Dáil Éireann - Volume 394 - 06 December, 1989

Larceny Bill, 1989: Committee Stage.

[357] Section 1 agreed to.


Mr. Kavanagh: I move amendment No. 1:

In page 2, between lines 16 and 17, to insert the following:

28.—(1) In this section “possession” means—

(a) actual possession, or

(b) constructive possession where goods are in possession of a person over whom another person has authority or control and by reason of that authority or control should be regarded as possessing or exercising control over the goods.

The Minister in his speech on this Bill indicated to the House that the Bill is designed to make life harder for those who receive and deal in stolen property and that he is replacing the existing offence of receiving stolen property with a more broadly based offence of handling stolen property. The Bill is deficient in the aims set out in the explanatory memorandum as it should expand on the term “possession”. This Bill seeks to implement the recommendations of the Law Reform Commission in their report dealing with receiving stolen property. That report indicates that possession of stolen property is difficult to define. Possession means that one has the goods in one's hands, on one's property or in a cupboard in one's home. We accept that that means possession. But, constructive possession may mean that goods are in the possession of another person over whom the defendant has authority or control and in these circumstances the question may arise as to whether the defendant should be regarded as being in possession of or exercising control over the goods, in legislation or by case law.

We should introduce an amendment to deal with the term “possession” and explain it under the heading of actual [358] possession or constructive possession. The Bill would be enhanced by having these terms indicated in section 2. I am asking the House to adopt this amendment so that we can say that goods are in possession of a person who has authority over or is in control of another person and by reason of that authority or control could be regarded as in possession or exercising control over the goods.

The Bill endeavours to update the 1916 Act. It is a series of amendments to that Act but it does not attempt to bring our larceny legislation up to date. The Bill is defective in that it does not take into account the changed circumstances covering a period of almost 80 years. Present day larceny is different from what took place at the turn of the century. Larceny is very sophisticated nowadays in that not only are there people who steal but there are godfathers who send people out to steal, who have control over others but who do not actually steal. In this amendment I endeavour to expand the term “possession” to cover modern criminals such as those referred to in the report on crime by the Garda Commissioners which was published last December.

There has been a huge escalation of offences. In 1988, 51, 291 recorded cases of larceny took place here. This is an increase of 3,300 cases over 1987. Unfortunately the detection rate has only slightly improved on the previous year and only 16,000 of the 51,000 cases were detected. The value of the goods stolen is about £30 million and the value of the goods detected and returned to original owners is very small, amounting to something like £3 million or £4 million. Ordinary breaking, entering and stealing has been outdated by sophisticated methods of stealing and the use of modern technology. The return to the criminals is very great indeed. If our legislation does not reflect modern trends the Bill fails in this area, and we have failed to take an opportunity today and have to wait for another Bill in order to deal with criminals and the type of crime being committed today under the heading of larceny.

[359] It is with that in mind that I have introduced this amendment to give a better definition of possession, to reflect the thoughts in the Law Reform Commission report, so that the contents of this Bill will be brought to bear on the godfathers of crime and the Garda will have the instrument, in the form of this Bill when it becomes an Act, to act against these people.

Mr. J. O'Keeffe: There is virtually unanimous agreement in this House that the present law needs to be changed. The purpose of the debate on Committee Stage is to ensure that the legislation we put in place will be as effective as possible in ensuring that the godfathers of crime are brought to justice. Clearly there is need for an improvement in the present situation. The figures in the crime report bring this home to us. Last year there was an increase in the value of property stolen from £31 million to £34 million of which less than £3 million was recovered. Clearly crime is a major industry and, unfortunately, for many of the large scale receivers it is very clear that crime does pay.

Our job here is to try to ensure that this Bill is as tight and as effective as possible. I understand fully the concern of my colleague, Deputy Kavanagh, in tabling this amendment. In the spirit in which I made my opening remarks, I would like to hear the Minister's reaction to this amendment. If I am convinced that the amendment proposed by Deputy Kavanagh will result in a tighter and more effective Bill then I want to see it in the legislation. At page 5 of the Law Reform Commission report, dealing with receiving stolen property, it is stated that the willingness of the courts to adopt the concepts of actual and constructive possession has, on occasion, confused rather than clarified the issue. That is a factor that we will have to take into account.

The other point that has to be addressed is whether Deputy Kavanagh's amendment, which has its attractions, ties in with the new section 3. That is [360] really where I want clarification from the Minister. I will defer further comment on the matter until I hear what the Minister has to say on Deputy Kavanagh's amendment.

Minister of State at the Department of the Taoiseach (Mrs. Geoghegan-Quinn): I would like, first of all, to thank all the Deputies in the House for the spirit in which they have approached the debate this morning. We all appreciate very much that crime is indeed a major industry and that our job here today, and in other legislation in this whole legal reform area, is to try to eliminate crime as far as that is possible.

Deputy Kavanagh's arguments all relate to possession of stolen property and the issue here is possession of articles for use in larceny, etc. The amendment is opposed. There is no need to define possession for the purposes of the new offences which will be created under section 28 of the 1916 Act as provided for by section 2 of the Bill. The meaning of “possession” in a statute must always be gathered from the context and the purpose of the statute in general. A definition should not be used unless there is an actual need, for example, where the expression is used in an artificial way, or it is desired to include something extra to what would ordinarily be understood by the expression or, again, where the expression is technical. In the present case I am satisfied that the courts will have no difficulty in applying the section without a definition.

Take first the offence under subsection (1). In this case the doctrine of constructive possession will probably have little relevance, because the offence consists essentially of going out with an article to be used in committing an offence within a reasonably short time. Subsection (1) specifically provides that the offence is to apply when the person in question is not at his place of abode. Therefore, if a person has a screwdriver in his home for use in burglary at some later time, and if he goes out leaving the [361] screwdriver at home in his wife's possession, he will not be guilty of the offence under subsection (1) as drafted; but with the amendment he would probably be guilty, which clearly would not be the intention. If, on the other hand, he goes out intending to use the screwdriver to commit burglary, but takes his son, who is innocent, with him, and tells the son to put the screwdriver in his pocket, the father would, rightly, be guilty of the offence under subsection (1) without any amendment. It all comes down to the circumstances.

The offence under subsection (2) of the new section 28 is different from that under subsection (1) since it does not depend on an intention on the part of the possessor to use the article in order to commit crime. But in this case also the subsection will work without any amendment. If a person has an article made or adapted for use in larceny, etc. such as a skeleton key, in his home, and if he goes out leaving the article at home in his wife's possession, then the husband is likely to be liable because the rule as to constructive possession will apply, but there is no need to refer expressly to the rule. Of course his wife — assuming that she is not an innocent party — might also be liable for the offence, but this will depend on the circumstances and the ordinary rules as to accessories to offences, and there is no need to make special provision for such a situation.

There are many offences of possession of articles for criminal purposes. For instance, the Misuse of Drugs Act, 1977, contains references to possession of controlled drugs and possession of controlled drugs for sale or supply, in sections 3 and 15 respectively. Possession is not defined in that Act. Further examples may be found in section 4 of the Explosive Substance Act, 1883, and in section 27A of the Firearms Act, 1964, as inserted by section 8 of the Criminal Law (Jurisdiction) Act, 1976. There sections provide for offences in connection with the possession of explosives or firearms, and again no definition of possession is provided in these Acts. Two other Bills which the House recently passed, on [362] videos and on incitement to hatred, similarly contain references to possession but no definition.

There is a very good reason for this. The courts are well used to applying the concept of possession to circumstances of particular cases, including, for example the case where the owner of a car is charged with possesion of a kit of burgler's tools which has been found in the car and which may or may not have been put there by somebody else with or without knowledge or suspicion on the owner's part. But any attempt to define possession in legislation is fraught with dangers: the twin difficulties of drawing a definition so wide as to include unwanted cases, and drawing it so narrow as to exclude desirable ones.

In every case, the question whether and how far constructive possession is sufficient depends on the purpose and construction of the enactment. I am quite satisfied that possession is best left undefined so that the court will have no difficulty in applying the concept of possession to the particular facts of each case.

Mr. Kavanagh: I accept the Minister's very full reply on this. I accept also, that the interpretation section may have been a more appropriate area in which to have this amendment. I just want to say again that while the Minister has stated on several occasions that it is best left to the courts to decide, the Law Reform Commission did not feel that was so when dealing with their interpretation of constructive possession. Deputy O'Keeffe had pointed out that decisions in court had sometimes confused rather than clarified the position. Therefore, I took the opportunity to propose an amendment in this area so that the Minister could, through her advisers, put in an interpretation that would at least reduce the confusion if not completely remove it.

Amendment, by leave, withdrawn.

An Ceann Comhairle: Amendment No. 1a is in the name of Deputy Pat [363] McCartan. Amendments Nos. 2 and 2a are alternatives and amendment No. 2b is related to amendment No. 2a. I am suggesting, therefore, that we discuss amendments Nos. 1a, 2, 2a and 2b together, by agreement. Is that satisfactory? It must be clear that if amendment No. 1a is negatived amendment No. 2 cannot be moved.

Mr. McCartan: I move amendment No. 1a:

In page 2, lines 17 to 29, to delete subsection (1).

The amendment proposes to delete in its entirety subsection (1) of the proposed new section 28 of the Larceny Act, 1916 which we are seeking to insert by means of section 2 of the current Bill. I was prompted to do this having regard in particular to some of the questions raised by Deputy O'Dea on Second Stage, wondering why there was a difference to be drawn between a person found in the circumstances under subsection (1) and subsection (2). At the conclusion of Second Stage I asked the Minister to address this particularly in the interim and he circulated a memorandum to that effect, explaining it. I am not entirely convinced by the reasons advanced by the Minister. We should try to tease this out a little more at this stage.

I do not see why there should be a difference between a person found at his or her abode or found abroad without lawful authority in possession of goods capable of being used to commit a crime within the context of this Bill. We should be at least intending in both circumstances to address and deal under the law with a person who without lawful authority or reasonable excuse is found in possession of an implement or weapon capable of being used for the purposes of committing an offence, and that should apply whether it is in the home or abroad. The Act allows for possession with lawful authority, on the one hand, and — or reasonable excuse. In other words, if a person is found at home with a screwdriver — borrowing from the Minister's [364] reference in the previous amendment — surrounding circumstances that would clearly be available to the person as a defence. For that reason I think we should be in no difficulty.

