The Gazette 1989

GAZETTE

DECEMBER 1989

of the offence of handling should be actual knowledge or reckless- ness. 22 It is submitted that this approach is far preferable to the approach adopted in the 1989 Larceny Bill. The concept of reck- lessness has given rise to its own difficulites. 23 However, it is far preferable to what the Irish drafts- man has attempted in the 1989 Larceny Bill which represents a well meaning but fudged and, it is submitted, inadequate compromise between Section 22 of the 1968 Theft Act (English) and the recom- mendation of the Law Reform Commission. The approach adop- ted by the Irish draftsman could prove self defeating. If there is one thing which has become very evident from a study of this area of the law it is that the greater the complexity the greater the oppor- tunity an accused person would have of getting round the law because of a technicality. The more precise and simple the legislation is, then the greater the chance there will be that an accused person will not succeed on a technicality. The 1989 legislation as drafted will increase the difficulties of a trial judge giving an adequate direction to a jury. Consequently the danger of a trial judge's charge to a jury being quashed as being inadequate will be considerably increased. The new legislative "Mens Rea' created by the 1989 Larceny Bill gives rise to a great deal of uncertainty and confusion. It is difficult to know whether any significance will be attached to the fact that the definition of belief is not that believing property means thinking that the property was probably stolen but rather that it includes thinking that such property was probably stolen. 24 It is impossible to predict the significance of the use of the word "probably" here. The only thing that can be pre- dicted with certainty is that there will be a great deal of uncertainty in this area of the law for the immediate future.

The Law Reform Commission also recommended that the court would in addition to any penalty imposed be able to order payment of compensation by the handler whether or not the offence was committed by the handler him- self. 31 This recommendatin is not followed in the 1989 legislation. That is to be regretted. 32 The 1916 Larceny Act punished the receiving of property which was either "stolen or obtained in any way whatsoever under circum- stances which amounted to a felony or misdemeanor". 33 The 1989 Bill does not follow that definition. It contains a separate definition of "stolen" property. That is contained in Section 7 (4) of the Bill. The Bill treats property "The 1989 Bill leaves out some property wrongfully obtained . . . " as stolen property for the purpose of handling offences whether it was obtained by larceny, embezzle- ment, fraudulent conversion, false pretences or blackmail. It is submi t t ed t hat basically the approach adopted in the 1916 Act is preferable. The 1989 Bill leaves out some property wrongfully obtained otherwise than in the various ways set out in section 7 (4). For example property which has been the subject of a customs offence such as smuggling is not covered. 34 One slight difficulty that emerged from the interpreta- tion of the definition of stolen property in the 1916 Act is high- lighted in the case of DPP -v- Niesier (1958) 3AIIER 662. In that case it was held that where a person is charged with receiving property under the 1916 Act under circumstances which amount to a misdemeanour the property must be proved to have been originally acquired by an offence which amounted to a misdemeanour. It was held that the same applied when a person was charged with receiving property under circum- stances which amounted to a felony. 35 This problem is now eliminated by Secion 7 (4) of the 1989 Act. However, that difficulty B. NEW DEF I N I T I ON OF STOLEN PROPERTY.

"The 1989 legislation provides a uniform maximum sentence A. Sentencing The 1916 legislation contained different maximum sentances for larcenies committed in different circumstances. These were the legacy of social concerns of a bygone era and did not reflect current reality. For example the larcency of wills carried a maxi- mum sentence of penal servitude for life. The larcency of documents of title attracted a comparatively light maximum sentence of five years penal servitude. The 1989 legislation provides a uniform maxi- mum sentence of ten years im- prisonment for all the larceny offences covered by the 1916 Act and for embezzlement, fraudulent conversion, obtaining property by false pretenses and blackmail. 25 It also provides a maximum sentence of fourteen years imprisonment for handling. 26 Section 2 of the 1989 Bill provides that possession of cer- tain articles for use in larceny and other related offences is in itself an offence. 27 The maximum penalty is five years imprisonment on first conviction and ten years on second and subsequent convictions. This introduction of uniformity in maxi- mum sentances is to be welcomed, it does not follow the recom- mendation by the Law Reform Commission to the effect that the same sentence should be provided for larceny and handling. 28 That is understandable. The Irish legislat- ure is obviously concerned to send a signal that it regards handling or receiving stolen property as a more heinous offence than ordinary larceny. 29 Space does not permit me to go into this matter in detail but it is sufficient to say that there are strng grounds for this opinion. 30 "The Irish legislature is obviously concerned to send a signal that it regards handling or receiving stolen property as a more heinous offence than ordinary larceny."

OTHER CHANGES IN THE 1989 BILL The 1989 Bill incorporates a number of other changes in the law. Some of these are very wel- come. However, some of them are unwelcome in varying degrees.

4 2 3