It is a source of great satisfaction to me, a Chathaoirligh, to bring this important Bill before the Seanad. It gives me an opportunity to affirm to this House the no-nonsense approach to criminal activity which this Government are taking. Senators will be aware of the practical steps that I have taken on the resources side, in the 1990 crime-fighting package, to ensure that more gardaí will be available to do the job we want them to do: to provide a visible presence on the streets and roads of Ireland so as to deter the criminal and reassure the law-abiding citizen going about his or her daily life. This Bill forms part of the other half of the Government's two-handed strategy in the fight against crime. That is the updating and refinement of our criminal law so as to meet the challenges presented to it today by those engaged in crime.
Senators will be aware that much of our criminal law is a legacy from preIndependence days. The Larceny Act, 1916, with which this Bill is mainly concerned, represents a drawing together of a miscellany of statutory provisions, mainly 19th century, and clearly reflects the concerns of those times.
The Law Reform Commission, in 1987, was asked by the then Attorney General to examine the pre-Independence criminal law, particularly in the areas of dishonesty, malicious damage and offences against the person. The Commission's first response was to produce, at the end of that year, their report on receiving stolen property. The Commission chose this area for immediate attention because of the most unsatisfactory state of the present law. In the opening paragraph of their report, they observe that "...the existing law permits receivers of stolen property to escape conviction for unjustifiable reasons"; and this, they say, "facilitates crimes of dishonesty over a wide area". Later on, at paragraph 106, they say that "... our present law on receiving is in many respects unnecessarily favourable to the accused, presents unreasonable obstacles to the prosecution and is seriously out of date".
I could not agree more. The Garda are operating with both hands tied behind their backs in receiving cases and I want to correct the balance.
How is it that "fences" can escape conviction? The simple reason is that the law at present places too heavy a burden on the prosecution. In order to obtain a conviction for receiving, it is necessary to prove beyond a reasonable doubt that the accused actually knew at the time of receipt that the property was stolen property. Not that he or she suspected, or had a shrewd idea, or thought that maybe the goods were hot, but actually knew. Is it any wonder that faced with the absolute requirement of certainty for the prosecution to succeed, the defence has little difficulty in raising a reasonable doubt in the minds of the jury as to the accused's state of mind in many cases? This, despite the fact that the behaviour of the accused is often such that, on any objective view, it should not go unpunished.
A particularly objectionable feature of the business of receiving is that it generates and facilitates other crimes of dishonesty. There are organised "fences" operating, particularly in our major cities, who offer a ready market for all sorts of stolen property. I have no doubt that in some cases, these receivers indicate to their clients what type of commodity they are interested in, so that the thieves can, as it were, steal to order. If these backroom tycoons can be put out of business, then it follows that those who supply them, the front-liners who go out and steal, will have much greater problems in disposing of their booty and turning goods into cash. That is one of the aims of this Bill.
But it is not only the criminal wholesalers of stolen property at whom this Bill is directed. Trading in stolen property is equally reprehensible whether it is done in bulk or as a one-off transaction in the pub or at the doorstep. We have all heard the euphemisms for this trade in stolen property —"it fell off the back of a lorry" or "he got it at the right price, no questions asked". That is why the Law Reform Commission felt that changes should be made in order to create a legal environment less favourable to the shady deal and better able to bring the shady dealer to justice. That is also why the Government bring this Bill before you today.
The Bill approaches the receiving problem from a number of angles. First, it broadens the terms of the offence by taking in a wider range of nefarious activity. The existing offence applies only to the act of receiving stolen property. Under the new offence, set out at section 3 of the Bill, the following activities are brought in: receiving stolen property; undertaking or assisting in the retention, removal, disposal or realisation of stolen property by or for the benefit of another person, or arranging to do any of those things. The name of the new offence, "handling stolen property", reflects the wider range of activity which is made criminal, though not, of course, the entire range; for, as was pointed out in the other House, one might commit an offence under the new provision merely by making a phone call arranging to receive the property in question, without ever going near it at all.
