The Gazette 1989

DECEMBER 1989

GAZETTE

such property was probably stolen property". 16 The new mens rea i.e. knowing or believing property to be stolen is a repetition of Section 22 of the English Theft Act 1968. 17 How- ever, the definition of believing property to be stolen as thinking that such property was probably stolen is new. It is easy to trace its origin however. In the United Kingdom in the case of R. v. Moys 79Cr App R 72 (CA, 1984) the accused was charged with hand- ling stolen property under Section 22 of the Theft Act 1968. The trial judge told the jury that strong suspicion coupled with a deliberate shutting of the eyes was not merely an alternative to belief under Section 22 but was equivalent to belief under that Section. The Court of Appeal held that this was not a correct charge to the jury. 18 Lord Lane CJ observed "the question is a subjective one and it must be proved that the defendant was aware of the theft or that he believed the goods to be stolen. Suspicion that they were stolen, even coupled with the fact that he shut his eyes in the circum- stances, is not enough, although those matters may be taken into account by a jury when deciding whether or not the necessary knowledge or belief existed"). However, in the subsequent Court of Appeal case R. v. Harris 84 Cr App R 75 (CA1986), Lawton L.J. referring to the passage from the judgement of Lord Lane C. J. in R. v. Moys remarked " i t was submitted . . . on behalf of the appellant that some such direction las that indicated by Lord Lane C. J.] should be given in every case where the issue is whether the defendant believed that the goods were stolen. We doubt whether this is so. We have to look at all the circum- stances of every case. It is for the judge to decide from the feel of the case which is before him whether the jury require further assistance in the meaning of belief". 19 " . . . the Irish Parliamentary draftsman decided to elaborate on the meaning of the word "believe" . . . "

haps the term 'dealing' with stolen property would be preferable to handling stolen property. It would certainly be more consistent with > the definition of handling in the 1989 legislation. 12 Even though the concept of pos- session is no longer a central feature of the Actus Reus of hand- ling stolen property the concept is still expressly retained in the Bill. Section 7(3) of the Bill provides that property ceases to be regarded as stolen property when it has been restored to the owner or to other lawful possession or custody. The difficulties encountered by the courts in that line of cases where property came back into possess- ion of the lawful owner or his agent or other lawful authority were very great indeed. They have given rise to very sharp divisions of opinion amongst the courts. The early case of R. v. Vi/iensky [18921 20B 597 can be contrasted wi th the case of R. v. King [1938] 2AIIER 662. 13 It is clear that in the latter case the court took a very different view of the law than the court in the earlier decision. On the other hand the latter decision has been harshly criticised by various commentators. 14 Section 7 sub-section 3 does not take a positiion on the matter. There is no hint to be found in the wording of the sub-section of which view of the law was pre- ferred by the Irish parliamentary draftsman. This matter will have to be resolved by the courts at some future stage. "The new mens rea i.e. knowing or believing property to be stolen is a repetition of Section 22 of the English Theft Act 1968." (2) The 'Mens Rea' As stated already, a person could not be convicted for receiving under the 1916 legislation unless the State could establish that he actually knew the property was stolen. The new legislation states "a person who handles stolen property knowing or believing it to have been stolen property shall be guilty . . . " 1 5 The legislation goes on to state:- "Believing property to be stolen property includes thinking that

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It would seem that the Irish Parliamentary draftsman decided to elaborate on the meaning of the word "believe" in this context in order to resolve these difficulties and to make it quite clear that the term 'belief' would include sus- picion. That is certainly not an approach that recommended itself to the Law Reform Commission when they considered the subject. The Commission referring to the use of the word 'belief' in the 1984 Act (Section 32) state that the affect of using this word in the 1968 Act was "unfortunate". 20 The Commission went on to state "there is an inherent problem with using the word belief in this context which the English courts were correct in sensing. Belief admits of degrees of commit- ment ranging from certitude to suspicion. There is little advan- tage in a legislative definition which leaves the question of the accused's mens rea in such an imprecise state". 21 "The new legislation 'Mens Rea' created by the 1989 Larceny Bill gives rise to a great deal of uncertainty and confusion." At already stated, the further elaboration of the definition of "be l i e f" by the Irish draftsman is probably designed to get around this type of difficulty and bring suspicion within the ambit of belief. The Law Reform Commission recommended that the Mens Rea

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