448 / 482
GAZETTE
DECEMBER 1989
11. See Dail Debates vol. 392 No. 3,
col.784 (Deputy O'Dea col. 809,
Deputy Flanagan, col. 823, see Law
Reform Commission Report col. 14 to
16.
1 2. See Smith & Hogan, Criminal law, p.
454 to 455, 1st Edition 1965.
1 3. See also Proof of Larcency in Receiving
Cases 101 Solicitors Journal, 238
(1957).
14. New S. 33 (1).
15. See S 22 (1).
16. The Court of Appeal felt the trial
Judge's error arose from an incorrect
understanding of a paragraph in
Archbold on Criminal Law, 41st edition
para. 18/165.
17. At p.79.
1 8. See Law Reform Commission Report
paragraph 120 at p.94.
1 9. Law Reform Commission Report p.94.
In an article called "The Mishandling
of Handling," (1981 Criminal Law
Review
p.682)
Spencer
said
"sometimes you would think that the
Courts were trying to make a dog's
breakfast of the law of handling stolen
goods. In one line of cases on secion
22 of the Theft Act 1968 they
interpreted the words "knowing or
believing as knowing them to be
stolen" so perpetuating the defect in
the earlier law which the addition of the
words" or believing "was designed to
cure".
2 0. Law Reform Commission Report para-
graph, 130 p.100. In relation to the
definition of recklessness for this
purpose the Law Reform Commission
was attracted by the approach
favoured by the American Law Institute
in Section 202 (2) (c) of the tentatative
draft No. 4 of the Model Penal Code
which they considered should form the
basis of the legislative definition in this
country.
21. See article by Mary McAleese, 'Just
What is Recklessness', 1981 Dublin
University Law Journal 29; see Dail
Debates vol. 392, No. 3, 26 October
1989, col. 798, (per Deputy O'Dea).
2 2. See S. 9.
2 3. S. 3.
2 4. Ss. 22 and 23.
2 5. Paragraph 151 p.110. It is worthwhile to
note that the Law Reform Commission
did not definitely recommend that the
maximum sentence should be ten
years. The relevant part of the
recommendation states "the same
sentence should be provided for
larceny and handling. Perhaps a period
of ten years would be appropriate".
2 6. See Dail Debate Vol. 392, No. 3 col.
786/787.
2 7. Law Reform Commission paragraph
151, p.110. See also Dail Debates Vol.
392 No. 3, 26 October 1989, col. 791.
2 8. When replying at col. 965 of the Dail
Debates, the Minister, Mr. Burke, stated
Deputy O'Keeffe as well as Deputies
McCartan and O'Dea raised the
question of the recommendation made
by the Law Reform Commission
regarding the ordering by court of
payment of compensation by the
offender to the victim . . I can assure
the deputies that this [matter) is under
consideration in my department and I
hope to be in a position in the
reasonably near future to put proposals
to the Government".
2 9. S.33 (1) (a) and (b).
3 0 . See Law Reform Commission Report
pp.11-13; see also page 103 paragraph
134, where the Law Reform Commiss-
ion stated: "we consider the legislation
should provide that the offence would
be committed in respect of goods un-
lawfully obtained and that it should not
be necessary to specify how the goods
were unlawfully obtained. Unlawfully
obtained could be defined as obtained
in circumstances amounting to an
offence (including any breach of S. 186
of the Customs Consolidation Act,
1876). The definition should be ex-
tended to cover cases where the goods
were obtained lawfully, however subse-
quently criminally misappropriated.
3 1. See Law Reform Commission Report
paragraph 39 p.27.
3 2. See
The State
(GUsenan)
-v-
McMorrow,
[1978] IR. 372, also
The
People (Attorney GeneralI -v- Ruttledge
[19781 IR 376.
3 3. See Law Reform Commission, p. 22 See
Dail Debates vol. 392, No. 3, 26
October 1989, col. 799.
3 4. See especially Lord Hailsham L.C. "I do
not think that it is possible to convert
a completed act of handling, which is
not itself criminal because it was not
the handling of stolen goods, into a
criminal act by the simple device of
alleging that it was an attempt to
handle stolen goods, on the grounds
that at the time of handling the
accused falsely believed them to be
stolen. In my opinion it would not be
for the court to manufacture a new
criminal offence not authorised by the
legislature''.
3 5. [1975] EC 476, page 490.
3 6 . See Law Reform Commission, p.40.
See also
People -v- Carney
[1951] IR
324.
3 7. See especially Kenny. J. at p.165.
3 8. However, it has now been confirmed
that the Law Reform Commission is
examining the general law relating to
larceny. See Dail Debates, vol. 392, No.
3, at col. 787. In his reply at col. 966
the Minister stated: "I accept the need
for a more thorough-going look at the
Larceny Act. As referred to by Deputy
O'Dea, the Law Reform Commission is
in fact looking at the whole area of
dishonesty and will be making further
reports on the matter. They saw
receiving of stolen property as an area
requiring priority attention and dealt
with it separately. When the further
reports are received they will be dealt
with and should enable us to take a
useful step towards an ultimate
codification of the criminal law by
perhaps codifying in one statute
relating to theft etc. However, because
of the complexity of the matter which
is compounded by the fact that the
main provision is now over seventy
years old, this process will be corqplex
and protracted. The Government agree
with the Commission that receiving
should be tackled now".
3 9. [1975] AC 476.
4 0 . Since it was impossible to handle
stolen property (as the property was
not stolen) the accused could not be
convicted of attempting to do this.
41. Supreme Court, unreported, 28.7.80.
4 2 . [1966] IR 163.
4 3. However, a note of warning must be
sounded for the Law Reform Commis-
sion when, eventually, they do come to
report on this. The English Theft Act
of 1968 has been proved to be far from
perfect. Its implementation has not
been without problems. Grave dif-
ficulties have been encountered in the
interpretation of terms like "appropri-
ation" and "dishonesty".
4 4 . See Section 13 (1) of the Debtors
(Ireland) Act 1872 which, it is
suggested, is only a partial solution.
4 5. Given the difficulty involved in estab-
lishing a "taking", or, "obtaining on
conversions" - See McCutcheon -
The Larceny Act 1916 pp.144-145.
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