The Bill also broadens themens rea, the mental element of the offence. The present offence of receiving is committed, as I have said, only if the receiver knew at the time of receipt that the property was stolen. The new offence of handling, by contrast, will be committed if the handler of the stolen property knew or believed that the property was stolen. “Believing” in this context will include “thinking that the property in question was probably stolen”. This change is designed to make the task of the prosecution considerably easier than under the present law, since it will generally be less difficult to adduce evidence which shows the accused's knowledge or belief, as defined in the Bill, than evidence showing actual knowledge.
A further way in which the Bill will make it less easy for those engaged in handling stolen property to escape justice is by placing an evidential burden on the accused where the prosecution shows that he or she did any of the things which would constitute the handling offence in circumstances where it is reasonable to conclude that he or she knew or believed the property in question was stolen. In those circumstances, the accused will be taken to have known or believed this, unless the jury, or the court, if the case is being tried, for instance, in the District Court, is satisfied, having regard to all the evidence, that there remains a reasonable doubt as to whether he or she did so. Thus, once the accused is shown to have handled stolen property in those circumstances, then, unless the defence can raise a reasonable doubt as to the guilty mind of the accused by, for instance, offering an explanation for the handling which points to the accused's innocence, he or she should be convicted.
Senators will be aware that in taking this approach to the reform of the law, the Government have not followed the recommendation of the Law Reform Commission as to what themens rea of the offence should be. The Commission, in their report, canvassed a number of possibilities, including an approach similar to that now adopted by the Government in this Bill, before finally settling on recklessness as their favoured mens rea. They based their proposals on a model scheme of legislation prepared by the American Law Institute. However, at the time of their report they were unable to point to any jurisdiction where such a scheme was actually in operation.
The Government, instead, opted for an approach based with modification on one which has actually proven to be effective in a neighbouring jurisdiction as a means of bringing to justice those who handle stolen property. I refer to the English Theft Act 1968. This approach is similar to that initially favoured by the Law Reform Commission in the consultation paper which preceded the publication of their final report. A consideration which influenced the Government in this course of action was the concern that an, as yet, untried legal formula in this area of the criminal law could result in a considerable amount of litigation by way of appeal as defence lawyers endeavoured to test the new law to its limits. The ensuing uncertainty could encourage rather than inhibit criminal activity.
Another important matter covered by the Bill is the possession of articles for use in larceny, burglary and other offences. Section 2 of the Bill deals with this. The existing law on possession of articles is covered at section 4 of the Vagrancy Act, 1824, and at section 28 of the Larceny Act, 1916 — this last a restatement of a number of older provisions. They are products of their times, and the Law Reform Commission, in their report on vagrancy and related offences published in 1985, recommended their replacement with provisions designed to reflect the modern need for a more generally-drawn offence which takes account of the changing technology of crime.
The new provision has two legs. The first makes it an offence to be in possession, otherwise than at home, of any article whatsoever with the intention that it be used in larceny, burglary, fraud, embezzlement, blackmail or taking a vehicle without the consent of the owner. It is normally no offence to be in possession of, say, a car key or a credit card or a chisel or a crowbar — these are all everyday household items or tools of a person's trade; but to be in possession of any of these items with the intention that it be used in larceny or any of the other specified criminal activities will now be an offence under subsection (1) of the new provision at section 2 of the Bill.
The second leg of this provision deals with articles which have been made or adapted for use in any of the offences listed in the section. Accordingly, possession anywhere of an article of this nature without lawful authority or reasonable excuse will be an offence. Thus, if a person is in possession of, say, a device for extracting coins from a telephone box — and such devices have been fashioned — he or she will almost certainly be guilty of an offence.
Offences under these provisions will be punishable on indictment by a maximum sentence of five years or a fine or both, and the court will have power to confiscate the articles in question.
I regard these provisions as a useful weapon in the legal armoury of the Garda Síochána in their efforts to prevent crime. Because the offences under the new provisions will be felonies, they will attract the general law that applies to such offences. One of the important features of that law is that the Garda have power to arrest without warrant a person suspected of having committed a felony. Thus, in this case the Garda will be able to use their powers to prevent the commission of more serious crimes.