I propose the deletion also because I think it would help to avoid confusion. The issue arose in the context of another Bill we were discussing here where we were attempting to address the question of possession. My colleague will have to help me recall it. It was last week when we had something like five different categories of circumstances, exception and excuse being allowed, for possession of weapons. It was under the Firearms and Offensive Weapons Bill, section 5, where there was a complete hierarchy of order being established for the purposes of possession — being found in a public dance hall, or place of resort, then a different standard with regard to a different implement if it was abroad generally and a different standard for different implements if it was in the home. The whole section was completely and utterly tied up in knots of reasoning, exception and otherwise. I made the point then that in this type of legislation we should try to keep matters simple and straightforward and that there is nothing wrong with the general approach of one rule applying right across the board in whatever circumstances, be it in the home or abroad as in this context or in the context of the Firearms and Offensive Weapons Bill, in the context of the dance hall, place of resort, public place or home. I made the point that we have the general rule that possession of offensive weapons or weapons capable of being used in offence should be equally treated, with the saving provisos, obviously, that the person always has the right to claim lawful authority on the one hand or reasonable excuse on the other. Clearly a person in his or her own home with an implement of domestic appliance or of handiness, such as the screwdriver, has no difficulty in establishing lawful authority or reasonable excuse. We should not be unduly worried. Members of the Garda are not going to go into people's homes, confront them and ask about a [365] screwdriver found in the pantry, the toolbox or wherever. It would be ridiculous.

However, suppose, for example, a person is pursued off the street at night, that he or she makes the sanctuary of the home but has in his or her possession a screwdriver, having been abroad for the purpose of committing an offence. How can that person be dealt with? The officer who has been in pursuit is not in a position to say whether the person was in possession of the implement because there had been no opportunity to search or frisk down or find out what was concealed under the coat or in the pocket. If we provide for entry without warrant as proposed in the Bill the person is searched there and then and if he is found to have a pickaxe, a crowbar, a screwdriver or any other weapon of offence, is he to be dealt with under subsection (1)? I submit that nothing can be done in regard to him because he is now at the place of abode.

I think the better way is to deal with this on one general principle, recognising clearly that the person at home in normal circumstances has a cast iron excuse or absolute authority for possession of these implements and has no worries.

The Minister dealing with the Firearms and Offensive Weapons Bill talked about the need to recognise the constitutionality of a person's right in the home. There are balances in all these rights under the Constitution. If we want effective legislation to work in this area we should ensure that the balances are drawn towards legislation that will work. Again I am concerned under this section that the way we are relating the different circumstances and standards that would then apply will lead to confusion. It will lead to opportunities for persons who, seeking to evade justice under the Bill, will be able to play havoc or play around with what is available to them under this Bill. In moving this amendment I advocate simplification and a process that will recognise fully and protect absolutely the legal and constitutional rights of any person found in the home.

Mr. O'Dea: As Deputy McCartan has stated, rightly, I raised this question with [366] the Minister on the Second Stage debate and on 14 November I received a letter from the Minister which I assume has been circulated to other people who participated in the Second Stage debate. The letter states, and I quote:

The point on which Deputy McCartan sought clarification was in relation to the distinction between subsections (1) and (2) of the new section 28 of the Larceny Act, 1916. Subsection (1) applies to possession, for use in larceny, burglary, etc of an article of any kind (whether specifically made or adapted for such use or not). Thus it is the intention of the possessor which is the critical issue, and accordingly a prosecution under this subsection will usually depend for success mainly on the circumstances in which the accused was found in possession. Subsection (2), on the other hand, is directed at the possession of articles the intrinsic nature of which is wrongful in that they are made or adapted for use in larceny etc. In this case it is the possession itself and not the purpose of the possessor that is in issue.

I take the Minister's point. As this is the first debate I have addressed where the Minister of State was involved in bringing forward legislation I congratulate her, at this late stage, on her appointment as Minister of State.

I thank the Minister for his letter dated 14 November 1989. I am 99.9 per cent happy but I am not 100 per cent happy, unfortunately, as a result of the Minister's letter. It would seem on the face of it that subsection (1) is designed to deal with people who are in possession of weapons that are not specifically made or adapted for use in crime with the intention of using those weapons for the purposes of house breaking, etc. That seems to be the obvious interpretation of the section but it is not 100 per cent clear. If it is the Minister's intention that the subsection be designed to deal with that situation it would be much simpler to say that. We have provided for it in the other legislation to which Deputy McCartan referred, namely, the offensive weapons [367] legislation where we are dealing with the possession of weapons with intent to do something. There is no reference to intent in subsection (1). I take the Minister's point that a person who is in possession of any article “for use in the course of” means possession with intent to use. I would much prefer if the term “intent” was inserted so as to make the section clear without any shadow of a doubt.

In relation to the amendment proposed by Deputy McCartan — I have had the opportunity to see it only now — if I read it correctly he proposes to delete the entirety of subsection (1). If the amendment is accepted section 2 would then read:

a person who is, without lawful authority or reasonable excuse, in possession of any article made or adapted for use in the course of or in connection with—

(a) larceny or burglary, or

In other words, there would be nothing to deal with people who are in possession of articles not made or adapted for use in larceny or burglary but with that intent, whether they were at home or abroad.

According to the Minister's letter of 14 November 1989 and the section as it stands, a person can be in possession of any amount of weaponry to which he would not normally have access or have any use for with full intent to use those weapons in the course of larceny, burglary or housebreaking provided he does not take them out of his own house. The only weapons which a potential housebreaker can have without specific intent are weapons which are made or adapted for use for the commission of a crime. Perhaps Deputy McCartan who has vast experience in this area would be able to enlighten us.

In this context I do not know what is a weapon which is designed specifically for crime purposes. I can understand the concept of some otherwise innocuous weapon being adapted for use in crime, but I do not know what would constitute [368] something which is made specifically for the purpose of the commission of crime and nothing else. Almost every weapon we have mentioned, and almost every weapon to which reference was made on Second Stage, has some non-criminal use. Do we have a category of weapons which are designed and distributed specifically for use in crime and which have no other possible use whatsoever? I cannot think of any example but I would like to hear the Minister's comment. Perhaps Deputies who have more experience in this area of law than I would be able to point to such a weapon. I am simply making that point to illustrate the general difficulties in this section.

If the intent of Deputy McCartan's amendment is carried into effect — I can see the reasoning behind it — that would leave subsection (2) as constituting the entire section. A person can be found outside any property at any time of the day or night with a weapon, the possession of which he would not be able to explain but it would be obvious that he intended to use that weapon for housebreaking purposes and if it did not fall within that narrow category of a weapon made or adapted — whatever that means — for use in crime, then it would not be possible to subject that person to the legal process unless he had already begun the attempt to break in. While I take Deputy McCartan's point and I agree with what he says — I glanced at his Second Stage contribution on the offensive weapons legislation — I proposed something along the same lines. I do not think that to delete subsection (1) simpliciter would carry those very worthy objectives into law, there would still be difficulties. Even as the section stands there are difficulties.

I do not know if it is the purpose of subsection (1) to get at people who have innocuous weapons, weapons with an otherwise innocent use, with intent to use those weapons for the commission of crime. I do not understand why the word “intent” is not used. No matter how clear the section appears, we should make it clear beyond any shadow of a doubt. I do not understand the rationale behind a person being able to possess — once he [369] is not abroad — or allowed to be in possession of weapons which might have some non-criminal use but which he obviously intends to use for criminal purposes. I do not know what the expression “a weapon made solely for use in crime” means. They are the difficulties I have with the section.

I have been looking through the other amendments to other sections proposed and I can see good reason — while I sympathise with the thinking behind them — why many of them would have to be rejected. I am sorry I have to start on this somewhat jarring note.

It is time we dealt with receivers and handlers of stolen property. To deal with them the first prerequisite is effective clear understandable legislation where it will be possible to secure convictions. There are a number of areas in this section where there is a lack of clarity. If there are answers to my questions or if the legislation can be made clearer I would appreciate it.

Mr. Kavanagh: This section deals with possession of housebreaking implements, not weapons, but the section states “any articles” and where it refers elsewhere to other than “his place of abode” that is far too tight. I expect Deputy McCartan, in endeavouring to improve this Bill, has the right idea in asking for the deletion of this whole section, but I do not think that will happen. Therefore, it is necessary for me to hope that an amendment which extends the place of abode of any person to the place of his work should be included in the Bill.

Articles for use in the course of or in connection with larceny or burglary are many and varied, but in one industry, the construction industry, one would probably find more articles used in burglaries than most others. I believe — and I have been harping on this since this Bill was introduced — that rather than the old fashioned way of breaking down a door, breaking a window or jamming a door open, pieces of plastic and other devices are the more sophisticated ways of breaking into a house or premises. Carpenters, joiners, bricklayers, or labourers handle [370] articles which can be used in larceny or burglary and, therefore, “elsewhere than in his place of abode” is not sufficient. My amendment adds “or in transit to or from his normal or present place of work or at his normal or present place of work”. People in that industry do not work for long periods in a specific area except, perhaps, when they are working in a factory as part of a maintenance crew.

In the building trade people move from place to place and have to carry their tools of the trade. In my constituency quite a large number of people travel to Dublin to various building sites — at least they used to when there was a lot of building taking place, but that has decreased in recent years. Nevertheless, it is the tradition that three or four people travel in the same car and put their equipment in the boot. Their work may bring them to a different place every day. I ask the Minister to accept this amendment if she does not accept the one in the name of Deputy McCartan. She should extend “abode” to “place of work and passage to and from work” because it is quite likely that these many and varied articles could be found in the transport used to go to and from work.

The section relates to possession of articles for use in the course of a burglary, but it should clarify that it is only operative where there is evidence of the accused being involved in a crime. This would obviate the need for Deputy McCartan's amendment. Members on all sides have expressed doubts about the section and if the Minister pursues the line taken in the Bill, it would be reasonable to accept my amendment. Indeed, section 2.28 (1) should be deleted.

Mr. Flanagan: There is a cumbersome element in section 2 and I hope the Minister will work out a compromise to the points made by the proposers of the amendments. Having listened to Deputies McCartan and Kavanagh, I am not sure whether their amendments will get round the apparent difficulties. If Deputy McCartan's amendment was accepted there would be an extraordinary loophole [371] in so far as the articles to which the Bill refers under section 2 (2) must be made or adapted. However, certain articles need not necessarily be made or adapted to suit a larceny. If we accept Deputy McCartan's amendment it would entail making a deletion in line 32 for which we have not catered.

