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GAZETTE
APRIL 1978
Receiving Goods Stolen in
Northern Ireland and in Britain
James Connolly, Barrister-at-Law
• The recent Supreme Court decision in the case of
the
State (Gilsenan)
v.
District Justice McMorrow
(noted in
the Jan.-Feb. issue of the Gazette) may well precipitate
legislation to provide that persons receiving goods
knowing them to have been stolen in Britain will be guilty
of a criminal offence in this country. In his judgment, Mr.
Justice Kenny stated as follows, regarding the Court's
conclusions in this case, "This leads to the remarkable
conclusion that it is not a crime under our law to receive
or have possession in the State of goods stolen in Britain.
The close commercial connections between Britain and
the State make it desirable that amending legislation
should be introduced and passed".
An anomaly therefore exists whereby a person in this
State receiving goods stolen in Northern Ireland shall be
guilty of a criminal offence but not where the goods were
stolen in England or Wales or Scotland.
In the case Joachim Gilsenan was returned for trial to
the Circuit Court on a number of charges including
having in his possession without lawful excuse a motor
car "knowing the same to have been stolen in Northern
Ireland", and the case then came before the Supreme
Court on the issue as to whether there is a geographical
area known to the law of this State as Northern Ireland.
The Supreme Court rejected this contention, and relied on
the number of post 1923 Statutes passed in the Oireachtas
relating to Northern Ireland. In the opinion of Mr. Justice
Henchy with which Chief Justice O-Higgins, Mr. Justice
Griffin and Mr. Justice Parke concurred,^"... the Courts
are bound to give judicial notice to the expression Northern
Ireland as connoting the part of this island which is
outside the functioning jurisdiction of this State which has
been given the statutory description of the Republic of
Ireland". Mr. Justice Kenny at page 3 of his separate but
concurring judgment also rejected the whole of this
contention: "it offends against the common usage of
speech in this State md is contrary to many provisions of
the Acts of the Oiicachtas. This Court would make itself
ridiculous and deserving of amused contempt by tne
public if it decided that it did not know what the
expression "Northern Ireland' meant".
The anomaly arises as follows — Section 33(4) of the
Larceny Act, 1916 provides:
"Every person, who, without lawful excuse,
knowing the same to have been stolen or obtained in
any way whatsoever under such circumstances that if
the act had been committed in the United Kingdom the
personr committing it would have been guilty of a
felony or misdeamcanour, receives or has in his
possession any property so stolen or obtained outside
the United Kingdom, shall be guilty of an oficnce of
the like degree (whether felony or misdemeanour)..."
•
Thus, it is a criminal ofTence to receive goods stolen
outside the United Kingdom, knowing them to have been
stolen. Section 3 of the Adaptation of Enactments Act,
1922, provides: "for the purpose of the construction of
any British Statute, the name Ireland . . . shall refer to
Saorstat Eireann". There is no Statutory or other
definition of the term outside the United Kingdom. In the
Gilsenan case, Mr. Justice Kenny stated "In my opinion
the expression "outside the United Kingdom' when it
occurs in a British Statute passed before the 6th
December, 1921 must now be read as "outside Great
Britain and the State'." But the Anglo-Irish Treaty of
1921, was made between Governments styling
themselves as those of Great Britain, the Irish Free State
and Northern Ireland; and Section 1 (2) of the
Government of Ireland Act, 1920, proposed that
Northern Ireland was to consist of the Parliamentary
Counties Antrim, Armagh, Derry, Down, Fermanagh
and Tyrone and the Parliamentary Boroughs of Belfast
and Derry; and Section 3 (2) of the Interpretation Act,
1923, provided that the expression 'Northern Ireland' is
to mean such part as the powers of the Parliament and
Government of Saorstat Eireann shall, for the time being,
not extend to. The effect of these Acts and the judicial
notice given in this case regarding the boundaries of the
area of Northern Ireland is to identify Northern Ireland
and identify it as being outside the United Kingdom as
defined in these Acts. Hence, the Court arrived at the
conclusion that it was an offence to receive goods stolen
in Northern Ireland, but not in Great Britain, knowing
them to have been stolen.
Even if our Legislators were to amend the provisions of
Section 33 (4) to make it an offence to receive goods
stolen outside the State, knowing them to be stolen,
further difficulties arise.
Under the Criminal Law Act, 1967, the distinction
between a felony and a misdemeanour were replaced in
England and Wales by arrestable and non-arrestable
offences, which distinction is based on different criteria to
the distinction between a felony and a misdemeanour.
Moreover, the Theft Act 1968, now applies to England
and Wales and the Theft Act, 1969, making similar
provisions, was passed in Northern Ireland; and by
Section 49 of the Larceny Act, 1916, that Act never
applied to Scotland.
It seems that evidence would have to be adduced by the
prosecution in any cases brought under such a provision,
that would satisfy the Courts that the goods were
obtained by a "stealing' as defined in the Larceny Act,
1916, or otherwise dishonestly as provided by that Act,
and that the obtaining constituted either a felony or a
misdemeanour. Thus, in view of the wider definition
under the Theft Act. 1968, in England and the Theft Act,
1969, not every dishonest obtuining or dishonest handling
of goods as would warrant a conviction in Englnnd,
Wales and Northern Ireland, would warrant a conviction
in this Slate.
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