THE LAW REFORM COMMISSION

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

(LRC 43–1992)



REPORT

ON

THE LAW RELATING TO DISHONESTY



IRELAND

The Law Reform Commission

Ardilaun Centre, 111 St Stephen's Green, Dublin 2



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c Copyright The Law Reform Commission 1992

First Published September 1992

Cover: The Courthouse, Washington Street, Cork.

(photo courtesy of “Cork Examiner”)



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THE LAW REFORM COMMISSION

The Law Reform Commission was established by section 3 of the Law Reform Commission Act, 1975 on 20th October, 1975. It is an independent body consisting of a President and four other members appointed by the Government.

The Commissioners at present are:

John F. Buckley, Esq., B.A., LL.B., Solicitor;

William R. Duncan, Esq., M.A., F.T.C.D., Barrister-at-Law, Associate Professor of Law, University of Dublin;

Ms. Maureen Gaffney, B.A., M.A. (Univ. of Chicago), Senior Lecturer in Psychology, University of Dublin;

Simon P. O'Leary, Esq., B.A., Barrister-at-Law.

The Commission's programme of law reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both House of the Oireachtas on 4th January, 1977. The Commission has formulated and submitted to the Taoiseach or the Attorney General forty two Reports containing proposals for the reform of the law. It has also published eleven Working Papers, five Consultation Papers and Annual Reports. Details will be found on pp363–367.

Ms. Clíona Kimber, LL.B., LL.M., Mr. James Kingston, LL.B., LL.M., Barrister-at-Law, Ms. Julianne O'Leary, B.A., LL.B., Barrister-at-Law and Mr. Oisín Quinn, B.C.L., LL.M., Barrister-at-Law are Research Assistants.

Further information from:

The Secretary,

The Law Reform Commission,

Ardilaun Centre,

111 St. Stephen's Green,

Dublin 2.

Telephone: 715699.

Fax No: 715316.



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This Report was submitted on 28th September 1992 to the Attorney General, Mr. Harold A. Whelehan, S.C., under section 4(2)(c) of the Law Reform Commission Act, 1975. It embodies the results of an examination of and research in relation to the law relating to Dishonesty which was carried out by the Commission at the request of the former Attorney General, Mr. John Rogers, S.C., together with the proposals for reform which the Commission was requested to formulate.

While these proposals are being considered in the relevant Government Departments the Attorney General has requested the Commission to make them available to the public, in the form of this Report, at this stage, so as to enable informed comments or suggestions to be made by persons or bodies with special knowledge of the subject.



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CONTENTS

PAGES

PART 1: THE PRESENT LAW

1–124

CHAPTER 1: INTRODUCTION

1– 2

CHAPTER 2: LARCENY

3–39

The Thing Stolen must be “Capable of Being Stolen”

4

(i) The Thing must be Tangible

4

(ii) The Thing must be the Subject of human ownership

5

(iii) The Thing must have an Owner

6

(iv) The Thing must neither be Realty nor Savour of Realty

6

Title Deeds

7

Documents Relating to Choses in Action

7

(v) The Thing must have some Value

8

Taking and Asportation

8

Possession

9

(i) Servant's Possession

10

(ii) Delivery of Goods for a Temporary, Special or Limited Purpose

10

(iii) Bailees' Possession

10

Who Is a Bailee?

11

Conversion By Bailee Constitutes Larceny

12

Larceny by a Trick

13

Consent

16

(i) Obtaining Possession by a Trick

16

(ii) Larceny by Intimidation

19

(iii) Larceny by Obtaining under Mistake of Owner

19

(iv) Larceny by Finding

21

Consent of the owner implied when lost goods are found

21


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CONTENTS

PAGES

The property of husband and wife

23

Mens Rea

24

(i) “Fraudulently”

24

(ii) Claim of Right

27

(iii) The Intent Permanently to Deprive the Owner of the Thing Stolen

29

Statutory Modifications

32

“At the Time of Such Taking”

33

Larceny from the Person

36

Punishment

37

CHAPTER 3: EMBEZZLEMENT

40–44

Who is a “Clerk or Servant”

40

CHAPTER 4: FALSE PRETENCES

45–56

The Right Obtained

46

The Subject Matter

46

What Constitutes a Pretence

47

The False Pretence Must Be One of Past or Present Fact

48

The False Pretence must Induce the Transfer of Ownership

50

Direction to Jury Need not refer Expressly to Requirement of Inducement where Evidence is Clear

51

Proof of the Falsity of the Pretence

52

Intent to Defraud

53

Punishment

55

Larceny and False Pretences Distinguished

55

CHAPTER 5: FRAUDULENT CONVERSION AND FALSE ACCOUNTING

57–71

1. Fraudulent Conversion

57

Mens Rea

68


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CONTENTS

PAGES

Fraudulent Trustees

69

Factors and Agents

69

2. False Accounting

70

CHAPTER 6: FORGERY, COUNTERFEITING AND RELATED MATTERS

72–85

Forgery

72

What is a Document?

74

Typical Instances of Forgery

79

The Meaning of “Defraud” and “Deceive”