On the question of strict liability, under subsection 28(1) the onus appears to be on an accused when he is out of his residence carrying these implements. Notwithstanding the statement in the Minister's letter, the intent is not adequately covered. Under subsection 28 (1) if a person has a particular article outside his residence or place of abode he is clearly in difficulty. Previous speakers laid emphasis on the question of firearms legislation and offensive weapons but we are not dealing with firearms and we may not be dealing with offensive weapons. What about a person who has a set of 40 or 50 keys on his person outside his place of abode, where it can be proved that he has no connection with a security business and does not have authority to have such articles in his possession? We should not run the risk of confusing “articles” and “offensive weapons”. It is regrettable that there is not a definition of “article” in the Bill. Does “article” cover all contingencies? What about a person outside his residence on a summer's night in possession of a woollen balaclava? Will that person be charged under this section?

Between now and Report Stage the Minister should tease out this point further. Deputies have raised a valid point in that under subsection (2) there appears to be the defence of “lawful authority” and “reasonable excuse”. These definitions can only be judged on their merit and yet a person charged under subsection 28(1) does not appear to have that safety valve which, perhaps, should apply. We have not addressed the problem by virtue of an amendment which would be suitable to the circumstances, nevertheless the Minister should consider allowing the defence of “lawful authority” or “reasonable excuse” to a person found in possession of articles outside his [372] place of abode or residence. Perhaps the Minister will clarify why a person who may be in possession of an article for use in the course of or in connection with a larceny or a burglary does not have the defence of “lawful authority” because the burden of proof is such that the intent must be taken into consideration whereas, under the strict liability clause, there is no clear definition or need to define a particular intent. The Minister's letter has not adequately covered that point.

One could say that any conceivable article could be used in the course of a larceny or burglary. Somebody outside his place of abode with a torch or flash-lamp could be in difficulty under subsection 28 (1) because, clearly, a torch or a flash-lamp could be used in the course of a larceny. I think we should seriously consider allowing the defence of lawful authority irrespective of where the person is. This tends to defeat what the Minister is attempting to introduce in the proposed section 28 (1). Unfortunately, I do not go along with Deputy McCartan's amendment because that can only be considered by amending the proposed section 28 (2) as well, and deleting the words “made or adapted”. Perhaps we should consider that angle before enacting the legislation.

Mr. J. O'Keeffe: Deputy Flanagan has crystallised the discussion. The word “article” has not been defined and the Minister and her advisers might consider whether there is a need for such a definition. As Deputy Flanagan has pointed out so graphically, are we talking about balaclavas or about flashlamps? This needs to be looked at.

Second, on the question of intent, how do you prove it? How does the defendant, who may have a reasonable excuse, mount that defence? It seems that the concept is of strict liability and there does not appear to be a possibility that the accused could prove in court that he had a reasonable excuse. The Minister should accept that we have legitimate concerns which have been articulated by Deputies McCartan, Kavanagh, and O'Dea.

[373] Unless the Minister can put our minds at ease at this stage, I suggest that the best course of action is that the Minister makes the Department aware of our views so that they can look at the section further with a view to coming back on Report Stage with amendments that she might consider advisable in the light of our discussions.

Mr. O'Dea: I do not wish to hog the debate, but I will reply very briefly to some of the points made. I hope Deputy Flanagan was not implying that there was some confusion in my mind between this legislation and the firearms and offensive weapons legislation.

Mr. Flanagan: I was not.

Mr. O'Dea: When I mentioned the firearms and offensive weapons legislation, I was referring to the fact that possession of various implements and weapons is dealt with in that Bill. In this Bill we are dealing with possession of housebreaking implements and I was comparing the way the concept of possession has been dealt with in both Bills. I can answer Deputy Flanagan's point as to why the defence of lawful authority or reasonable excuse is not allowable under this subsection. According to the Minister, subsection (1) refers to a situation where a person is in possession of a weapon with intent to use that weapon for criminal purposes. In that situation, it would be totally illogical to talk of lawful authority or reasonable excuse. One could not have lawful authority or reasonable excuse if one was in possession of a weapon with the intention to commit a crime.

I can understand the reasoning behind Deputy Kavanagh's amendment. He made a very good contribution but unfortunately, I do not think that Deputy Kavanagh's amendment would work on account of the Minister's interpretation of subsection (1). In subsection (1) a person must be away from his abode and in possession of a weapon with intent to commit a crime. I made the points that if the person is at home and has such a [374] weapon and intends to use it to commit a crime, he should also be subject to the criminal process. If Deputy Kavanagh's amendment were to be accepted a person could, with immunity, go from his home to his place of work in possession of a weapon with the intent to commit a crime. I do not think the amendment would work. I thank Deputy Kavanagh for his contribution and I understand the reasoning that underpins his amendment.

Mrs. Geoghegan-Quinn: This section sets up two new serious offences involving the possession of articles in connection with larceny and related crimes. The new offences replace a range of offences involving possession of burglarious implements, etc., under section 28 of the 1916 Act, as amended, and under section 4 of the Vagrancy Act, 1824.

Section 4 of the Vagrancy Act, 1824, makes it of an offence for a person to have in his or her custody or possession any picklock key, crow, jack, bit or other implement with intent felonously to break into any dwellinghouse, warehouse, coach-house, stable or outbuilding. The maximum penalty for the offence is three months' imprisonment, and the section also provides for the forfeiture of the implements involved. The offence, therefore, applies to possession of such articles at any time and in any place.

A related provision in the Larceny Act, 1916, is section 28 which deals with possession of such articles by night only as an offence and imposes a maximum sentence of five years in the case of a first offence and ten years if the offender has been previously convicted of a similar offence or of any felony. As was indicated on Second Stage, the provision in section 2 of the Bill largely follows the Law Reform Commission's recommendation in their 1985 report on Vagrancy and Related Offences. It updates the law considerably on the offences of possession of housebreaking implements and other items connected with fraud or blackmail.

Subsection (1) of the new section makes it a felony, punishable by up to five years' imprisonment, for a person to [375] be in possession, elsewhere than at his or her place of abode, of any article for use in the courses of, or in connection with, a range of larceny-related crimes. These are: larceny itself, burglary, extortion and blackmail, under sections 29 to 31 of the 1916 Act; obtaining by false pretences under section 32 of the 1916 Act; and taking a vehicle without lawful authority under section 112 of the Road Traffic Act, 1961.

The type of article involved in an offence under this subsection could be anything from, say, an ordinary household or work object, or even a document, to a device specifically made for forcing open doors or windows. There is, however, an onus on the prosecution to show that the accused had the article in question for use in the course of or in connection with one of the listed offences; and of course this subsection, by contrast with subsection (2), specifically excludes possession in one's place of abode from the scope of the offence.

There is almost a limitless number of ordinary items of everyday legitimate use which can, without modification, be used, as Deputies have said, for nefarious purposes. Many people carry bunches of keys with them on a regular basis, but where a person is found in a car park with a key ring holding a variety of car keys, none of which belongs to a car which he or she owns, that must surely give rise to suspicion that he or she has them for use in connection with taking cars without lawful authority, in other words, car theft. If the prosecution in such a case can satisfy the court that he or she did have them for that purpose, then he or she can be convicted under this section. Similarly, a stiff plastic credit card can be used for opening certain types of door locks, but a prosecution has no hope of succeeding unless a person is found in possession of such a commonplace object in circumstances which the prosecution can convince the court were suspicious enough that the only inference to be drawn was that it was in that person's possession for just such a purpose.

Subsection (2) of the new section 28 [376] makes it an offence to be in possession, without lawful authority or reasonable excuse, of any article made or adapted for use in connection with any of the larceny-related offences listed in the subsection.

The offence created by this subsection differs in a number of important respects from that created by subsection (1). First, it applies to articles made or adapted for use in connection with one of the listed offences. Second, possession need not be outside of the possessor's home for a prosecution to succeed. Third, a prosecution will not succeed unless it is shown that the accused did not have lawful authority for the possession of the articles and any excuse offered by the accused is not considered reasonable by the court. Deputy Kavanagh is right, we are not talking about weapons, we are talking about articles. Thus it will be possible under this subsection to prosecute for possession of documents relating to a false charity, or a device specially made for extracting the barrels from car locks, or a set of lock picks or skeleton keys. In fact, one of the legal experts in the Department has said that he has seen an implement the only purpose of which was to extract coins from a telephone meter. That answers the questions raised by Deputy O'Dea in regard to what implements are used specifically for the purpose of committing crime. Perhaps Deputy McCartan has seen in the course of his work many other articles that are specifically adapted——

Mr. McCartan: Professional work.

Mrs. Geoghegan-Quinn: I mean professional work, of course. In line with the recommendations of the Law Reform Commission the effect of the subsection is that there will be an onus on the accused to give an explanation of these items. In other words, he or she will be under an evidential burden to adduce sufficient evidence to raise an issue as to the innocence of his or her possession. If the accused raises a genuine issue as to his or her lawful authority, or reasonable excuse for the possession, it will be for the [377] prosecution to prove beyond reasonable doubt that there was no such authority or excuse and the reasonableness of any excuse offered by the accused is a matter to be decided by the court or the jury.

The onus of proving that there was lawful authority or reasonable excuse will not — in contrast to provisions in other legislation regarding possession of offensive weapons in public places — rest on the accused. Thus, if the prosecution adduces evidence of lack of lawful authority or reasonable excuse, it will not be necessary for the accused to prove, even on the balance of probabilities, that he or she did have such authority or excuse in order to secure an acquittal; he or she need only cast reasonable doubt on the prosecution's evidence.

The effect of Deputy McCartan's amendment No. 1a would be to delete a crucial part of the new offence of the possession of articles. The new subsection (1) is designed to give effect to the recommendation of the Law Reform Commission — in their report on Vagrancy and Related Offences — that possession of any article for the purpose of burglary, theft, etc., should be an offence. It updates the existing provision in section 28 (1) of the Larceny Act, 1916, which — though not saying so specifically — is understood to exclude possession of such articles at home. Under the new subsection (1) it is the intention of the possessor, which is the critical issue here, and accordingly, a prosecution under the subsection will usually depend for its success on the circumstances in which the accused was found in possession of the offending items.

The new offence under subsection (1) will apply only to possession outside the home because to have it apply also to possession within the home would unduly change the character of the offence. As I said on amendment No. 1, the offence under subsection (1) consists essentially of going out with an article to be used in committing an offence within a reasonably short time.

