add this further element to the mens

rea. As we shall see later in this article

the concept of dishonesty which has

been imported from the 1968 Theft Act

in England has given rise to grave

difficulties in practice. It is interesting to

see the House of Lords struggling with

this concept in cases such as

R. -v-

Morris

[1983] 3 AII.E.R. 294. See also

R. -v- Feeiy

[19731 Q.B. 530.

-v-

McGyver

11982) I AII.E.R. 491

R. -v-

Ghosh

[19821 Q.B. 1053. See also Dail

Debates Vol. 392 No. 3 col. 788.

7. See new Section 33 (2) (a) (2) and new

Section 33 (2) (a) (3). For example in

-v- Smyth

6 Cox C.C. 554, Earl, J, said

(at p.556) "Possession is one of the

most vague of all vague terms, and

shifts its meaning according to the

subject matter to which it is applied,

varying very much in its sense, as it is

introduced into either civil or into

criminal proceedings".

8. See.

-v-

Lawless

C.C.A. 6/11/1968.

9. See

People -v- Byrne

3 ILTR 348 also

-v- Miller,

6 Cox CC 353 (Irish Court of

Criminal Appeal, 1853).

10. See Law Reform Commission Report No.

23 on Receiving Stolen Property at

p. 511. This can give rise to confusion e^j.

in the Dail Debates Vol. 392, No. 3 at col.

768. Deputy Liam Kavanagh fell into this

trap. He said "One of the great faults of

the Bill as I see it is that it deals only with

physical handling and therefore it is a

little outdated. There are many

sophisticated ways of doing business

but unfortunately the same sophisticated

ways can be used to commit crimes".

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