The Gazette 1989

GAZETTE

DECEMBER 1989

As the Law Reform Commission concluded two years ago the law as it stands is out of date and has come to be unduly favourable to the accused. These new provisions will be of invaluable assistance to the Garda and the Prosecution authorities in dealing with known receivers of stolen property. And if receiving is thereby curtailed so too we believe will be theft". 5. See S. 3 of the Larcency Bill, 1989 which repeals S. 33 of the Larceny Act, 1916 and replaces it with a new S. 33. 6. It can be argued that is was unnecessary to add this further element to the mens rea. As we shall see later in this article the concept of dishonesty which has been imported from the 1968 Theft Act in England has given rise to grave difficulties in practice. It is interesting to see the House of Lords struggling with this concept in cases such as R. -v- Morris [1983] 3 AII.E.R. 294. See also R. -v- Feeiy [19731 Q.B. 530. R. -v- McGyver 11982) I AII.E.R. 491 R. -v- Ghosh [19821 Q.B. 1053. See also Dail Debates Vol. 392 No. 3 col. 788. 7. See new Section 33 (2) (a) (2) and new Section 33 (2) (a) (3). For example in R. -v- Smyth 6 Cox C.C. 554, Earl, J, said (at p.556) "Possession is one of the most vague of all vague terms, and shifts its meaning according to the subject matter to which it is applied, varying very much in its sense, as it is introduced into either civil or into criminal proceedings". 8. See. R. -v- Lawless C.C.A. 6/11/1968. 9. See People -v- Byrne 3 ILTR 348 also R. -v- Miller, 6 Cox CC 353 (Irish Court of Criminal Appeal, 1853). 10. See Law Reform Commission Report No. 23 on Receiving Stolen Property at p. 511. This can give rise to confusion e^j. in the Dail Debates Vol. 392, No. 3 at col. 768. Deputy Liam Kavanagh fell into this trap. He said "One of the great faults of the Bill as I see it is that it deals only with physical handling and therefore it is a little outdated. There are many sophisticated ways of doing business but unfortunately the same sophisticated ways can be used to commit crimes".

(1) Dishonest debt evasion. Where debts are dishonestly evaded it is arguable that the civil law is not sufficient to deal wi th the matter. It is the sort of activity t ha t shou ld ce r t a i n ly be criminalised particularly when there was every intention to evade from the beginning. ( 2 ) Dishonest acquisition of ser- vices and labour which is also unprovided for either in the 1916 Act or in the 1989 Bill. ( 3 ) Uriauthorsied use of cheque cards and credit cards. The creation of a specific offence to cover this area is probably necessary. 44 ( 4 ) Computer fraud. Special pro- vision is probably necessary here also. 45 "Every person who receives any property, believing the same to have been stolen or obtained in any way whatsoever under circumstances which amount to a felony or misdemeanour shall be guilty of an offence of the like degree . . . . " 2. The sentence is penal servitude for any period not exceeding seven years, see S.33 (1) (a) and S.33 (1) (b); 3. See the case of A.G. -v- Nugent & Byrnes (1964) 98 I.L.T.R. 139. See also Minister for Posts & Telegraphs -v- Campbell 11966) I.R. 69 particularly Davitt P. at pp. 73-74. 4. See the People -v- Berber and Levey 11944] I.R. 405. See especially pp. 411-412. See also Hanlan -v- Fleming 119811 I.R. 489 (Supreme Court). 4(a) Welcomed in effusive terms by the media see e.g. editorial of the Irish Independent dated 12th October 1989 which stated "We welcome this Bill. Footnotes 1. Sec. 33 (11) states:-

welcome changes in this area of criminal law. Apparently the original brief of the Law Reform Commiss- ion was to look at the entire law relating to larceny. This is clear from the very first paragraph of their Report. The Commission did not consider the entire law relating to theft because of the extremely limited resources available to it. That is also clear in the first para- "The entire area of Irish Criminal law relating to larceny and theft needs to be overhauled as a matter of urgency." graph of their Report. That is a deplorable situation. The 1916 Act which is the governing legislation on the Irish law relating to larceny is not suitable to modern condit- ions. The entire area of Irish Criminal law relating to larceny and theft needs to be overhauled as a matter of urgency. 43 That would have to be borne very firmly in mind by the Law Reform Commission when they come to make their recommendations on the general law of larceny in this country. It is also suggested that when the Law Reform Commission come to do this they should take careful note of certain matters which are not dealt wi th adequately under Irish Criminal Law as it stands at the present time. These include:

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