If the new subsection (1) was to be deleted then the only available offence would be that under subsection (2), of the [378] possession of articles made or adapted for the nefarious purposes specified. Accordingly, the possession of ordinary household items such as knives, screwdrivers, hammers, etc., with the intention of using them for larceny, etc., would not be an offence. That is totally unacceptable.

Equally unacceptable is Deputy Kavanagh's amendment No. 2 which would weaken the subsection completely. If amendment No. 2 were to be accepted then it would not be an offence to have an article with the intention of using it in larceny or other crimes if the possessor was at work or on his or her way there or back. The purpose of Deputy Kavanagh's amendment appears to be to protect the tools of a person's trade. But nobody should be immune from prosecution if he or she intends to use those tools for larceny or burglary rather than for their lawful purposes and it is possession for such use that constitutes the offence under the subsection.

Turning to Deputy J. O'Keeffe's question regarding there being no definition of “articles” in the section, I should say the existing provisions which section 2 replaces, that is part of section 4 of the Vagrancy Act, 1824 and the present section 28 of the Larceny Act, 1916, do contain a list of articles — picklock key, crow, jack, bit or other implement. It is not the intention to use similar wording in the new section because the existing definitions clearly are out of date. Deputies made the case originally that the range of implements, documents and so forth which can be used today to carry out unlawful activities covered by the new section — larceny, burglary, blackmail, obtaining by false pretences and the taking of cars — has been almost limitless in the eighties. The omission of a definition is deliberate in order to ensure that genuine miscreants cannot use hair-splitting arguments as to what is or is not covered by the new provision in order to escape justice.

Government amendments Nos. 2a and 2b are designed to make an addition to the list of criminal purposes for which the possession of an article will be an offence under both subsections (1) and (2) of the [379] new section 28. Section 113 of the Road Traffic Act, 1961 makes it an offence to interfere with the mechanism of a stationary vehicle or to get into or onto such a vehicle without authority. The effect of the two Government amendments is to include in the new offences under section 28 of the Larceny Bill possession of an article respectively for use in, and made or adapted for use in, an offence under section 113 of the Road Traffic Act.

Deputies O'Dea and Flanagan in particular have mentioned section 2 (1) where it is stated:

A person who is, when not at his place of abode, in possession of any article for use in. . . .

Both Deputies put the point very forcibly that the words “with intent” should be included in that they might serve to tighten the provisions, rendering it easier for the courts, prosecutors and lawyers generally to interpret them. The advice of the parliamentary draftsman to the Minister is that the words “with intent” are included in the wording in the section. But, in the light of what both Deputies have said, and bearing in mind the intent of Deputies on all sides of the House — which is to ensure good legislation — I will have the drafting re-examined, as Deputy Flanagan requested a moment ago, to ascertain whether this apparent difficulty can be overcome in some way between now and Report Stage. The Minister will be here on Report Stage, when, no doubt, he will be able to inform the House.

Mr. McCartan: I fully take the point made by Deputies O'Dea and Flanagan. In pursuing my amendment I would be agreeable to having deleted the words “made or adapted” at line 32. That was an oversight on my part. When Committee Stage was ordered originally, the Minister's memorandum had not been circulated or received. I think it arrived on the 14th and the previous week the schedule of business for that week was agreed. Therefore, it was necessary to have amendments tabled. At that point, [380] with a view to opening up the debate — following on what had been said on Second Stage — I tabled this amendment to address the problem. I have to press this somewhat further.

Clearly my amendment simply to delete subsection (1) would not have been a good one were we simply to confine subsection (2) to an article made or adapted for use in the course of or in connection with an offence. I stand fully corrected there. I would be happy to allow those words to be deleted. If we approached the section in that way we would have a much better Bill in that we would then be laying down the one single standard in regard to all articles in all circumstances. If the Minister presses the present regime — that there be a different standard with regard to an article found in the home as opposed to one found outside the home — then we should take the next logical step and accept Deputy Kavanagh's well reasoned amendment, that there should be a furthere standard applied to a person at work or moving to and from work.

I fully understand and accept the difficulties encountered by people who work inordinate shift hours, often at dirty, dusty, mucky jobs, being found at all kinds of hours, having the mark and disorder of their job, particularly those coming from a construction site, also carrying over their shoulder a bag of tools, being confronted by a disgruntled officer, being made to answer for the circumstances in which they are found either in a police station or subsequently in court. Those are circumstances to which we should have a little more regard because workers are to be found at all hours, in all places, moving to and from their workplaces.

We should have as much regard for a person working as for a person at home, and that is what Deputy Kavanagh is proposing. The simple suggestion of the Minister that the intent clause will be an adequate protection simply will not work. I take her point that the amendment will open up a loophole, but that loophole has been opened in any event. The concept of [381] possession of articles for the commission of crime is setting different standards in different circumstances. I make the argument again that there should be a universal test or provision should be made for all the circumstances that can be reasonably raised. Certainly in this context the case of a worker moving to or from his place of work is very genuine.

The Minister has correctly pointed out that there are differences between the two sections. The more she makes that point, the more she makes my case that there should not be such differences. The suggestion has been made that under subsection (1) proof of intent is needed. Deputy O'Dea is absolutely right about this, there is no reference to it. Drafting should not be just confined to the intent but the whole issue as I have raised it should be considered. The Minister might accept that there might be an argument for a single universal testing standard and that there is no need for this differentiation. If the Minister would clarify that I would be happy.

Amendments Nos. 2a and 2b in the Minister's name are sensible, although it could be argued that they are not necessary in some regards. Section 112 of the Road Traffic Act, 1961, deals with the taking of a motor car. I would give a small piece of information to Deputy O'Dea. There is an implement known as a barrel popper, the only device I can think of that has one function only and that is to unlock the barrel of a car. The basic implement is the brace which is placed in a fixed position so that it can be used for that purpose. It is the only implement I can think of that has a function in crime only.

Mrs. Geoghegan-Quinn: I knew the Deputy had greater experience than the rest of us.

Mr. J. O'Keeffe: We all learn something every day.

Mrs. Geoghegan-Quinn: I am learning a lot.

Mr. McCartan: The barrel popper is [382] well known in the city of Dublin and, I am sure, elsewhere. Paragraph (c) will deal adequately, with this. I would say one word of caution. Section 113 deals with a person attempting to get on or into or interfere with a mechanism. I can only think that the reason a person would want to get on or into a mechanism is to commit a crime under section 112, or alternatively to steal. Larceny is dealt with in section 28 and taking is dealt with in section 112. Therefore I wonder if we need section 113 at all.

The reason I raise this matter is that section 113 deals with a summary offence which can only be dealt with in the District Court and the maximum penalty imposed was three months but is now 12 months — maybe it is six months, I am not too sure; perhaps this could be clarified. We are providing under this section that possession of a weapon to enable the commission of an offence under section 113 could attract a penalty of five years. There is a degree of contradiction there. We are providing, in the case of a substantive offence, a far lesser penalty than could be provided for in the case of possession of an article to commit the offence. All eventualities would be covered under paragraphs (c) or (a), except perhaps the element of interfering with a mechanism. That is merely by way of observation and it is a matter that maybe the Minister could consider.

Our approach in this instance should be towards a simplification of the law. I can see no reason there is not a universal testing standard. That could easily be achieved under subsection (2), the operative subsection, by agreeing that the words “made or adopted” be deleted. I would ask the Minister to consider that before Report Stage.

Mr. Stafford: I think that Deputy Kavanagh and I are the only two nonlegal people here today.

Mr. Kavanagh: And the Minister.

Mr. Stafford: Of course, I had forgotten. She was handling her brief so well I presumed she has a legal background.

[383] Mr. McCartan: It just shows that these matters are very easily dealt with.

Mr. Stafford: The barrel popper which Deputy McCartan mentioned is also used for legal purposes. For example, financial companies who attempt to seize cars use them regularly. If garages for some reason cannot get keys for cars, they pop the barrel with this implement and then put in a new barrel. It is almost impossible to find one implement which is not used for legal reasons. I accept that the ideas behind these amendments are very good but I am concerned about anything that would interfere with the whole thrust of the Bill. I take this opportunity to thank the Minister for bringing the Bill before the House and for discussing it in this fashion.

These amendments have a direct relationship to the type of problems that arise in a constituency like mine. People who break into houses destroy the standard and quality of life. Probably the best way to break into any house is to use a sledge-hammer to knock down the door. As Deputy McCartan said, workers might carry tools on their way home from work. If someone is going down the road at 1.30 a.m. with a bag of tools and a sledge-hammer, he might say he is on his way to work and it would be difficult to prove otherwise.

In many parts of my constituency there are very few cars to be seen. This is not because the people cannot afford cars but they just cannot leave them outside their houses and they cannot allow visitors to leave their cars there either. I wholeheartedly support any law which is brought in to deal with these problems. I hope this section, as it is put forward by the Minister, is agreed to and that the Bill is passed as soon as possible.

Mrs. Geoghegan-Quinn: As I have already said, in regard to the points raised by Deputies O'Dea and Flanagan about the use of the words “with intent” for use rather than just any article for use, we will consider that matter between now [384] and Report Stage. As regards the question raised by Deputy McCartan on section 113, we will have a look at the inconsistency of penalties, but I am sorry I cannot accept Deputy McCartan's former proposal.

Mr. Kavanagh: I assume the Minister was not convinced by the amendment in my name——

Mrs. Geoghegan-Quinn: No.

Mr. Kavanagh: ——but I am not convinced by her argument. It is difficult to understand how a person can be a criminal at home and not at his work or vice versa. I believe the work is an extension of his home because a person would be at home most of the time if he did not have job and a person can be approached at work. In my opinion, this section is far too tight and I cannot accept the Minister's argument.

Further on the question of possession, will all the occupants of a car, for instance, some of whom may be criminals and some who may not, be considered under section 28(2) to be in the possession of goods which may be in the boot and about which some of them may or may not know? Will the driver of a car who gives a lift to a person who throws a bag of these articles or weapons into the back of the car be regarded, if he is stopped by a garda, to be in possession of these articles?

Mrs. Geoghegan-Quinn: The short answer to that question is, not necessarily. It depends, of course, on the knowledge of the person concerned. I want to say in reply to Deputy Kavanagh that the proposed section 28 (1) includes articles in the possession of a person outside the house or home and the proposed section 28 (2) refers specifically to possession in the home. The reason it is important to include this provision is because, as I said earlier, under the 1916 Act it has been interpreted as to exclude possession in the home.