79

Forgery and False Pretences Distinguished

80

Uttering

80

Other Statutory Provisions Relating to Forgery

82

Counterfeiting and Related Matters

82

CHAPTER 7: CHEATS PUNISHABLE AT COMMON LAW

86–89

(1) Cheats Against Public Justice

87

(2) Cheats Relating to False Weights, Measures and Tokens

88

(3) Cheats in the Provision of Unwholesome Food

88

(4) Frauds on the Revenue Authorities

88

CHAPTER 8: OTHER OFFENCES INVOLVING FRAUD

90–101

1. Bribery and Corruption

90

2. Corrupt Rewards

91

3. Obtaining Credit by Fraud

92

4. Fortune Telling

94

5. Cheating at Gaming

95

6. False Personation

95

7. Fraud by Bankrupts and Arranging Debtors

96

8. Commercial Statutory Frauds

98

9. Postal and Telecommunications Offences

99


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CONTENTS

PAGES

CHAPTER 9: OFFENCES RELATING COMPUTERS

102–111

1. The Use of a Computer to Obtain Property Dishonestly

102

(i) Larceny

102

(ii) False Pretences

103

(iii) Forgery

103

2. Hacking

104

(i) Abstraction of Electricity

104

(ii) Malicious Damage

105

(iii) The Criminal Damage Act, 1991

105

3. Interception of Communications

106

4. Theft of Information

107

(i) Unauthorised Copying of Data or Software

107

(ii) Temporary Removal

107

(iii) Unauthorised Copying

108

(iv) The Data Protection Act, 1988

109

CHAPTER 10: CONSPIRACY TO DEFRAUD

112–114

CHAPTER 11: BLACKMAIL

115–120

CHAPTER 12: ROBBERY

121–124


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CONTENTS

PAGES

PART II: PROPOSALS FOR REFORM OF THE SUBSTANTIVE LAW

125–322

CHAPTER 13: THE COMMISSIONS OBJECTIVES

125–127

A Realistic Approach

126

Options for the General Approach

127

CHAPTER 14: NO CHANGE

128–129

CHAPTER 15: THE THEFT ACT APPROACH

130–145

A. BACKGROUND TO THE THEFT ACTS

130

Origins

130

Consolidation

131

Problems Foreseen

131

Maintaining Settled Law

132

B. NEW CONCEPTS

132

(i) Appropriation

132

Experience in Practice

135

Consent

136

Some Cases: A. Irish Cases

137

B. English Cases

137

(a) The facts

137

(b) The Decisions

138

The Struggle for Reconciliation

140

(ii) Dishonesty

141

The Standard to be Applied

142

Salvo

142


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CONTENTS

PAGES

The Elliott Formula

144

Consultation

145

CHAPTER 16: THE LAW IN NEW ZEALAND

146–150

Theft

147

An Improvement?

149

Fraud

150

CHAPTER 17: THE AUSTRALIAN APPROACH

151–153

CHAPTER 18: LARCENY AS EXERCISING UNLAWFUL CONTROL OVER PROPERTY (THE MODEL PENAL CODE

154–156

CHAPTER 19: INTENTION PERMANENTLY TO DEPRIVE

157–164

A Reckless Test as to Permanent Deprivation

159

Mens Rea Test expressed in Negative Terms

160

Penalising Specific Instances of Temporary Deprivation

160

Theft from Galleries etc.

161

CHAPTER 20: WHAT TYPE OF PROPERTY SHOULD BE CAPABLE OF BEING STOLEN?

165–182

(a) Land

165

(b) Flora and Other Growing Things

171

(c) Tame Animals

172


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CONTENTS

PAGES

(d) Wild Animals

173

(e) Theft of Choses in Action, and Information

174

(i) Choses in Action

174

(ii) Information

175

CHAPTER 21: THEFT OF PROPERTY LOST, MISLAID OR DELIVERED BY MISTAKE

183-189

A. The Approach Based on a Broad Statement of Principle

183

B. The Approach Involving a Minute Disposition of Several Specific Modes of Conduct

186

The Policy Issue

188

CHAPTER 22: HUSBAND AND WIFE

190–192

CHAPTER 23: FRAUD

193–208

Obtaining by False Pretences

193

1. The Case for No Change

193

2. Changing “False Pretence” to “Deception”

194

3. The Ingredients of Deception or Fraud

195

A. Representations of Law

196

B. Misrepresentation of Opinion

197

C. Misrepresentations as to Intention

198

D. Misrepresentations Having No Pecuniary Significance

200

E. Should “Puffing” Fall Outside the Definition of the Offence?

201

F. Non-Disclosure

203

Property and Intention Permanently to Deprive

208


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CONTENTS

PAGES

CHAPTER 24: HISTORY AND DEVELOPMENT OF OFFENCES OF DECEPTION IN THE THEFT ACTS

209–216

Parliament

213

Pecuniary Advantage

214

CHAPTER 25: SERVICES

217–222

CHAPTER 26: SECURING THE REMISSION OF A LIABILITY BY DECEPTION

223–225

CHAPTER 27: MAKING OFF WITHOUT PAYMENT

226–232

CHAPTER 28: CHEQUES AND CHEQUE CARDS

233–237

(a) Cheques

233

Existing Fact

234

(b) Cheque Cards

234

Two Questionable Decisions

235

Original Proposal

236

Consultation

236

CHAPTER 29: OBTAINING, MACHINES AND COMPUTERS

238-246

The Case in Favour of Legislative Change

238

1. The Increasing Incidence of Computer Crime Shows the Inadequacy of the Present Law

238


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CONTENTS

PAGES

2. The Distinctive Nature of Misconduct Relating to Computers Calls for a Distinctive Legislative Response

240

The Case Against Legislative Change

241

1. Technical Improvements in Protection of Computers Against Criminal Interference Rather than Legislation

241

2. Changes in the Law of Theft, False Pretences and Related Matters Will Cure the Problem in Relation to Computers

242

Legislation on Access

243

Should “Computer” be Defined in the Legislation?

245

Jurisdiction

245

CHAPTER 30: FALSE ACCOUNTING

247–250

CHAPTER 31: PROCURING THE EXECUTION OF A VALUABLE SECURITY

251–253

CHAPTER 32: FORGERY

254–288

Should the Offence of Forgery be Scrapped?

254

Possible Changes to the Structure of the Offence

257

Things Capable of Being Forged

258

Mens Rea

266

The Act of Forgery

270

Examples

273

Falsity as to Circumstances

277

Actus Reus in the Model Penal Code

279

Uttering a Forgery

280

Possession Offences

282

Penalties for Forgery

287

Power of Search

287


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CONTENTS

PAGES

CHAPTER 33: COUNTERFEITING

289–291

Uttering and Possession of Counterfeit Currency and Powers of Search

291

CHAPTER 34: CONSPIRACY TO DEFRAUD

292–296

Option 1: To Retain the Offence Unchanged

292

Option 2: To Abolish the Offence

294

Option 3: To Limit the Scope of the Offence

295

CHAPTER 35: AGGRAVATED DISHONESTY

297–308

A. ROBBERY

297

B. BLACKMAIL

297

(i) The Option of Leaving the Present Law Unchanged

299

(ii) The Subjective Approach

299

(iii) The Objective Approach

302

(iv) A Hybrid Approach

302

Should Legislative Specificity be Given to the Test of Whether a Demand Is Unwarranted?

