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 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 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 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 —"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 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 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.