Mr. McCartan: I am sorry I have not [385] convinced the Minister of the case I was trying to make but on the basis that I have to look at the drafting of my amendment between now and Report Stage I intend to withdraw the amendment. However, I want to indicate that I intend to bring it back in substantially the same form on Report Stage. There should be an amendment to subsection (2) to delete the reference to “made or adapted” so that there will be one universal standard and test which can be applied in these circumstances.

Amendment, by leave, withdrawn.

Mr. Kavanagh: I move amendment No. 2:

In page 2, line 18, after “abode” to insert “or in transit to or from his normal or present place of work or at his normal or present place of work”.

Amendment put and declared lost.

Mrs. Geoghegan-Quinn: I am advised that it would perhaps be better if I do not move amendments Nos. 2a and 2b until such time as we can come back and have a look at this provision, as I promised Deputy McCartan.

Amendments Nos. 2a and 2b not moved.

Mr. J. O'Keeffe: I move amendment No. 3:

In page 3, line 11, to delete “may” and substitute “shall”.

In some ways this may not appear to be a very important amendment but I should like the House to reflect on the proposal I am making. Under the Bill as presently drafted the court has discretion as to what should be done with any article for the possession of which an accused person has been convicted. The court has the discretion as to whether an article should be forfeited and destroyed or disposed of in such manner as it may determine.

It seems to me that there is hardly a case for such discretion. We should make [386] it clear that the court “shall” either order the article to be forfeited, which would seem to be the sensible thing, and destroyed or if in certain unusual circumstances the court decides that that is not the proper course of action it has the right to order its disposal in such a manner as it may determine. If a person is convicted of the possession of an article I do not think there would be any case where the court would not order such an article to be forfeited. The court has the discretion to either order the article to be destroyed or disposed of in such a manner as it determines. I should like to hear the Minister's opinion as to whether there is any logical answer to the case I am making. It seems to me that in all such circumstances where there is a conviction for the possession of an article used for felonious purposes that article should be forfeited and the discretion should be left to the court as to what should be done with it.

Mrs. Geoghegan-Quinn: I am opposing this amendment, the effect of which would be to limit the range of a court's discretion in responding to offences under this section of possession of articles. It would mean that in every case where a person was found guilty under the section the court would be obliged to order the forfeiture and destruction or other disposal of the articles in question. This sounds good on the face of it but there are persuasive overriding arguments as to why that should not be the law, arguments which I will illustrate by an example.

Take the case of a person who is a welder by trade who owns his or her own gas welding-plant, consisting of a trolley for carrying the bottles of oxygen and acetylene, various pipes, valves and nozzles and all the other accoutrements of his trade, and who is found at the dead of night lurking with his equipment at the back entrance of a bank's premises, charged under subsection (1) of the new provision in section 2 of the Bill and quite rightly found guilty of possession of an article for use in burglary. Under Deputy O'Keeffe's amendment, the court must [387] deprive the offender of his welding-plant notwithstanding that it is his only means of earning an honest living. That alone might be considered by the court to be such a severe penalty that it might decide not to make matters worse by imposing a term of imprisonment or a fine. It is surely not just that society should punish a person for abusing his or her only means of livelihood by depriving him or her of that means. Apart altogether from the effect on the rehabilitation of the offender himself, it cannot serve the wider interests of society.

There is also the question of ownership of the article in question. The steel bottles in the welding-plant would be the property, not of the offender but of the industrial gas suppliers who are innocent of any involvement in the offender's crime. it is not right that, through the dishonesty of their customer over which they have no control, they should be deprived of their property by the inexorable operation of the law as Deputies O'Keeffe and Flanagan would have it.

There certainly will be cases where the articles in question should be forfeited and that is why this provision is in the Bill. To make forfeiture mandatory in all cases would be wrong in principle and could in practice even mean that, because of its draconian effect, juries might prefer to acquit in some cases rather than subject an accused to a mandatory punishment which they felt was far too severe in the circumstances.

I would direct the attention of Deputies to two Bills which have recently been passed by this House where the courts were given a power of confiscation. These are the Incitement to Hatred Bill and the Videos Bill. In neither of those instances is the court compelled to exercise the power in all cases: the word “may” was used rather than “shall”. It should be likewise in this Bill. It may set Deputy O'Keeffe's mind at rest if I say that it is generally accepted that a formulation such as this which confers a power on the court implies a duty to exercise that power in proper cases.

[388] Mr. J. O'Keeffe: I am a bit amused at the graphical description given by the Minister of a welder who is found lurking behind a bank in the dead of night and who will need his equipment thereafter for the purposes of carrying on his honest business. I am not sure that the Minister intended to convey the impression that a person lurking behind a bank premises in the dead of night with his welding equipment was carrying on an honest business there.

If we are talking about the severity of the penalty we are talking about somebody who has been convicted of an offence which carries a five year sentence. I accept that that is a maximum but it appears to me that the instruments which were being used, or the position which led to the conviction, should be taken out of circulation. The Minister referred to the fact that the person convicted may not have the lawful ownership of the goods and mentioned the ownership of gas bottles that an honest welder may have at the back of a bank. However, the section provides that the court, having made a forfeiture order, can either order the destruction or the disposal of the goods. I presume that is to cover the return of the gas bottles referred to by the Minister to the company that supplied them.

We have a lot of heavy material to cover in the Bill and I am satisfied to have raised this issue for discussion. I will consider the Minister's response and if I feel the point needs a further airing I will table an amendment on Report Stage. This is not an issue that is dreadfully serious because the court, in any event, has discretionary powers. Rather than prolonging the matter further I am prepared to withdraw my amendment.

Amendment, by leave, withdrawn.

Section 2 agreed to.


Acting Chairman (Mr. Wyse): I should like to point out that the House will now debate amendment No. 3a. Amendments [389] Nos. 5a, 6a, 7a, 7b, and 8a are consequential. Amendments Nos. 4, 6, and 7 are alternatives to amendments Nos. 3a, 5a, and 6a respectively, and amendment No. 8 is related. Therefore, I suggest, that the House take amendments Nos. 3a, 4, 5a, 6, 6a, 7, 7a, 7b, 8, and 8a together. Is that agreed? Agreed.

Mr. McCartan: I move amendment No. 3a:

In page 3, line 27, to delete “believing it to be stolen” and substitute “being reckless as to whether it was stolen”.

The central issue in these amendments represents the most serious of reservations and concerns that the Opposition have about the Bill. What is proposed in the amendments in my name, on behalf of The Workers' Party, and I believe in those tabled by Deputies O'Keeffe and Flanagan on behalf of the Fine Gael Party, is to the same end. We are dealing with the whole issue of mens rea, the intent that should ground a finding of guilt of a person charged with the handling of stolen goods. The Bill suggests that a person who handles stolen property knowing or believing it to be stolen property shall be guilty of a felony. The Minister has adopted the formula of requiring a person to be found, and held, by a court and jury to have either known or believed that the goods handled or involved in the commission of the offence were, in fact, stolen property.

On the other hand, we argue that that is the wrong standard entirely. We believe the element of recklessness as to whether or not the person knew or believed that the goods were stolen is an essential ingredient in any modern definition of the offence of handling stolen goods. Without such an amendment the law will, in fact, not progress one iota. The formula used by the Minister, that of knowing or believing, is merely repeating in essence what has been the law since 1916. That law has been found to be entirely unsatisfactory. I notice that the Minister is shaking her head furiously in disagreement. The [390] current law is well stated in the Law Reform Commission's report which, I must say, has been shamefully ignored and neglected by the Minister in the drafting of the Bill. On Second Stage we addresed that central, key issue. The Law Reform Commission worked exhaustively to analyse, understand and recommend, on their understanding and analysis of the existing law, in order to help us draft good working legislation.

The majority of the amendments I have tabled were prompted by the recommendations of the Law Reform Commission. Those recommendations were not only in summary form but in a Bill they proposed. The Workers' Party have borrowed from that detailed analysis and included their recommendations in our amendments. One thing we will obtain in this debate is a response from the Minister as to why the detailed and reasoned recommendations of the Law Reform Commission were ignored virtually seriatim. The commission, and the House, are entitled to know why the Government have adopted an entirely different approach. We are entitled to ask why the vast resources, so thinly employed and spread in the commission's offices, are not put to better use particularly when so many good documents are produced.

It is worth remembering that the commission provided a consultative paper, assembled a seminar of practitioners in the area to deliberate on the issue before ultimately producing their final report. Obviously, that report is poorly regarded in the drafting of the Bill. I should like to refer to the furious shaking of her head by the Minister when I suggested that the Bill as drafted was not an advance of the current law. Section 33 (1) of the 1916 Act states that a person would be guilty of the offence of receiving if he or she received goods knowing them to have been stolen. That provision was subjected to judicial interpretation over the years and the ultimate achievement of the statute of 1916, as interpreted, adapted and applied by the courts, is summarised in the report of the Law Reform Commission on receiving stolen property. The commission summarised [391] the current state of the law under the 1916 Act as follows:

38. In the light of these decisions [the decisions of the courts over the years in interpreting section 33 (1) of the larceny Act, 1916] the law in Ireland can be stated to be as follows:

(1) Nothing less than actual knowledge that the goods were stolen is sufficient to found a conviction for receiving stolen goods.

(2) Actual knowledge need not be direct; thus the alleged receiver need not have witnessed the theft of the goods.

(3) Since actual knowledge is essential, a belief that the goods were stolen falling short of such knowledge will not suffice. A fortiori mere suspicion that they were stolen will not suffice.

(4) Recklessness as to the provenance of the goods is also not sufficient to found a conviction in respect of stolen goods.

The Bill, admittedly, allows for the inclusion of the believing aspect that, perhaps, was not in the law to date. We have to consider whether that inclusion will advance the cause of those anxious to deal with the position of the receiver in court much, if at all. Let me first make the point that the cornerstone of the new definition in the Bill is “knowing” or “knowledge”. As we can see, this is full square with the definition contained in the 1916 Act. Knowledge is the essence. There is no doubt that when the courts and the lawyers get to work on that aspect of the definition they will simply borrow from and build upon what is already there and we will not, as I said, advance the cause for a modern definition in relation to this offence much, if at all, by relying on the concept of knowledge.