303

C. CONSENT AND DURESS

307

CHAPTER 36: CONCLUSIONS

309–322

Summary

309

Appropriation

309

Fraud

310

A Single Offence of Dishonesty

311

Human Rights

313

Due Notice

313

Overlapping Offences

315

The Model Penal Code

316

A General Offence

318

Consultation

320


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CONTENTS

PAGES

PART III: THE INVESTIGATION AND PROSECUTION OF DISHONESTY: PROPOSALS FOR REFORM

323–361

CHAPTER 37: A STATUTORY DUTY TO DISCLOSE DISHONETY

323–328

A. Disclosure of fraud

323

B. Persons in control of companies where fradulent activities occur

325

C. A statutory duty to disclose incidents of computer crime

326

CHAPTER 38: A RADICAL OVERHAUL OF INVESTIGATORY STRUCTURES?

329–343

A. Investigation of Serious Fraud: A Serious Fraud Office?

329

B. Increased Powers of Investigation?

333

C. New Power of Entry?

339

D. Power of Arrest Without Warrant?

343

CHAPTER 39: THE PROSECUTION OF DISHONESTY

344–353

A. General deficiency

344

B. Rights of election in relation to jury trial

347

C. Preliminary examination

348

D. Eligibility requirements for juries in fraud cases

348

(i) Age Limits

348

(ii) A Literacy Requirement

348

(iii) A Minimum Educational Requirement

349

(iv) Disqualification for Dishonesty

349

(v) Peremptory Challenge

349

E. Dispensing with the jury

349


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CONTENTS

PAGES

F. Pre-trial review

350

G. Explanatory evidence

351

H. Evidential aids

351

I. Penalties

351

J. Alternative verdicts

352

K. Long trials

353

CHAPTER 40: SUMMARY OF RECOMMENDATIONS

354–361

APPENDIX A

362

LIST OF COMMISSION PUBLICATIONS

363–367


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PART I: THE PRESENT LAW

CHAPTER 1: INTRODUCTION

1.1

On the 6th March, 1987, the then Attorney General, Mr John Rogers SC, requested the Law Reform Commission to formulate proposals for the reform of the law in a number of areas. These included the law relating to certain criminal offences, including in particular the laws relating to dishonesty, malicious damage and offences against the person, and matters having a direct bearing on the criminal law. The Commission has already reported on receiving stolen goods, rape, malicious damage, child sexual abuse, sexual offences against the mentally handicapped, the confiscation of the proceeds of crime, the indexation of fines and oaths and affirmations. A Discussion Paper on non-fatal offences against the person has been circulated.

1.2

We began by preparing a Discussion Paper on the subject of Dishonesty which set out the existing law and the difficulties to which it appeared to give rise, examined the law in other jurisdictions, set out the policy considerations which appeared to arise and made provisional recommendations for alterations in the law in a number of areas. This Discussion Paper was circulated among a number of persons and bodies having particular expertise in this area, including judges, barristers, solicitors, academics, accountants, financial institutions, the Irish Bankers' Federation, the Director of Public Prosecutions' Office, the Department of Justice and the Gardai. As a result, the Commission received a number of detailed and helpful commentaries in writing on the Discussion Paper and, in addition, a meeting was held at the Commission's Offices in September 1991, at which there was a large attendance of those interested. We are most grateful to all who assisted us in these ways. A list of those who sent us submissions is to be found in Appendix A.

1.3

We have since reviewed the entire subject in the light of these consultations. The present Report contains our final recommendations for reform of the law.



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1.4

In this Part we examine the present law relating to offences of misappropriation. The law is a somewhat unhappy amalgam of judicial1 and statutory contributions over the centuries, revealing a curious reluctance on the part of the courts or the legislature to address the basic policy issues underlying the several specific offences.

1.5

We shall consider the offences separately. It is as well to record at the outset that they cannot properly be understood in isolation: to a large extent one offence grew out of another. This historical process has left the law in an asymmetrical state, with overlaps between offences and gaps where clearly dishonest conduct falls outside the criminal sanction.


1

In Hehir, [1895] 2 IR 709, at 722 (Cr Cas Res), Gibson J noted that the law of larceny, as developed by the courts,

“abounds ... in arbitrary exceptions and intangible distinctions, without any clear foundation in principle or common sense'.



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CHAPTER 2: LARCENY1

2.1

Section 1 of the Larceny Act, 1916 provides as follows:

“For the purposes of this Act –


(1)


a person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof: provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner:


(2)



(i)


the expression “takes” includes obtaining the possession –


(a)


by any trick;


(b)


by intimidation;


(c)


under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained;


(d)


by finding, where at the time of the finding the


1

See generally McCutcheon, passim, Russell, vol 2, chs 51–65, 70–79, O Siochain, chs 11, 13, 23, Kenny, chs XIII-XVII, XIX-XX, Smith & Hogan (1st ed), 344–482, Anon, The Law of Stealing, 95 Ir LT & Sol J 201, 207 (1961).



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finder believes that the owner can be discovered by taking reasonable steps;


(ii)


the expression “carries away” includes any removal of anything from the place which it occupies, but in the case of a thing attached, only if it has been completely detached;


(iii)


the expression “owner” includes any part owner, or person having possession or control of, or a special property in, anything capable of being stolen:


(3)


Everything which has value and is the property of any person, and if adhering to the realty then after severance therefrom, shall be capable of being stolen:

Provided that –


(a)


save as hereinafter expressly provided with respect to fixtures, growing things, and ore from mines, anything attached to or forming part of the realty shall not be capable of being stolen by the person who severs the same from the realty, unless after severance he has abandoned possession thereof; and


(b)


the carcase of a creature wild by nature and not reduced into possession while living shall not be capable of being stolen by the person who has killed such creature, unless after killing it he has abandoned possession of the carcase.”

As we shall see, this is far from the whole story,2 but at least it starts us on the way.

