The Gazette 1993

GAZETTE

APRIL

1993

we have the benefit of the United

Kingdom experiences over the past

twenty-five years.

Undoubtedly, one of the reasons for

all this difficulty is that, historically,

larceny was seen as a crime against

possession rather than ownership.

This particular perspective then led

to the creation of such special

offences as larceny by a bailee and

fraudulent conversion - simple

larceny could not cover such

activities as the dishonest person was

actually in possession of the goods.

Furthermore, it led to the distinction

between such crimes as larceny by a

trick and obtaining by false

pretences. The intricate differences

between these various crimes, though

beloved by legal examiners, caused

great difficulties in practice and

many dishonest persons walked free

because they were charged under an

inappropriate section.

What plainly is needed is a simple

piece of legislation to make

dishonesty illegal but, proclaiming

what is needed is simpler than

drafting such a statute. Our Law

Reform Commissioners make

numerous recommendations and it is

refreshing to note that they do not

slavishly follow the United Kingdom

model but rather attempt to learn by

its mistakes. All in all they make

seventy recommendations. The main

recommendations involve the

creation of an offence of "dishonest

appropriation" with the word

dishonest being defined in terms of

the absence of a claim of right. The

United Kingdom Theft Act does not

define dishonesty but rather lists out

instances of what it considers

"honest appropriation". Secondly, it

will no longer be necessary for an

accused person to have an intention

to permanently deprive an owner of

the property. Thirdly, it advocates a

catch-all offence of dishonesty to

cover cases not caught by other

crimes. This new offence would have

a maximum sentence of five years,

and is defined as dishonestly causing

another to suffer financial prejudice

or dishonestly making a gain for

oneself.

This last recommendation, though

controversial, may turn out to be the

most important one. To date the law

seems to be unable or unwilling to

deal with some of the most serious

of all forms of dishonesty - insider

trading, use of insider information

and dishonest personal profit-making

by persons who manage State or

private companies. The law must be

seen to be impartial and it is

difficult to explain to a jailed shop-

lifter why certain well publicised

cases of what appear to be blatant

fraud are not prosecuted. On the

other hand I often wonder if the will

is there to prosecute this type of

white collar crime. We are told, for

instance, that a solicitor or

auctioneer who converts money from

his client account to his office

account cannot be charged as it is

impossible to say which of his

particular clients he has stolen from.

This Report points out that the

English authorities had no difficulty

in succeeding in such prosecutions

under the Larceny Act, 1916. The

proposed new crime of dishonesty

will, however, obviate procedural

difficulties, but I wonder how we are

going to deal, for example, with the

currency speculators who recently

made huge profits at the expense of

this country as a whole. Did this

speculation amount to dishonesty?

At the end of their report the

Commission make several

recommendations connected with

court procedure and Garda powers

of search and arrest. These

recommendations may be more than

just an afterthought attached onto a

well researched report, but I feel that

the whole question of increasing

Garda powers and delimiting the

right to silence is sufficiently

important in itself to be dealt with

in a specific report. A further

consideration of these

recommendations is necessary.

Finally, I must criticise the

recommendations of the Committee

that the choice of venue of trial be

given only to the Director of Public

Prosecutions (subject to the

overriding jurisdiction of the District

Judge) and taken away from the

accused person. This

recommendation has to be seen in

the context of a definite policy

decision to delimit the accused's

right to trial by jury. The most

obvious example of this policy

occurs in relation to alleged assault

and obstruction of Gardai and

resisting arrest. The prosecution

authorities, presumably worried by

the large number of acquittals before

juries in this type of case, instructed

the Gardai not to proceed by way of

Section 38 of the Offences Against

the Person Action, 1861 (giving the

accused a right to elect for

indictment) but to charge such

persons with different summary

offences. Recent legislation such as

the Drugs Act and Criminal Damage

Act continues this trend. Experience

shows that a judge may be more

likely to accept Garda evidence of

identification or of a surveillance

exercise than would a jury. There is

no doubt that very serious cases of

unlawful taking of motorcars and

supply of heroin are dealt with in

the District Court even when accused

persons would have been anxious to

have gone before a jury. I would

urge the reversal of this trend and

the maintenance of the accused's

right of jury trial in dishonesty

cases.

Apart from these criticisms, the Law

Reform Commission has again done

an admirable job in producing this

Report. The matter is now in the

hands of the politicians and we can

only hope that we will have a new

statute on the books before the 80th

anniversary of the Larceny Act!

Michael Staines

Legal Aspects of Commercial

Sea-Fishing in the EEC

ICEL, 1992, 84pp. £12.50 (members)

£14.50 (non-members) páperback.

This is a publication of some of the

papers delivered at a seminar,

organised jointly by the Irish Fish

Producers Organisation (the IFPO)

and the Irish Centre for European

Law, Trinity College, Dublin.

The joint promotion, was the brain

child of

Mark Lochrin,

Chief

Executive of the IFPO.