It is also clear, and this has been analysed in the Law Reform Commission report, that the formula of knowledge coupled with belief has in time been judicially interpreted as requiring a standard [392] of knowledge, such that the belief element slips to being of secondary or of no importance at all. The words in other jurisdictions, and this has also been analysed in the report, have been paraphrased or condensed to mean something approaching knowledge in all circumstances. In these circumstances belief becomes a matter of nothingness. For that reason I make the case that the Minister's definition will not achieve an advance in the law in this regard. A person will still be able without difficulty to stand in the dock to present the case that he or she did not know the goods were stolen. Under the law the standard will be subjective, whether or not the accused person can convince the jury that in the circumstances he or she did not know or did not have grounds for believing that the goods were stolen.

We are also aware from our law that the standard of appreciation of that knowledge is, in the current state of things, at a ridiculous level. I do not think any of us in this House can be happy with the judicial interpretations which have emerged during the years with regard to standards. The law says and the judge charges the jury that even if they do not believe what the accused is saying and that what has been said could possibly be true, then they should acquit. It goes further to say that even if the jury believe the accused, in advancing an explanation, is lying this of itself does not exclude the possibility of innocence or a possible innocent explanation. All of us would agree that the current law bends massively in favour of the defendant and makes it practically impossible, in glaring instances, to secure a conviction. We are trying to address that problem. Certainly the Law Reform Commission addressed the problem four square and recommended, without any difficulty, that the concept of recklessness should be included in any new Bill. They tried to address the problem in such a way that in court the accused would not be able to say: “Look, I got the goods. I bought them in the pub but I asked the person selling them to me at a ridiculously low price” — or in the unusual circumstances [393] — “whether they were stolen and I was assured that they were not. So, I was happy and took them home. I would not have done so if I had any doubts and I am asking the jury to believe me”. That is too common a scenario in receiving cases today.

We have to address this problem and the only way to address it is in the way recommended by the Law Reform Commission and that is there should be an element of recklessness. In other words, an accused would be answerable for the offence if he or she had no regard to all the reasonable circumstances in which the goods were obtained. In their report, the Law Reform Commission make the recommendation clearly and unambiguously, and we should have regard to it, on page 115, under the heading Summary of Recommendations, in paragraph 3, that the test of liability in the new offence should depend on whether the defendant knew or was reckless as to whether the goods were stolen. They go on to state in paragraph 4 on the same page that recklessness should be defined, so that a person acts recklessly if he consciously disregards a substantial and unjustifiable risk that the goods were unlawfully obtained and that the risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances, its disregard involves culpability of a high degree.

Therefore we, as legislators, in looking to the body we asked to work on this for us, cannot make the case that we have not been told clearly and unambiguously what standards should be applied in these cases. At page 117 of the report the commission set out the provisions which should be contained in a Bill on this area. They state that section 6 should provide that a person is reckless within the meaning of section 3 if (a) he consciously disregards a substantial or unjustifiable risk that the property he handles is unlawfully obtained, and (b) the risk is of such a nature and degree that considering the nature and purpose of the handler's conduct and the circumstances known to [394] him, its disregard involves culpability of a high degree.

Borrowing on that advice, grounded on an extensive examination not just of the law here and in England but the law elsewhere in other common law jurisdictions, the amendments I seek to promote to this section are for the following reasons. I believe we should extend the standard of culpability to include the concept of not only knowing or believing but, as I suggest in amendment No. 3a, also recklessness. Therefore my amendment would remove the words relating to believing them to be stolen and make it an offence for a person to handle stolen property knowing or being reckless as to whether they were stolen. This would leave out the area of belief and the subjective in these types of cases.

We then address this preposterous formula, as it now stands, that even if a jury disbelieve the account given by the accused they can consider other factors and can, and must in some circumstances, acquit, should those circumstances arise. We have to address this matter in a commonsense way and ensure that a jury at the end of the day, if they do not believe the account given by an accused, must convict. That is the essence of trial by jury, a jury of our peers of men and women applying commonsense to the facts within the parameters of the law.

If commonsense tells them that the circumstances and/or the excuse offered are unbelievable, the only logical conclusion is to convict. The law to date, because it allows for the belief element, allows for the subjective standard to be applied, then opens up this extra formula saying that if the jury, even though they disbelieve the accused, believe that what he or she is saying could be true, then an acquittal should follow. Even if the jury are convinced that the person is telling a lie, that is not enough to convict. I have always found that formula very welcome when defending a case. This is a formula that we could effectively run riot with. Experience shows that an accused rarely admits straight off to the charge of receiving and will produce defences, excuses, fairy tales and whatever else he can, in [395] the hope of acquittal. We have to take out the element of the belief, the avenue into the unbelievable. We have to take out the subjective standard and apply an objective standard of common sense based on what is reasonably possible and allow juries to address the facts in cases of receiving on a commonsense basis.

My consequential amendments include where necessary this substitution, taking out the belief element and putting in strict knowledge or recklessness in knowledge as to whether goods were stolen.

In amendment 8a I include a definition of “reckless” in the context of this legislation and I borrow heavily on what the Law Reform Commission indicate should be a definition of recklessness — which should be construed as to include a person who acts consciously to disregard a substantial and unjustifiable risk that the goods were unlawfully obtained. This puts every person on his guard in relation to people selling goods in unusual circumstances. The dishonest person who ultimately purchases or takes into custody goods will be answerable to the law where it can be shown that he was reckless or showed total disregard for the circumstances in which the goods were obtained.

This issue is essential to the Bill. The Minister should take on board this amendment which encompasses the views not just of The Workers' Party but of Fine Gael, the Labour Party and the Law Reform Commission. Otherwise we will not improve the law. The Workers' Party did not oppose the Second Reading of this Bill but we will have grave reservations about supporting this legislation if at the conclusion of Committee Stage we have not done something to put matters right. I urge the Minister to have regard to what is being advocated in these amendments which if accepted will improve the Bill.

Mr. J. O'Keeffe: There is a real danger that the Minister is opening an enormous excape hatch for receivers because of his [396] failure to adopt the approach recommended by the Law Reform Commission. The Bill as drafted appears to follow the approach adopted in the 1968 English Theft Act and we should recognise the difficulties in judicial interpretation to that Act. The Law Reform Commission report discussed these difficulties and quoted an observation on the section in the English Theft Act saying that sometimes one would think that the courts were trying to make a dog's breakfast out of the law on handling stolen goods.

In one line of section 22 of the UK Theft Act, 1968, they have interpreted the words “knowing or believing them to be stolen” to mean knowing or believing them to be stolen, which is quite ridiculous and so perpetuating the defect in the earlier law which the addition of the words “or believing” were designed to cure. In section 3 of our Bill, the same wording “knowing or believing it to be stolen property” are included. I am gravely concerned that by following this line of approach we will have the same difficulties bringing these godfathers of crime to book, these receivers who are making such a fortune out of crime.

It is relevant to point out that the Law Reform Commission addressed this question at great length. As Deputy McCartan said, they obviously did so because they go into the whole core of our approach in tackling receivers when we are deciding the basis on which convictions can be secured against them, what level of knowledge they are supposed to have had in relation to the goods being handled and so on.

The Law Reform Commission examined 12 different possible legislative strategies in dealing with that difficult question of the mental element. There is a whole range of issues which they dealt with from receiving without regard to the belief of the accused as to whether the goods were stolen, to an absolute obligation on the prosecution to prove that the accused was actually certain that they were stolen. Having considered the pros and cons of these different strategies, [397] the Law Reform Commission ultimately concluded, not without a lot of thought, debate and deliberation, that the test of liability in the new offence should depend on whether the defendant knew or was reckless as to the provenance of the goods. A satisfactory explanation has not been forthcoming as to why the Minister departed so radically from the approach recommended by the Law Reform Commission. Neither have we had an answer from the Minister to the criticisms in the Law Reform Commission report in relation to the definition, or the problems associated with the similar definition in the UK Theft Act. There is no great difference between having the section read “knowing or being reckless” and “knowing or believing or being reckless”. That minor difference could be worked out. The essential point is whether the Minister is prepared to accept that recklessness as to the ownership of the goods should be sufficient to constitute a mental element.

It is interesting that they have looked at this issue in the US. The model penal code in the US, at section 202, paragraph 2 (c) defines recklessness. The ultimate proposal of the Law Reform Commission is based on the definition of recklessness in the US draft penal code. We have to face the problem head on. I am not satisfied with the approach adopted here of not following the Law Reform Commission report. We have not had an adequate explanation as to why somebody who is reckless as to the background of the goods being handed to him should not be landed in the dock. That is the core of this Bill. My grave fear is that if the Minister does not take on board that proposal the receivers will be able to escape with their ill-gotten gains in the same way in the future as they have done in the past.

Acting Chairman: I think it would be feasible to bring in the Minister at this stage.

Mrs. Geoghegan-Quinn: In relation to the amendments that have been moved——

[398] Mr. Kavanagh: I have not moved mine yet.

Mrs. Geoghegan-Quinn: I only spoke about the ones that have been moved. If the Deputy wants, he can discuss his.

Mr. Kavanagh: We agreed to take all these together so it would be just as well for me to comment on mine. I am not going to take too long on this because what I have to say has been said by the previous Opposition speakers. We should remember what the Minister said on Second Stage. He said that this Bill largely follows from the 1987 Law Reform Commission report on receiving stolen property which recommended that the Larceny Act of 1916 be amended in order to address the serious difficulties being experienced in the prosecution of receiving offences.

I have to disagree that the Bill largely follows the 1987 Law Reform Commission report. Indeed, it largely ignores it, and it has been argued very cogently here that that is the fact. Given the general scheme of the Bill, the Minister had an opportunity to make some changes in that general scheme and that would appear to be the obvious thing for him to do. All he seems to have done is to pick very selectively from what was being recommended by these eminent people who were gathered together to make these recommendations. There is nothing in this Bill that a sensible judge and jury could not have dealt with under the existing legislation. I believe the Minister has missed a great opportunity as we are dealing with the core issue in the Bill, to deal with the new offence of handling.

The Law Reform Commission are being largely ignored. In that respect the Bill does not add up to very progressive legislation. I put down an amendment because I thought it was necessary to clarify the section. The section provides that a person who handles stolen property knowing or believing it to be stolen shall be guilty of a felony. At paragraph (c) of section 3 we find that believing property to be stolen includes thinking that such property was probably stolen. We extend [399] belief into actual thinking and, if people think nowadays, it appears to be a crime.

