I move amendment No. 11a:
To insert the following new section before section 5:
"For the purposes of sections 5, 6 and 7 of this Act, the Larceny Act 1916 is hereby amended by the substitution for section 1 of the following sections:—
‘1A.—(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly.
(2) It is immaterial whether the appropriation is made with a view to gain, or is made for the thief's own benefit.
(3) The five following sections of this Act shall have effect as regards the interpretation and operation of this section (and, except as otherwise provided by this Act, shall apply only for purposes of this section).
1B.—(1) A person's appropriation of property belonging to another is not to be regarded as dishonest—
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf o himself or of a third person; o
(b) if he appropriates the property in the belief that he would have the other's consen if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as a trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
1C.—(1) Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
(2) Where property or a right or interest in property is or purports to be transferred for value to a person acting in good faith, no later assumption by him of rights which he believed himself to be acquiring shall, by reason of any defect in the transferor's title, amount to theft of the property.
1D.—(1) "Property" includes money and all other property, real or personal, including things in action and other intangible property.
(2) A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—
(a) when he is a trustee or personal representative, or is authorised by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him; or
(b) when he is not in possession of the land and appropriates anything forming part of the land by severing it or causing it to be severed, or after it has been severed; or
(c) when, being in possession of the land under a tenancy, he appropriates the whole or part of any fixture or structure let to be used with the land.
For purposes of this subsection "land" does not include incorporal hereditaments, "tenancy" means a tenancy for years or any less period and includes an agreement for such a tenancy, but a person who after the end of a tenancy remains in possession as statutory tenant or otherwise is to be treated as having possession under the tenancy, and "let" shall be construed accordingly.
(3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or other commercial purpose.
For purposes of this subsection "mushroom" includes any fungus, and "plant" includes any shrub or tree.
(4) Wild creatures, tamed, or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed not ordinarily kept in captivity, or the carcass of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in course of reducing it into possession.
1E.—(1) Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
(2) Where property is subject to a trust, the persons to whom it belongs shall be regarded as including any person having a right to enforce the trust, and an intention to defeat the trust shall be regarded accordingly as an intention to deprive of the property any person having that right.
(3) Where a person receives property from or on account of another, and is under an obligation to the other to retain and deal with that property or its proceeds in a particular way, the property or proceeds shall be regarded (as against him) as belonging to the other.
(4) Where a person gets property by another's mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds.
(5) Property of a corporation sole shall be regarded as belonging to the corporation notwithstanding a vacancy in the corporation.
1F.—(1) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other's rights; and a borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
(2) Without prejudice to the generality of subsection (1) above, where a person, having possession or control (lawfully or not) of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other's authority) amounts to treating the property as his own to dispose of regardless of the other's rights.'"
This amendment proposes to deal with the rather illogical situation to which I adverted on Second Reading: that the Minister has chosen in this Bill to make substantive amendments to our criminal law which will amend it by amending the Larceny Act, 1916, and that this will be the position for any person charged with these offences, which are "robbery", "burglary" and "aggravated burglary". He has chosen to amend the Larceny Act by borrowing the description of these offences as contained in the Theft Act, 1968, in England, and the Theft Act, 1969, in Northern Ireland but has failed to take over the definition section of "to steal" which is an element of "robbery" and which is a likely element in both "burglary" and "aggravated burglary" as so defined. So the result is the worst of all possible worlds in that we have a sort of hybrid where we have a description of an offence in identical terms to the description of the Theft Act but the meaning is different because you have to refer back to a definition section in the Larceny Act, 1916, rather than to a definition which corresponds to the definition of "theft" and "to steal" in the equivalent Theft Act in England.
I referred to the fact that in the explanatory memorandum circulated with the Bill the Minister seemed to be of the view that the three offences—"robbery", "burglary" and "aggravated burglary"—would be the same in the three jurisdictions and he seemed to want to achieve this objective. For example, in the explanatory memorandum there was reference to section 5— to the offence of larceny—which stated that:
The present section follows both these enactments——
that is section 8 of the Theft Act, 1968, in England, and section 8 of the Theft Act, Northern Ireland, 1969
——so that the law will be the same in all three jurisdictions.
Then in the explanatory memorandum, in reference to section 6, it is stated that the new section, 23(a), of the Larceny Act is exactly similar to section 9 of the English Theft Act, 1968, chapter 60 and section 9 of the Theft Act, Northern Ireland, 1969, chapter 16. Similarly, under section 7, which relates to aggravated burglary, at the end of the explanatory memorandum it says that the new section, 23 (b), is exactly similar to section 10 of the English Theft Act, 1968, chapter 60, and section 10 of the Theft Act, Northern Ireland Act, 1969, chapter 16.