The Thing Stolen must be “Capable of Being Stolen”

2.2

The expression “anything capable of being stolen” codifies the common law rules on the subject. “Briefly stated, the thing must be tangible, moveable, of value and the property of somebody.”3

(i) The thing must be tangible

A thing may be tangible, however slight its density. Thus, gas,4 when contained,


2

It is noteworthy that the section defines stealing, not larceny, but “this did not purport to make any change in the common law of larceny as it was then understood to be”: Kenny, para 222.

3

McCutcheon, para 41.

4

White, Dears, 203, 169 ER 696 (1853), Firth, LR 1 CCR 172 (1869).



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may be stolen; similarly water5; so also, in principle, may electricity.6

(ii) The thing must be the subject of human ownership

2.3

Some things are not the subject of human ownership at all, and thus cannot be stolen. These include human corpses,7 at all events before they have undergone natural or artificial changes.

One cannot be guilty of “theft of or from the environment”, by misappropriating air or sea-water, for example; where such phenomena have been collected and contained in some way by humans, however, it seems that they may be stolen.8 Thus one may be convicted of larceny of water supplied by a water company to consumers, and standing in the company's pipes.9

Derelict things, having no owner, cannot be the subject of larceny.10 Whether or not goods have been abandoned is sometimes a more difficult question than might at first appear.

2.4

The law distinguishes between animals mansuetae naturae and those ferae naturae so far as they may be the subject of larceny. Animals in the former category may be stolen,11 as may their produce (such as their wool or eggs). Animals in the latter category, by and large, are not the subject of larceny, unless they have come under human control.

Control may be found to exist where the wild animals have been tamed, for example, or caught12 or in cases where they are so young that they cannot escape from the landowner's control.13


5

Kenny, para 262.

6

Scotting and Rasjke, [1957] Grim L Rev 241 (a very briefly reported decision involving larceny of electricity consumed by the making of a series of telephone calls without payment). The Larceny Act, 1916, section 10 (reenacting the Larceny Act, 1861, section 23) provides that “[e]very person who maliciously or fraudulently abstracts, causes to be wasted or diverted, consumes or uses any electricity” is to be guilty of felony and or conviction liable to be punished as in the case of simple larceny. By virtue of The Electricity (Supply) (Amendment) Act, 1942, section 6(1), an offence under section 10 of the 1916 Act may be prosecuted summarily: see further McCutcheon, para 62. As to mens rea, whether “maliciously” should be treated as an alternative to “fraudulently” is not clear: cf McCutcheon, para 63; such an interpretation could result in indefensible anomalies: id. A provision analogous to section 10 is the Postal and Telecommunications Services Act, 1983, section 99. In England, in the controversial decision of Low v Blease, [1975] Crim L Rev 513 the Queen's Bench Divisional Court held that making telephone calls without payment did not constitute theft under English Theft Act, 1968, as the electricity could not be described as “property” within the meaning of section 4 of the Act and the defendant's action did not amount to “appropriation”. The inclusion of a specific provision (section 13) dealing with the abstraction of electricity and the fact that such a small use of electricity, if held to amount to theft, would transform a trespasser into a burglar, doubtless weighed with the Court.

7

Sharpe, Dears & Bell 160 (1857) “It is a common law misdemeanour to remove a corpse from a burial ground”. McCutcheon, para 42, fn 71.

8

Id.

9

Ferens v O Brien, 11 QBD 21 (1883).

10

Kenny, para 263, Peters, 1 C & K 245 at 247, 174 ER 795, at 795 (1843).

11

This was not the position at common law, where domestic animals such as dogs and cats were not the subject of larceny. Section 21 of the Larceny Act, 1861 made the theft of domestic animals a summary offence; section 18 specifically provided for the theft of dogs. Section 5 of the Larceny Act, 1916 prohibits the theft or unlawful possession of dogs after a previous summary conviction for such an offence (under section 18 of the 1861 Act) and the corrupt taking of rewards for recovering stolen dogs.

12

Cf Clinton, IR 4 CL 6, at 14 (Cr Cas Res, per Whiteside, CJ 1869).

13

Cf id, Kenny, para 264.



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Where animals e.g. hens and ducks, are not closely confined but nonetheless, after being free to wander, have the habit of returning to a particular place, they may be the subject of larceny.14

2.5

It should be noted that statute has intervened15 to make criminal the taking of certain such animals, including deer,16 hares or rabbits in warrens at night,17 and fish from waters on land adjoining or belonging to dwellinghouses.18

Section 1(3)(b) of the 1916 Act provides that the carcase of a creature wild by nature and not reduced into possession while living is not capable of being stolen by the person who has killed the creature, unless after killing it he has abandoned possession of the carcase. A similar provision19 applies to the larceny of things severed from the realty. We will examine the notion of abandoning possession in these two contexts presently.

(iii) The thing must have an owner

2.6

The thing stolen must have an owner.20 Ownership here is broadly construed, extending to the degree of possession sufficient to warrant a claim in trespass.21 It appears that, notwithstanding the “wide and vague words”22 of section 1(2)(iii) of the 1916 Act, this minimum requirement is still part of the law.23

(iv) The thing must neither be realty nor savour of realty

2.7

Land has never been the subject of larceny. However, section 8(1) makes it punishable as in simple larceny to steal (or, with intent to steal, to rip, cut, sever or break):


(a)


any glass or woodwork belonging to any building; or


(b)


any metal or utensil or fixture, fixed in or to any building; or


(c)


anything made of metal fixed in any land being private property, or as a fence to any dwelling-house, garden or area, or in any square or street, or in any place dedicated to public use or


14

Kenny, para 265.

15

Kenny, para 266.

16

Larceny Act 1861, section 12–16.

17

Id, section 17.

18

Id, section 24.

19

Section 1(3)(a).

20

Kenny, para 261.

21

Id, Smith, 2 Den 449, 169 ER 576 (1852), Townley, LR 1 CCR 315 (1870), Immer, 13 Cr App Rep 22 (1917).

22

Kenny, para 261.

23

Id. The requirement is a necessary, but not sufficient, element of the actus reus of theft. Thus, wild animals in their natural state are not the subjects of larceny, even though the landowner or his surrogates may have sufficient property in them ratione soli to maintain an action for trespass or conversion for interference with them: cf Case of Swans, 7 Co Rep 15b, at 17b, 77 ER 435, at 438 (1592).



