The Gazette 1989

GAZETTE

DECEMBER 1989

134, where the Law Reform Commiss- ion stated: "we consider the legislation should provide that the offence would be committed in respect of goods un- lawfully obtained and that it should not be necessary to specify how the goods were unlawfully obtained. Unlawfully obtained could be defined as obtained in circumstances amounting to an offence (including any breach of S. 186 of the Customs Consolidation Act, 1876). The definition should be ex- tended to cover cases where the goods were obtained lawfully, however subse- quently criminally misappropriated. 3 1. See Law Reform Commission Report paragraph 39 p.27. 3 2. See The State (GUsenan) -v- McMorrow, [1978] IR. 372, also The People (Attorney GeneralI -v- Ruttledge [19781 IR 376. 3 3. See Law Reform Commission, p. 22 See Dail Debates vol. 392, No. 3, 26 October 1989, col. 799. 3 4. See especially Lord Hailsham L.C. "I do not think that it is possible to convert a completed act of handling, which is not itself criminal because it was not the handling of stolen goods, into a criminal act by the simple device of alleging that it was an attempt to handle stolen goods, on the grounds that at the time of handling the accused falsely believed them to be stolen. In my opinion it would not be for the court to manufacture a new criminal offence not authorised by the legislature''. 3 5. [1975] EC 476, page 490. 3 6 . See Law Reform Commission, p.40. See also People -v- Carney [1951] IR 324. 3 7. See especially Kenny. J. at p.165. 3 8. However, it has now been confirmed that the Law Reform Commission is examining the general law relating to larceny. See Dail Debates, vol. 392, No. 3, at col. 787. In his reply at col. 966 the Minister stated: "I accept the need for a more thorough-going look at the Larceny Act. As referred to by Deputy O'Dea, the Law Reform Commission is in fact looking at the whole area of dishonesty and will be making further reports on the matter. They saw receiving of stolen property as an area requiring priority attention and dealt with it separately. When the further reports are received they will be dealt with and should enable us to take a useful step towards an ultimate codification of the criminal law by perhaps codifying in one statute relating to theft etc. However, because of the complexity of the matter which is compounded by the fact that the main provision is now over seventy years old, this process will be corqplex and protracted. The Government agree

11. See Dail Debates vol. 392 No. 3, col.784 (Deputy O'Dea col. 809, Deputy Flanagan, col. 823, see Law Reform Commission Report col. 14 to 16. 1 2. See Smith & Hogan, Criminal law, p. 454 to 455, 1st Edition 1965. 1 3. See also Proof of Larcency in Receiving Cases 101 Solicitors Journal, 238 (1957). 14. New S. 33 (1). 15. See S 22 (1). 16. The Court of Appeal felt the trial Judge's error arose from an incorrect understanding of a paragraph in Archbold on Criminal Law, 41st edition para. 18/165. 17. At p.79. 1 8. See Law Reform Commission Report paragraph 120 at p.94. 1 9. Law Reform Commission Report p.94. In an article called "The Mishandling of Handling," (1981 Criminal Law Review p.682) Spencer said "sometimes you would think that the Courts were trying to make a dog's breakfast of the law of handling stolen goods. In one line of cases on secion 22 of the Theft Act 1968 they interpreted the words "knowing or believing as knowing them to be stolen" so perpetuating the defect in the earlier law which the addition of the words" or believing "was designed to cure". 2 0. Law Reform Commission Report para- graph, 130 p.100. In relation to the definition of recklessness for this purpose the Law Reform Commission was attracted by the approach favoured by the American Law Institute in Section 202 (2) (c) of the tentatative draft No. 4 of the Model Penal Code which they considered should form the basis of the legislative definition in this country. 21. See article by Mary McAleese, 'Just What is Recklessness', 1981 Dublin University Law Journal 29; see Dail Debates vol. 392, No. 3, 26 October 1989, col. 798, (per Deputy O'Dea). 2 2. See S. 9. 2 3. S. 3. 2 4. Ss. 22 and 23. 2 5. Paragraph 151 p.110. It is worthwhile to note that the Law Reform Commission did not definitely recommend that the maximum sentence should be ten years. The relevant part of the recommendation states "the same sentence should be provided for larceny and handling. Perhaps a period of ten years would be appropriate". 2 6. See Dail Debate Vol. 392, No. 3 col. 786/787. 2 7. Law Reform Commission paragraph 151, p.110. See also Dail Debates Vol. 392 No. 3, 26 October 1989, col. 791. 2 8. When replying at col. 965 of the Dail Debates, the Minister, Mr. Burke, stated Deputy O'Keeffe as well as Deputies McCartan and O'Dea raised the question of the recommendation made by the Law Reform Commission regarding the ordering by court of payment of compensation by the offender to the victim . . I can assure the deputies that this [matter) is under consideration in my department and I hope to be in a position in the reasonably near future to put proposals to the Government". 2 9. S.33 (1) (a) and (b). 3 0 . See Law Reform Commission Report pp.11-13; see also page 103 paragraph

with the Commission that receiving should be tackled now". 3 9. [1975] AC 476. 4 0 . Since it was impossible to handle stolen property (as the property was not stolen) the accused could not be convicted of attempting to do this. 41. Supreme Court, unreported, 28.7.80. 4 2 . [1966] IR 163. 4 3. However, a note of warning must be sounded for the Law Reform Commis- sion when, eventually, they do come to report on this. The English Theft Act of 1968 has been proved to be far from perfect. Its implementation has not been without problems. Grave dif- ficulties have been encountered in the interpretation of terms like "appropri- ation" and "dishonesty". 4 4 . See Section 13 (1) of the Debtors (Ireland) Act 1872 which, it is suggested, is only a partial solution. 4 5. Given the difficulty involved in estab- lishing a "taking", or, "obtaining on conversions" - See McCutcheon - The Larceny Act 1916 pp.144-145.

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