I ought to explain, since this amendment is extremely long and involved, that it is also borrowed word for word from the Theft Act, 1968, in England. It is the definition there of what is meant by "to steal" and then each of the words used is analysed, the word "dishonestly", the word "appropriate", the word "property", the word "belonging to another" and "with the intention of permanently depriving the other of it." As originally drafted this was a section to insert the new definition for the general purposes of the criminal law as these offences of "robbery", "burglary" and "aggravated burglary" and for the general purposes of criminal law, but I was advised—and I accept this—that in the context of this Bill it is not possible to introduce major reforms of definitions of the criminal law and that I am confined in this amendment to amending the three offences as set out in section 5, 6 and 7 of this Bill.
I am not very happy with this result because one reaches the rather illogical conclusion in the end that for the purposes of this Bill these three offences of "robbery", "burglary" and "aggravated burglary" will be the same as the corresponding offences in the Theft Acts in England and in Northern Ireland, but for all other purposes the three substantive offences will still be these strange hybrid offences where they will have the same description as in the Theft Act but they will have substantially different meanings by reference to the definition of "to steal". I read carefully what the Minister said on Committee Stage in response to this point and I am surprised that he seems to underestimate or to minimise the difference which this makes. He said, as reported at column 420 of the Official Report, having mentioned that there was a further point raised in regard to changes in substantive criminal law in the Bill, that:
There has been some criticism from Senator Robinson that by reason of our failure to change the definition of a larceny to comply with the definition contained in the Theft Acts of Northern Ireland and England we failed to achieve what we set out to achieve—uniformity between the laws here and Northern Ireland in regard to robbery and burglary. Here in the State the meaning of stealing is governed by the definition of stealing in the Larceny Act, 1916, but stealing only becomes relevant here when it is an ingredient of robbery or burglary. We have not sought to amend the law regarding larceny as an offence. We are seeking to amend the law as regards robbery and burglary. Stealing is one element of it.
He then goes on, in what I find a difficult line of reasoning to follow, to say that despite the fact that the elements of the offence would not be the same, the offences were to his satisfaction identical in the three jurisdictions. I may be accused of being academic, but I at least have a very genuine and I hope unacademic zeal for law reform. I am very firmly of the view that we need a reform in our criminal code and we need it in this area now governed for this country by the Larceny Act, 1916. I regret that the Minister has decided to take just three offences out of the Larceny Act—the offences of "robbery", "burglary" and "aggravated burglary"—and put them into this Bill, which would not be the obvious source for somebody seeking to know what the law is in this area of criminal law.
Nevertheless, we should reform our criminal law, and I am very much persuaded by the report of the Law Reform Committee in England which preceded the Theft Act there. They made substantial and unanswerable criticisms of the Larceny Act, 1916, and in particular of the definition of "to steal" under the Larceny Act, which the Minister appears to be happy to continue as the basic definition of "to steal" for the purposes of that element of the offence of robbery and that element of the offence of burglary or aggravated burglary where the felony which the person intends to commit or has committed is the offence of stealing.
There are very obvious defects, which I do not need to go into at any great length at this stage, in the definition of "to steal" under the Larceny Act, one obvious definition being the fact that it is basically a deprivation of possession and that the intent to deprive the owner permanently of his property must coincide with this physical deprivation of possession. There has been a number of examples of where a person takes something belonging to another and at the time he takes he intends to hand it over to the police or to turn it in to a lost property office and then later, when he has had it in his possession for some time, he becomes tempted and he realises that nobody saw him take it and decides to keep it, to misappropriate it. Under the definition of "to steal" under the Larceny Act, 1916, that would not be the offence of stealing nor would it be an attempt to steal, because the intent did not exist at the time of the taking of possession of the thing. This means that it is much more difficult to convict of "burglary" or "aggravated burglary" under the definition contained in sections 6 and 7 of the Criminal Law (Jurisdiction) Bill because the definition of "to steal" is much narrower, much less flexible, much less in line with modern theories of criminology, modern theories of dishonest appropriation. Apart from an irritation and a genuine annoyance at seeing what I must confess I regard as hamfisted amendment of our criminal law by just borrowing a description without a definition, it is a great pity because it is likely to be a minor amendment of a hybrid nature which will delay the genuine reforms not just of the description of various offences but of the elements of those offences, of the definitions of those offences.
Therefore I hope that the Minister will take this amendment in the good faith in which it is offered and that he will either take it in the narrow form in which it is framed here or, better still, introduce the wider definition of "to steal" under the Larceny Act and broaden it to cover the scope of that Act. I am not sure whether, as the author of this Bill, he gets more leeway in that respect under the Long Title of the Bill than a Member of this House wishing to amend the Bill. We have the worst of all possible worlds here in relation, not to anything political, not to fugitive offenders; not to terrorism, but to the reform of our substantive criminal law about which I care very deeply and which I think we must do logically and, preferably, in a comprehensive criminal code.
If we do bits of it in a Bill such as this, let us not only change the description of offences but let us also adopt the appropriate definitions of the elements of the offence so that we create a genuine modern definition of the particular anti-social activity which we wish to designate as criminal and achieve the simple objective set out in the explanatory memorandum. Since it is desirable in the circumstances, let us have identical offences in the three juristictions in respect of robbery, burglary and aggravated burglary. It is for that purpose I introduced this amendment.