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ornament, or in any burial ground.”24

Moreover, section 11 deals with the larceny of ore from mines; this constitutes felony with a maximum term of imprisonment of two years.

Section 1(3)(a) provides that things adhering to the realty may be stolen after severance therefrom, provided that (save as specified in sections 8 and 11):

“anything attached to or forming part of the realty shall not be capable of being stolen by the person who severs the same from the realty, unless after severance he has abandoned possession thereof.”25

A similar provision,26 as we have seen, applies to the larceny of the carcase of an animal ferae naturae.

Title Deeds

2.8

Legal fictions got in the way of common-sense in relation to the larceny of title-deeds. Since they were “identified”, with the land, they were not larcenable.27 Section 7(1) of the 1916 Act abolished this exemption, making the theft of these documents a felony carrying a maximum penalty of five years' penal servitude.

Documents Relating to Choses in Action

2.9

At common law there was an “artificial principle”28 that the documentary evidence of a right was identified with the right itself, so that, “if the subject of the right could not be stolen then equally the document could not be stolen”.29 On this basis, documents or instruments evidencing the right to a chose in action – such as promissory notes – were not larcenable.30 Other justifications for this rule were that the documents were either “of no intrinsic value”31 or of indeterminate value, such that it was not possible to say whether or not they were worth more than the 12d – which marked the boundary between


24

The theft of trees and shrubs, and of plants, roots or vegetable production in gardens, orchards, pleasure grounds, nursery grounds, hothouses, greenhouses or conservatories is similarly made a felony under sections 8(2) and (3).

25

In Billing v Pill, [1954] 1 QB 70, it was held that an army hut which was bolted to a concrete base was not attached to the realty, for the purposes of section 1(3)(a). Lord Goddard, CJ succeeded in interpreting the words “attached to or forming part of the realty” as meaning “attached so as to form part”. It seemed to him “odd” that a thing could be attached to the realty and yet not form part of the realty. For critical analysis, see Smith, Stealing a Hut, [1955] Crim L Rev 404. Cf Skujins, [1956] Crim L Rev 266. See also the, apparently, conflicting English and Irish decisions in Townley IR ICCR 315 (1871), and Foley, 26 LR IR 299 (Cr Cas Res, 1889) and the Commentary In McCutcheon, para 43.

26

Section 1(3)(b).

27

See Kenny, para 275.

28

Id, para 276.

29

Id.

30

Id.

31

Murtagh, 1 Cr & Dix CC 355, at 357 (Doherty, CJ, 1840).



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petty and grand larceny.32

2.10

Statutes have long since modified the position. Section 6 of the Larceny Act, 1916 provides that the larceny of a will, codicil or other testamentary instrument, either of a deed or of a living person, is a felony, punishable by penal servitude for life. And section 7 deals (as we have seen) with the larceny of documents of title to land. It also prohibits the larceny of judicial records and documents and other official papers and documents.

Moreover, sections 27 to 30 of the Larceny Act, 1861 punish the destruction, obliteration or cancellation for a fraudulent purpose, of documents of title, choses in action, wills and records.

(v) The thing must have some value

2.11

If a thing taken lacks any value it cannot be the subject of theft. For the purpose of the law of larceny, “only economic value (and not, for example, sentimental or artistic value) is taken into account”.33

This judicial approach has greatly facilitated prosecutors over the years; they have been able to obtain convictions for dishonest conduct largely falling outside the scope of the offences against property by framing indictments for the larceny of items of infinitesimally small value, such as the paper of cancelled bank notes34 and of a worthless cheque.35

It may perhaps be noted here that it is not a good defence to a charge of larceny that the accused left by way of exchange something of a value equal to, or in excess of, the value of the thing taken. The only defence open to the accused would be a possible lack of mens rea, either because he believed that the owner consented or because he believed he had a legal right to take the thing.36

Taking and Asportation

2.12

Section 1(1) of the 1916 Act, as we have seen, provides that a person steals who “... takes and carries away ...” the stolen item; and section 1(2)(ii) provides that the expression “carries away” includes “any removal of anything from the place where it occupies ...”. There are thus two essential elements in this aspect of the actus reus: taking and asportation.


32

Cf Kenny, paras 275, 296, in Lanauze 11 ILR 407 (QB, 1847), see also Watts, Dears 326, 169, ER 747 (1854), Crone, Jebb Cr & Pr 47 (1825) (bank notes), Murtagh, 1 Cr & Dix CC 355, at 357 (Doherty CJ, 1840) (promissory note).

33

Kenny, para 269. See Edwards 13 Cox 384 (CCA, 1877), Morris, 9 C & P 349, Clarence, 22 QBD 23, at 52 (Cr Cas Res, 1888), Bingley, 5 C & P 602, 172 ER 1118 (1833).

34

Clark, R & R 181, 168 ER 749 (1810).

35

Perry, I C & K 725, 174 ER 1008 (1845).

36

Kenny, para 282.



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The taking constitutes a trespass to the article stolen.37 As regards the asportation, the courts have not required that the extent of the distance be substantial.38

Possession

2.13

Larceny has always been conceived as an offence against possession.39 This approach is reflected in section 1(2)(iii) of the 1916 legislation, which defines “owner” as including “any ... person having possession or control of, or a special property in”, anything capable of being stolen.

The notion of possession in larceny is far from simple. The courts have developed refined distinctions between “physical” and “legal” possession: larceny is committed against those with legal rather than merely physical possession. These distinctions can best be understood as reflecting robust policy decisions rather than as giving effect to any deep theoretical structure.

As Kenny notes:

“[q]uite early, ... the desire of property owners to enjoy the protection which the fierce sanctions of the criminal law of felony could give them against the dishonesty of their servants or guests led the judges to create the artificial doctrine of 'legal' ... possession as distinguished from actual


37

Cf McMahon & Binchy, 535, Gahan v Malngay, Ridg Lap & Scho 62 (1793), Conway v Archdall, 1 Bat 182 (1826), Sligo Corporation v Gilbride, [1929] IR 351 (Sup Ct,) Whelan v Madigan, [1978] ILRM 136 (High Ct, Kenny, J), Cooney v Cooney, 54 ILTR 60 (Gordon, J, 1920).