On Second Stage I instanced the fact that a lot of people read the small ads and articles for sale ads in the evening papers and there they see some bargains, particularly in the area of videos and televisions where they are told that something is in its original box and has never been used and it is about one-third the retail price. One may immediately wonder if this property is stolen because it is so cheap. When I was looking at this Bill and at the ads in the paper I even saw an advertisement for a snooker cue signed by that well known snooker player, Mr. Davis. It costs about £150 in the shops and one was recently for sale, brand new, in the articles for sale column at £25. I do not think one would go into Elvery's or Clery's or somewhere like that and buy a cue with that man's signature on it for £25, but I am sure if somebody could find some outlet selling them at £25 there would be great business done in them — either the signature was forged or one might think that the cues were stolen. Nevertheless we are invited, through our national newspapers, to buy goods which, if the prices are anything to go by, one would be inclined to think are stolen. Under the section I am endeavouring to amend, it will be an offence even to think that. I cannot really accept that we should put into our legislation that if one believes, one is also thinking something. That is stretching credibility too far. We often hear the term that something fell off the back of a lorry. If one even thinks that now, one is committing an offence under this Bill.

We are introducing a dangerous precedent. This Bill is going to go through more or less as it stands because the Government have the numbers. I believe the Minister should look at reasonable and well argued amendments from this side of the House and accept, where possible, that there is an argument and a reasonable case being made. In my view [400] a section is being introduced into legislation which extends believing into thinking. It is time to remove that. The whole world is opening up at the moment and the days when one's beliefs and thoughts in other areas were being questioned are gone. Let us not introduce the concept here that if one thinks, one also believes.

Mr. O'Dea: What Deputy Kavanagh is proposing is diametrically opposite to what Deputy McCartan is proposing. There are two sets of amendments to the general mens rea, the Fine Gael amendment and Deputy McCartan's amendment. If one does not accept that the definition in the Bill is sufficient to put receivers out of action then I submit — with no disregard for Deputies O'Keeffe and Flanagan — that Deputy McCartan's amendment is the logical one to discuss. Deputy McCartan's amendment would result in a situation where the criterion was either actual knowledge or recklessness. If the Fine Gael amendment is accepted the criterion would be actual knowledge or belief, and belief includes thinking or recklessness. I would suggest that the term “recklessness” includes believing and the expanded definition of belief that is to be found in the Bill. Therefore the Fine Gael amendment is, to my way of thinking, irrelevant. I say that with all due regard to Deputy O'Keeffe. I must comment, in passing, that if the Fine Gael amendment were to be the one accepted it would not damage the legislation in any way.

Deputy McCartan in his general remarks made the point that the section as proposed by the Government would not advance the law one iota from what it was under the Larceny Act, 1916. He also referred to the report of the Law Reform Commission at page 25 from which I quote a short passage:

35. Section 33 (1) of the Larceny Act, 1916 requires knowledge on the part of the defendant that the goods were stolen. What does “knowledge” mean in this context? Since it is necessary for the prosecution to establish that the goods in fact have been [401] stolen, the only type of case that can warrant a conviction is where the defendant believed that the goods were stolen and his belief was correct.

Again, however, one must ask what is meant by “belief” in this context? A person's belief may range from complete certainty through confident belief to mere suspicion.

It goes on, in paragraph 36, to state:

In two decisions since Independence, the question of the relationship between knowledge and belief has been discussed by the Irish courts. In both of these cases, the courts took the position that knowledge, as distinct from belief, was essential.

Cases are quoted and various quotations are given from the judgements. It is to address that situation that we have this new section in the Bill. “Belief” is now being included with actual knowledge as a possible mens rea for the offence of receiving or handling.

Deputy McCartan went on to make the point, with which one must have some sympathy, that the Theft Act, 1968, in section 22, added on the criterion of “belief” to actual knowledge. The House of Lords in the UK took the view that belief in section 22 of the Theft Act, 1968 meant actual subjective belief; in other words, it added very little to actual knowledge. The relevant section, 22, should be read to refer to a person who knows or practically knows the property in question has been stolen. There is nothing to indicate to me that the Irish courts would take a similar view of similar legislation which was passed here by this legislative body. The view taken by the UK courts would, of course, be persuasive. It would be referred to by counsel for the defence, I have no doubt, but there is no guarantee or certainty or nobody can predict that the Irish courts would take a similar approach. Even if the definition were the same as in the UK Act of 1922 — which it is not — the Irish definition is radically different in the sense that the term “belief” in the Irish legislation is specifically defined in a [402] pretty wide way under section 3 of this Bill.

To my way of thinking, the term is defined in such a way by the Irish parliamentary draftsman as to give a very clear signal to the courts when they come to consider this matter that the English approach is not to be followed; it is not the approach to take and something substantially more than actual knowledge will now be required under the interpretation of section 3 of this Bill.

Deputy McCartan adverted to the report of the Law Reform Commission. I endorse fully what he says about the Law Reform Commission. They are an excellent body of people. The research they have done on this and other aspects of the law is truly praiseworthy. The arguments they have advanced for incorporating various legislation within our system, or amending legislation that is already there, are most persuasive. However, I have often argued in this House against slavishly following British legislation. I can advance the same arguments against slavishly following the recommendations of the Law Reform Commission. Neither the British Legislature, the Irish Legislature, the Law Reform Commission, Deputy McCartan, myself, the Supreme Court, nor anybody else, has a monopoly of wisdom. I submit to Deputy McCartan that he himself is not following the recommendations of the Law Reform Commission in this regard.

The report of the Law Reform Commission on pages 90-92 discusses the concept of recklessness. The specific proposal of the Law Reform Commission for legislation is contained on page 117. It is clear, to me at least, that when the Law Reform Commission are recommending that recklessness be included as a criterion, they are talking about subjective recklessness, where there is some degree of culpability on the part of the accused. They are not suggesting for a moment — and I am surprised to hear Deputy McCartan suggesting it — that we should introduce civil law concepts into criminal law even in an area such as this. It is obvious that there is no such thing as recklessness per se, but I give [403] Deputy McCartan credit. He goes on to define recklessness as he sees it and he indicates clearly his definition in his amendment 8a where he gives a clear signal as to the sort of recklessness he is talking about, namely objective recklessness. It has been accepted by courts, academic writers and whatever that there are two types of recklessness, subjective and objective. The report of the Law Reform Commission, in recommending that recklessness be used as a criterion, is talking about subjective recklessness. It is contained in paragraph 6 of their general scheme for a Bill to provide for amendments to the law. Paragraph 6 states:

. . . a person is reckless within the meaning of section 3 if:

(a) he consciously disregards a substantial and unjustifiable risk that the property he handles is unlawfully obtained.

They go on to define it further in paragraph (b) where it provides that “the risk is of such a nature and degree that considering the nature and purpose of the handler's conduct and the circumstances known to him, its disregard involves culpability of a high degree”. It is stitching it in firmly because what they are talking about there is subjective recklessness to which the accused has at some stage consciously adverted.

Deputy McCartan's amendment No. 8a states that “recklessness” is to be construed as including a person who acts consciously to disregard a substantial and unjustifiable risk. He is only including the person who is acting consciously. It is including somebody who is subjectively reckless. I submit to Deputy McCartan that it leaves wide open the possibility of objective recklessness being used as a criterion for a person to be guilty of handling or receiving stolen property.

As I have said, Deputy McCartan has the advantage of me in this regard because he has vast experience of the criminal courts, which I do not have. I take it, therefore, when he is talking [404] about the problems that arise he is doing so in good faith, but I suggested that the way “belief” is defined in section 3 is a clear signal to the courts that we want them to take a much broader interpretation of the mens rea of this offence than has been taken by the courts in the UK under section 22 of the Theft Act, 1968.

Mr. Flanagan: Is it not precisely because of that, that Deputy McCartan and I have put down the amendment, so that this legislation will not follow section 22 of the Theft Act?

Mr. O'Dea: It will not, because the legislation is sufficient to ensure it does not.

Mr. Flanagan: About an hour and a half ago Deputy Stafford made the point that he was one of the few non-lawyers in the House. He has since left. I think that is significant. I realise Deputy Kavanagh and the Minister are here, but they are here in their capacity as spokespersons for their parties. No other person of the 166 of us is here. Deputy Stafford made a justifiable point that perhaps people were reluctant to come into the House and engage on the finer points of the debate for fear of being overrun by the lawyers. Let us hit that on the head.

If we had more people in here we might be in a position to tease out the problems we have. The lawyers appear to be concentrating on the logical aspect of a piece of legislation and running the risk of throwing out the commonsense.

I would like, for a brief moment, to take the debate back to the reasons for this legislation. The Law Reform Commission were encouraged to consider the various aspects of the problem and to produce a report. This was because the Larceny Act, 1916, had been a failure. Because of the loopholes in that legislation we were experiencing severe problems of crimes against property. It was in an effort to counteract those problems that the Minister for Justice came forward with this legislation.

It has been said that section 3 is the [405] kernel of the legislation because it introduces the new offence. I genuinely do not think that we will turn about the very alarming rates of crime against property in Ireland unless we broaden the new section 3 to include what is envisaged by the amendment. The fact is that in this city of Dublin, on a square footage basis, we have three times the rate of crime against property as is the case in London. We are far and away the crime against-property capital of Europe. This attempt, under section 3, to stem that tide is too weak. We can learn from the British experience where, as Deputy O'Keeffe has said, the line we appear to be following in this amendment has been a failure. If we are to tackle the receivers of stolen goods we have got to place an onus on them to account for their behaviour at the time of receipt of the goods. I do not believe that by adding the word “believing” to actual knowledge we will achieve that. We have got to look at the broader concept which was exhaustively reported by the Law Reform Commission in considerable detail, where they looked not only at the law in the UK but also at the American situation.

I have not yet had the benefit of hearing the Minister's response to the amendments other than to hear her say she is opposing them. I do not want to delay her pronouncement of the reasons she is opposing them. Is it because she feels there will be a danger of a fair trial to somebody who is faced with a very high burden? Is it because she feels that the concept of recklessness is something new to our law? We have legislation and pronouncements from the courts as to the definition of recklessness, as already referred to by Deputy McCartan and as in the Murray case of 1970 where Mr. Justice Henchy stated the concept of recklessness. I quote from the Law Reform Commission report, page 92, as follows:

A person acts recklessly with respect to a material element of an offence when he consciously disregards a substantial and unjustifiable risk that the [406] material element exists or will result from his conduct . . .