Let me now turn to the remaining provisions of the Bill. Of particular note is section 8, which deals with alternative verdicts. The section is designed to deal with the situation where a person is on trial for larceny or one of the other crimes of dishonesty, but the evidence at the trial points to the fact that he was not the primary offender but rather handled the dishonestly obtained property in question. The converse situation, where a person on trial for handling turns out to have been the thief, etc., is also covered. In either of those cases, the jury will be able to find the accused guilty of the appropriate offence indicated by the evidence rather than of the offence charged, but he or she will be liable only for the lesser of the maximum sentences provided for.
Another important change which this Bill brings about is at section 5. This section repeals a provision of the 1916 Act under which it is possible to adduce evidence of the accused's previous convictions for offences of dishonesty, or of the accused having been found previously in possession of stolen property, in order to show the accused'smens rea in a trial for receiving stolen property. The Bill originally proposed to restate this provision in relation to the new offence of handling, but in a much modified form with certain safeguards built in for the accused. However, I was persuaded by the arguments made in the other House against even such a modified provision, and section 5 of the Bill now before this House does away completely with the evidential provision. Because of the nature of the existing provision, the repeal is being excepted from the three-month delay which applies to the other provisions of the Bill to enable lawyers and the Garda to familiarise themselves with the changes in the law. Accordingly, this repeal will take effect immediately on the passing of the Bill.
I spoke earlier of the crime-generating effect that the existence of handlers of stolen property has. This is why the Government take the view that the offence of handling stolen property is sufficiently serious to warrant a maximum sentence of 14 years' imprisonment. The new provision in section 3 of the Bill provides for such a sentence, and also enables the court to impose a fine in addition or as a substitute. This compares with the standard maximum of ten years' imprisonment for larceny, fraudulent conversion, embezzlement, obtaining by false pretences and blackmail, which the Bill provides for in section 9. This new standard maximum replaces a wide variety of different maximum sentences for larcenies of different types of property in the 1916 Act.
The remaining provisions of the Bill need not be gone into in detail at this stage. They are, in the main, largely technical; and if necessary, particular questions on them can be dealt with on Committee Stage.
Before I conclude, I should like to touch again on the Law Reform Commission's role in the development of this Bill. I thank them again for the excellent quality of their work report on handling stolen property and on the promptness with which they produced it. It is no reflection on that body that this Bill does not implement every recommendation in their report, whether at all or exactly in the manner set out there. This subject, like so many matters of legal policy, is one in which differences of opinion are inevitable. No one need read into the differences in approach between the report and the Bill anything on my part other than respect for and gratitude to that body.
I have already mentioned why the Bill does not follow the commission's line on themens rea for handling. The commission proposed a provision regarding the compensation of crime victims; that will be considerd in my Department in the context of crime generally and not in the relatively narrow context of handling stolen property alone. The commission also made recommendations regarding the admissibility in evidence of business records: that, too, is being examined in the wider context of crime generally, and I will be putting legislative proposals before the Government shortly, which will deal with this and other matters of criminal evidence.
I am under no illusion as to the extent of the task before us in bringing up to date the criminal law so as to make it a suitable companion to the other technologically-advanced tools which the Garda Síochána have at their disposal in both preventing crime and bringing miscreants to justice. This Bill represents an important step on the road to a modern criminal justice system; it will, I am certain, have a significant effect in limiting the activities of those who traffic in hot property, and thus in cutting down on the activities of those who supply that market.
I am committed to an ongoing reform of the criminal law. I hope to publish shortly Bills providing for the abolition of the death penalty, on the reform of the law relating to criminal damage to property and on the law relating to evidence by spouses and, as I have mentioned, admissibility of business records in criminal proceedings. There are further proposals in preparation, including a Bill to eliminate the archaic distinction between felonies and misdemeanours. In the meantime, however, I commend this Bill to the House as one which will put "fences" behind bars.