38

See Coslet, 1 Leach 236, 168 ER 220 (1782), Cherry, 1 Leach 236, n(a), 168 ER 221 (1781), cf Lapier 1 Leach 321, 168 ER 263 (1784) where the defendant was held rightly convicted of robbery for pulling an ear-ring from a woman's ear, the ear-ring later being found among the curls of her hair. “The Judges were all of opinion that it was a sufficient taking from a person to constitute robbery; for it being in the possession of the prisoner for a moment, separate from the lady's person, was sufficient, although he could not retain it, but probably lost it again the same instant....” In Mills, 1 Frewen 153 (CAA, 21 October 1955), the applicant had been charged and convicted under section 2 with simple larceny from a shopper. A prosecution witness gave evidence that she had seen the appellant's left hand withdrawing the victim's purse right out of her bag. She told the victim, who, on checking, found that the purse was in the bag but that the bag was open. The Court of Criminal Appeal took the view that, if the witness's evidence were accepted in its entirety, it clearly established the offence of larceny from the person under section 14, and that accordingly, on previous authority, the conviction should be set aside. Counsel for the prosecution contended that the jury were not bound to accept the witness's observation as infallible; and might reasonably have considered that, while accepting her as a truthful witness, she might have been mistaken in her observation as to the degree of asportation that had taken place. Moreover, nobody's attention appeared to have been directed to the importance of the degree of asportation and the jury had received no instruction with regard to the matter. The Court of Criminal Appeal did not accept this line of argument. Davitt P (for the Court) said (at p55):

“It seems to us that if they had been properly instructed upon the point they might well, and indeed in all probability would, have accepted [the witness]'s evidence as to the purse having been withdrawn completely from the bag. If they did they must have acquitted the accused of simple larceny. The failure adequately to instruct the jury may have resulted in the accused being deprived of a reasonable chance of acquittal. In these circumstances we are of opinion that the conviction cannot stand.”

See also Simson, Kel 31, 84 ER 1068 (1664) (defendant took plate out of a trunk and laid it on the floor, but was apprehended before he carried it away; held (unanimously) that such removal amounted to larceny). Cf Taylor, [1911] 1 KB 674. In Keating [1989] ILRM 561, Lynch J held that, where a person takes goods from a supermarket shelves with fraudulent intent permanently to deprive their owner of them, the proposition that the supermarket owner must be assumed to consent to that person's possession of the goods so long as he or she remains on the supermarket premises was “quite untenable in law or in fact”.

39

Kenny, para 227. See also Edwards, Possession and Larceny, [1950] Current Legal Prob 127.



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physical control. Under this fiction the owner was treated as retaining 'legal' possession notwithstanding that he allowed the actual physical control of the thing to pass into the hands of his servant or of his guest.”40

(i) Servants' possession

2.14

It is worth noting briefly how servants gradually become enmeshed in criminal liability for disposing of their masters' goods. The doctrine of the master's legal possession initially extended only to the control by the servant of the article while still on the master's land or premises.41 Moreover, prior to statutory clarification42 in 1542, it appeared doubtful whether a servant could be guilty of theft, even within the master's premises, where the article had been expressly committed to his charge.43

Gradually, however, the scope of the servant's legal possession was constricted until finally the rule became that the servant never had legal possession of his master's property which he controlled by virtue of his position as servant. To this there was an exception: property given to the servant by a third party to pass on to his employer was regarded as conferring legal possession on the servant.44

(ii) Delivery of goods for a temporary, special or limited purpose45

2.15

A series of cases has held that the owner of an article retains legal possession where he parts company with it briefly in circumstances where he would reasonably assume that the person exerting temporary control over the article would hand it back virtually immediately. It is very difficult to construct a convincing principled rationale for treating this kind of case differently from one of bailment or trust.

(iii) Bailees' possession

2.16

The general rule originally was that a bailee who misappropriated the property entrusted to him was not guilty of larceny, since he had taken the property into his possession and carried it away with the consent of the owner.46


40

Kenny, para 228.

41

Id, para 229.

42

33 Hen VIII, c 5 (1542). The English equivalent, 21 Hen c 7, had been enacted thirteen years previously.

43

Kenny, para 229.

44

Kenny, para 229. Legislation in England in 1799 (6 & 7 Geo 5, c 50, s 17) (an equivalent Act applying to Ireland in 1811 (51 Geo III, c 38) made misappropriation by a servant of property thus reaching him the offence of embezzlement: cf infra, p99). Edwards, op cit, at 134 notes that “Stephen in his History of the Criminal Law, Vol 3, at p152, suggests that the reason for this gap in the criminal law [before the 1799 legislation] was the excessive severity with which a mere debtor could be treated. In the case of a servant, his master could arrest him on mesne process and having got judgment, imprison him for an indefinite time or till payment”.

45

See McCutcheon, para 36, Chisser, T Raym 275 (1678), see also Williams, 6 Car & P 390, 172 ER 1289 (1834) (change for half-crown passed to defendant on reasonable but erroneous belief, induced by defendant, that defendant would give the half-crown to the person who passed the change to defendant; held: defendant guilty of larceny for appropriating the change), Thompson, Le & Ca 225, 169 ER 1373 (1862), Brennan, 1 Cr & Dix, CC 560 (1840), Colhoun, 2 Cr & Dix Circ R 57 (1840).

46

Kenny, para 231.



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Later the notion of “breaking bulk” emerged: if the bailee broke into the “unit of property”47 entrusted to him, he was considered to have brought the bailment to an end and thereby lost possession of the property. Any subsequent asportation by the “former” bailee would thus constitute larceny.48

Kenny puts it bluntly:

“In truth the new rule was arbitrary and rested on no sound principle at all.”49

Statute50 intervened in 1857 and, as we have seen, the “absurd reasoning of the common law invention”51 has no place in the Larceny Act, 1916, the proviso to section 1(1) of which is to the effect that a person may be guilty of stealing something notwithstanding that he has lawful possession of it if, being a bailee (or part owner) of it, he fraudulently converts it to his own use or the use of any person other than the owner.