That is a follow-on from the recommendation of the Law Reform Commission which has already been quoted extensively by Deputy McCartan. It can be argued, as the Law Reform Commission have stated, that the definition of recklessness, as handed down by Mr. Justice Henchy in 1970, could form an appropriate basis for the definition of recklessness in a new offence of handling unlawfully obtained property. That is what the Law Reform Commission have said and I cannot find any evidence to suggest that that is not a correct or a suitable approach to the tightening up of our legislation on receiving stolen goods. We have not had a look at this area since 1916. We are now reviewing it for the last time until God knows when. I believe we are missing an opportunity of stemming the tide of crime against property in the community by not introducing a test of recklessness on a person who may be engaged in the handling of or dealing in stolen goods.

Deputy Stafford said he is loath to engage in an argument where there are lawyers involved. I consider that particularly bad form for this House because it means we might leave aside our eagerness to construct a logical argument and bring in the commonsense approach. There are people in this community who are waiting for protection under this legislation so as to stamp out the Arthur Dalys of the community. I do not think we can do it unless the Minister can see her way to accepting the amendments as tabled by Deputy McCartan, Deputy O'Keeffe and myself.

Mrs. Geoghegan-Quinn: Perhaps the next piece of legislation we should be discussing here is legislation that gets rid of or eradicates the perceived intimidation of our colleagues who are not members of the legal profession by the members of the legal profession in this House. I said already that it is the Government's intention to oppose all ten amendments. Before referring to the [407] amendments I want to refer to a point raised by Deputy McCartan. He said that in the case of this Bill the Law Reform Commission's recommendations had been ignored in its drafting. That is not true because the Government went along with a number of the Law Reform Commission's recommendations in an earlier consultation paper in this particular case and in others and sometimes did not go along with the recommendations made. It should be remembered also that the function of the Law Reform Commission is to analyse our laws and make recommendations for change. The Government are not obliged to accept or adopt any or, indeed, all of the recommendations in any particular instance. Certainly the Government study them and they can decide as a matter of policy to accept or reject proposals as they see fit. They do not reject proposals in a cavalier fashion as seems to have suggested by Deputy McCartan in his contribution.

The intention behind Deputy McCartan's amendments is to introduce the concept of recklessness into the mental element for the new offence of handling. As such it mirrors the Law Reform Commission's recommendation which was considered by the Government and rejected.

The recklessness test proposed is a subjective one, which corresponds broadly speaking to the test that has been applied by the courts in this country and others in branches of the criminal law in relation to violent crimes, such as the law on rape or murder. There are, however, some difficulties about the concept of recklessness, and its exact scope is somewhat uncertain.

This concept is based on a proposal in the Model Penal Code drafted by the American Law Institute, a distinguished private organisation in the United States. I think it is important to note that the Law Reform Commission were unable to provide any example of this concept actually in use in the law on receiving or handling stolen goods in any country — though they do cite a recommendation as to its use, as a basis of general liability in [408] the criminal law, which was put forward by the Criminal Law and Penal Methods Reform Committee of South Australia in a report entitled “The Substantive Criminal Law” published in 1977.

The Government felt that, in the context of handling/receiving cases, the test of recklessness would prove unsatisfactory in practice and confusing to juries. It is not favoured by the Director of Public Prosecutions whose office would have to apply this provision in practice.

Furthermore, the level of calculation and culpability implicit in the test of recklessness would, if applied as a test of guilt in handling cases, have a very limited effect in securing the conviction of handlers who, while not knowing for certain that the property is stolen, have a strong suspicion that it is indeed stolen.

The principal difficulty which the Government perceived with the commission's proposal, which Deputy McCartan would follow, was that it would require a jury to decide whether the accused acted recklessly. Recklessness is not a clear cut concept, and while the Law Reform Commission endeavoured to clarify what is intended by providing a definition of recklessness, that definition itself contains scope for uncertainty. The commission's definition is at paragraph 4 of their report at page 115. It reads as follows:

“Recklessness” should be defined so that a person acts recklessly if he consciously disregards a substantial and unjustifiable risk that the goods were unlawfully obtained. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to him, its disregard involved culpability of a high degree.

Taking the first sentence of the definition offered by the commission alone, it is difficult to see how a prosecutor can prove “conscious disregard” of a risk, or how substantial “substantial risk” is nor is it easy to see how it can be shown that a trader, whose normal day to day business is to buy goods so they can be [409] sold at a profit, took an “unjustifiable” risk that a particular item was stolen. The second sentence attempting to flesh out the nature of the risk, offers similar conceptual challenges — challenges which the defence would be able to convert into obstacles in the way of a conviction for his client.

All in all, and having consulted with the prosecuting authorities here, the Government took the view that the Law Reform Commission's “recklessness” recommendation would not, in practice, extend sufficiently the scope of the offence beyond the existing requirement of “knowing the property to have been stolen”. Other options were then sought which would have the effect of extending the scope to the desired extent. Of particular interest was the formula already canvassed in the commission's earlier consultation paper and in the report itself which is modelled on the situation in England, Wales and Northern Ireland where a new formula of “knowing or believing” was introduced in 1968. After some initial difficulties, this provision has operated in a generally successful manner in that jurisdiction for two decades. As already stated this was the commission's preferred approach originally and, while nevertheless recommending “recklessness” in their report, the commission admitted that a strong case could be made in favour of this solution.

Deputy O'Keeffe made the point that we are following the English example with all the difficulties associated with that provision. We are not doing so because we have further provisions in our Bill defining “knowing or believing” and certain inferential provisions. As to the difficulties he referred to with the English provision in the 1968 Theft Act, the point may be made that they were more apparent than real and it is certainly the case that those earlier decisions in the lower courts did cause a certain lifting of the eyebrows in higher judicial circles and among legal commentators, to put it mildly, but it is true that in a few cases, soon after the Theft Act was passed, some lower courts may have misconstrued the Act or misapplied it. The [410] Appellate Court have spelled out its meaning in clear terms and the initial problems have long since disappeared.

It is important to realise that the proposal contained in the Bill draws on the English legislation, which has proven itself reasonably satisfactory in 20 years of practical use, but with the additional feature of defining “believing” as including “thinking that the property was probably stolen property”.

On the other hand, Deputies O'Keeffe and Flanagan would introduce the concept of recklessness as an additional element of the mens rea, to stand parallel with the concept of knowing or believing. This would make the task of the jury, the judges and lawyers on both sides so complicated as to be virtually unworkable. It would have all of the disadvantages of the “recklessness” concept that I have just outlined, and would not add usefully to the scope of the offence. All in all, I am satisfied that the section proposed extends the scope of the offence sufficiently to secure convictions in appropriate cases.

The effect of Deputy Kavanagh's amendment No. 8 would be to delete what the Government regard as an important element in the mens rea of the new offence of handling stolen property. The provision in question is intended to cover the situation where the accused strongly suspected that the property was stolen. The discussion paper produced by the Law Reform Commission put forward this option as their preferred approach. In their final report, at page 93, the commission, while not recommending this option, said that a strong case may be made in its favour. As the commission stated “why should any person escape criminal liability where he accepted property when actually suspecting it was stolen?”

The concept of “believing that the property was stolen property” is elaborated on by the subsection which Deputy Kavanagh's amendment would delete. Its effect is that “believing” will include “thinking that the property was probably stolen property”. The Government believe that this formula will enable [411] persons to be convicted in circumstances in which, on any view, they should be convicted. It is also a much less burdensome requirement for the prosecution to prove, and is likely to result in an increasing number of convictions of those who dishonestly trade in stolen property, whether they do so in a once off transaction or as part of a regular “fencing” operation.

The effect of Deputy Kavanagh's amendment would be to narrow unduly the scope of the new offence. It would mean that in a case where the prosecution demonstrated that the accused had a strong suspicion that property was stolen, the likelihood of a conviction would be diminished because of the possibility of the jury taking the view that the suspicion was not strong enough to constitute belief.

Deputy McCartan seemed to suggest that there is authority for the proposition that “belief” adds little or nothing to the concept of knowledge that the property was stolen. We would be most interested on this side of the House to hear Deputy McCartan cite references for such authority because we are not aware of any.

An Leas-Cheann Comhairle: I now call on Deputy McCartan to blend legal logic with common sense.

Mr. McCartan: I hope it will be more common sense and less law. The Minister has thrown down the gauntlet in regard to citing examples. I refer her to the section in the report of the Law Reform Commission where, under comparative aspects, headed United Kingdom, starting at page 59 and going on to pages 60, 61 and 62, there is a detailed discourse on the whole question of section 22 of the Theft Act, 1968.

The section indicates the difficulties that have occurred there in interpreting the concept of “knowledge” and “belief” conjunctively and that is the way the courts have dealt with it in Britain. Deputy O'Keeffe drew the Minister's attention to the fact that, in some instances, “knowing” and “belief” mean [412] “knowing” and “knowing”. The report states at page 60, paragraph 71:

The mental element has also given rise to some problems. Efforts by some trial judges to give some explanation of the phrase “knowing and believing” have caused more harm than good. The boundaries between a subjective and an objective approach have proved difficult to maintain, especially in cases where the facts should have given rise to suspicion as to the goods provenance or where the accused was considered to have been wilfully blamed.

It goes on to refer to three cases and said that over the past three years the Court of Appeal have been forced to spell out the position in clear terms. The Court of Appeal are trying to assert that there is — and should be — a difference in law in interpreting the concepts. They are clearly addressing a situation where, at Crown Court level, the interpretation in practice is that there is little or no difference between those two concepts. That is a matter which must be addressed.

The arguments seem to boil down to the fact that the proposed amendment by way of inclusion of the concept of “recklessness” gives rise to uncertainty or might give rise to uncertainty and difficulties. More difficulties and uncertainties are likely to arise as a result of the Minister's proposal in the Bill. I then tried to use common sense — if anything coming from me is either common or sensible — to make the case that the law in practice must be looked at. I believe that the term “knowing” in time will become the ultimate dominant concept in the definition. If we are in any doubt about that let us look at what the courts have done with the 1916 definition. Within a period of 60 years its interpretation has become nonsensical. Juries were told that even if they disbelieved the version of the accused they were still obliged, in certain circumstances, to acquit. The courts, armed with their powers of judicial interpretation and the Minister's proposal in the Bill, will reduce it to nonsense in time, if it is not already nonsense.

[413] Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.