The Gazette 1978

GAZETTE

APRIL 1978

Receiving Goods Stolen in Northern Ireland and in Britain

James Connolly, Barrister-at-Law

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. 67

• 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