Who Is a Bailee?

2.17

We must now consider the question as to how and when a bailment is created. The essence of the concept is that of delivery of goods on a condition or trust that they are to be restored to the transferor or according to his directions as soon as the purpose for which the goods are delivered has been achieved.52 It is not necessary that the bailment be supported by a valid, enforceable contract.53

Cases not usually amounting to a bailment include the receipt of purchase money by an auctioneer from a purchaser or of rent by a land-agent from a tenant. Where the recipient is a clerk or servant of his principal – a bus conductor or shop assistant, and he is required to hand over to his employers all money received in the course of employment, he may be liable either for embezzlement (where the money is appropriated before it passes into the employer's possession) or larceny at any time thereafter. Where no such duty exists, he may be charged with fraudulent conversion.54


47

Id, para 233.

48

The Carrier's Case, YB Pasch 13 Edw 4 Pl 5 (1473), 64 Selden Society 30 (1948), Kenny, para 232, fn 5, Stephen, A History of the Criminal Law of England, vol 3, 139–140 (1883). The question has arisen in relation to possession of drugs: see Duncan, Drug Offences and Strict Liability, 104 ILT & Sol J 161, 171, 181, 187, 198, 207 (1970). More generally see Leigh, 32–36.

49

Kenny, para 233.

50

Punishment of Frauds Act 1857.

51

Kenny, para 233.

52

Id, para 244.

53

See McDonald, 15 QBD 323 (1885), Clegg, IR 3 CL 166 (Cr Cas Res, 1869), Buckall, Le & Ca 371, 169 ER 1436 (1864), De Banks, 13 QBD 29 (Cr Cas Res, 1894), Aden, 12 Cox 512 (1873).

54

See Kenny, paras 242–3.



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Conversion By Bailee Constitutes Larceny

2.18

It will be recalled that the proviso to section 1(1) of the Larceny Act, 1916 (reproducing with modifications section 4 of the Punishment of Frauds Act, 1857) provides that a person may be guilty of stealing something as a bailee (or part owner) if he “fraudulently converts the same to his own use or the use of any person other than the owner”. In Rogers v Arnott,55 the English Queen's Bench Division held that the attempted larceny of a tape-recorder by a bailee amounted to fraudulent conversion and that thus the defendant had been rightly acquitted of attempted larceny since he was guilty of the complete offence of larceny. Donovan J (with whom Lord Parker CJ and Davies J concurred) rejected the argument that there had been no fraudulent conversion because the owner had been deprived of nothing “and, as in the case of the civil tort of conversion, some detriment to the owner is essential to the commission of the wrong”.56 Donovan J said:

“I think that the proposition is doubtful and the analogy is in any event misleading. Conversion per se has been defined in a civil action as an act intentionally done inconsistent with the owner's right ... The analogy is misleading because no civil action is possible unless the true owner has suffered damage; but this is not so in the case of a criminal prosecution for fraudulent conversion. One cannot therefore, determine for the purpose of the criminal law whether there has been a conversion simply by asking whether the true owner has suffered damage. He might indeed recover the article intact, but this would not of itself prevent a prosecution of the dishonest bailee.”57

2.19

Donovan J approved of Turner's view, expressed in Kenny and Russell, both of which works Turner edited. Kenny58 had stated:

“Exactly what constitutes the 'conversion' which involves the bailee in the guilt of stealing, has not been authoritatively stated. The prisoner must have possession of the goods, otherwise he would not be bailee, and then, as it would seem, any conduct on his part which shows that he assumes either the full title of ownership in the goods, or asserts a right to pass the full title of ownership, will amount to such conversion as will render him guilty of stealing them within the statute.”

And in Russell59 the author had this to say:

“It is unfortunate that the term 'conversion' does not appear to have been given a precise definition either judicially or in the text-books. But for the purposes of the law of larceny it is submitted that it is necessary that the offender should have possession of the goods, and that when


55

[1960] 2 All ER 417.

56

Id, at 418–419.

57

Id, at 419.

58

16th ed, para 245. See also the 19th ed, para 245.

59

16th ed, p1095.



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possession has been obtained any setting up by the offender of a full title to the property in himself, adverse to that of the owner, if done without a bona fide claim of right will render him guilty of larceny.”

Larceny by a Trick

2.20

If a misappropriation by a bailee amounted to “breaking bulk”, the courts had no hesitation in characterising this as larceny. But cases could occur where the bailee had clearly acted dishonestly but had not “broken bulk”. In Pear,60 in 1779, the defendant had hired a horse in London, giving an address to the livery-stable-keeper beforehand and saying that he would ride the horse to a destination in Surrey and return the horse by 8 p.m. In fact he sold the horse that day; the jury found that at the time of the hiring, he had no intention of going to Surrey and that at this time he had intended to sell the horse. The Judges of the Court for Crown Cases Reserved “differed greatly in opinion”.61 The majority thought that the question as to the original intention of the prisoner in hiring the horse had been properly left to the jury; and as they had found that his view in so doing was fraudulent, “the parting with the property had not changed the nature of the possession, but that it remained unaltered in the [owner] at the time of the conversion; and that the prisoner was therefore guilty of felony”.62

2.21

It seems clear that Pear can be understood properly only if it is regarded as involving a naked policy determination, indefensible in terms of civil law notions of contract where they impinge on the issue. In Du Jardin v Beadman Bros Ltd,63 in 1952, Sellers J accepted and adopted Russell's views on Pear, which, Sellers J noted, had been “so clearly expressed and so well supported by authority and argument”.64Russell65 had stated:

“The argument on which the case of R v Pear was decided was that the fraudulent intention of the transferee at the inception of the transaction in some way negatived in law the consent of the owner to do what he in fact did, namely, to put the horse in the hands of Pear so as to make him bailee of it. If this doctrine were sound there is no logical escape from the conclusion that the existence of the like fraudulent intention ought to have the same effect, so as to negative the consent of the owner, when the transaction is not one of purported bailment involving the transfer of possession merely, but when the transaction is, for example, one of the purported sale, involving the transfer of the ownership of the chattel .... The decision of the judges in Pear's case that the deceit which eliminated the consent which the owner intended to give when he regarded himself as parting with merely the possession


60

1 Leach 212, 168 ER 208 (1779). See Lowe, Larceny by a Trick and Contract, [1957] Crim L Rev 28, 96.

61

1 Leach, at 213, 168 ER, at 209.

62

Id, at 213–214, and 209, respectively.

63

[1952] 2 All ER 160 (QB Div, Sellers, J).

64

Id, at 163.

65

Russell on Crime, 10th ed, vol 2, pp1087–1089.



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of his chattel would not have the same effect when he regarded himself as parting with something greater, namely, the ownership of it, was firmly maintained by subsequent courts in a multitude of cases .... The doctrine of the Pear case was anomalous, but it was highly important since it did much to expand the common law of larceny to meet a social need. It was widely applied, and the special offence which it covered came to be known as 'larceny by a trick', an inapt name which has caused a good deal of confusion in later law.”66

2.22

Following the 1857 legislation, there was no longer any need for the prosecution to try to show that the defendant had the intention from the beginning of misappropriating the article coming under his control.

In the meantime Pear's case proved an effective authority for prosecuting as larceny several fraudulent schemes such as ring dropping, whereby a ring was “discovered” by a cheat close to the intended victim; the cheat would manage to convince the victim that the ring was valuable and that they both should share in its value if only the victim would give the cheat some security in return for being given the ring to dispose of.67

The requirement that from the beginning of the bailment, the bailee should have the intention to steal was emphasised in the Irish case of Rogers.68 The defendant was convicted of larceny where he had ordered a suit of clothes from a draper and took the draper to an inn in order (as he claimed) to obtain the money for the suit from the defendant's brother, who he said was there. Having taken the draper to a room upstairs, the person left the room, ostensibly to locate his brother. He never returned. He was later found some distance away, with the suit under his arm.

Crampton J, in charging the jury,69 stressed that the question they had to try was whether, from his conduct, they could:

“necessarily arrive at the conclusion that [the defendant] had this fraudulent intention in his mind at the time he ordered the suit. For, if he ordered it to be cut with the expectation of being able, or with the intention, to pay for it, this indictment cannot be sustained”.70

2.23

In Buckmaster,71 in 1887, a welshing bookmaker was held guilty of


66

Russell had gone on to express the following conclusion (at p1102).

“By the decision in Pear's case a new crime was created which was purely arbitrary and did not rest upon principle.”

67

See Patch, 1 Leach 238, 168 ER 221 (1782), Moore, 1 Leach 314, 168 ER 260 (1784). See also Watson, 2 Leach 640, 168 ER 422 (1793), and Hollis, 12 QBD 23 (Cr Cas Res, 1883). Cf Rodway, 9 C & P 784, 173 ER 1052 (1841), criticised by Kenny, para 235.

68

IR Cir Rep 284 (Crampton J and Jury, 1841).

69

Id, at 284–285.

70

Id, at 285.

71

20 QBD 182 (Cr Cas Res, 1887).



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larceny in spite of the fact that the person who had placed the bet with him had intended to part finally with the coins he had handed over to the bookmaker. If this person had intended to pass property, rather than mere possession, in the coins, the relevant offence would have been false pretences72 rather than larceny.

Lord Coleridge CJ was of opinion that the conviction ought to be affirmed for two reasons. First, a parting with the property in goods could be effected only by contract; here “there was nothing in the shape of a contract by which the property could pass, for if the prosecutor meant to part with the money, it was on the terms that the prisoner should do something with it, that is, should return the money to the prosecutor if the horse won. But the prisoner did not do so, and never intended to do so”.73 Secondly, the Chief Justice considered that:

“the prosecutor deposited the money with the prisoner, not intending to part with the property, for he was to have his money back in a certain event, whereas the prisoner when he received the money never intended to give it back in any event. It is true that the prosecutor would have been satisfied if he had received back, not the identical coins which he deposited, but other coins of equal value, but that does not show that he meant to part with his right to the money. In my opinion the evidence clearly shows that he meant to do nothing of the kind.”74

2.24

Kenny is strongly critical of the decision. He notes that the English Court for Crown Cases reserved:

“took a strange view of the evidence and in effect held as a fact that when a man on a race-course made a bet with a bookmaker and handed over in cash the amount of his bet, receiving in return the usual betting card, he did not part with his ownership of the coins but merely deposited them by way of bailment with the bookmaker; notwithstanding that in his evidence the prosecutor had made it plain that he never expected or desired to have back the same particular coins which he had handed to the bookmaker.”75

The better approach to the problem of the welshing bookmaker today may be to treat the case as one of fraudulent conversion rather than larceny.76


72

The 1857 legislation (in contrast to section 44(3) of the Larceny Act, 1916) did not make it possible to convict for false pretences where the sole charge was for larceny: cf Kenny, para 236.

73

20 QBD, at 185.

74

Id, at 186.

75

Kenny, para 236. Kenny notes that:

“it was not clear on the evidence that Buckmaster at the time the money was first handed to him (an essential element in the Pear doctrine of larceny by a trick) intended to welsh; an intention to do so can seldom arise until the bookmaker finds that his commitments are such that if a particular horse wins he will not have enough money to pay those who backed it.”

Perhaps this understates the extent to which Buckmaster was willing to welsh; the intention to do so may well have been present, subject perhaps, to a willingness to pay up if it turned out that he had enough to pay all backers.

76

See Kenny, para 236.



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treat the case as one of fraudulent conversion rather than larceny.76

Consent

2.25

As has been mentioned, section 1(1) of the Larceny Act, 1916 provides that, to commit larceny, the defendant must have taken and carried away the thing that is stolen.

The concept of consent is a difficult one in this context. The courts have attempted to do two things at the same time: to discern the presence or absence of actual psychological willingness as a matter of fact, on the part of the owner that the thing be taken, and to develop what might be called the legal notion of “constructive consent”, whereby the limits of the owner's consent are determined by legal factors which do not ultimately involve reference to the owner's actual psychological state. Thus, on the latter approach, an owner may be held not to have consented to a taking when in fact the owner never had any view, one way or the other, as to the limits of the consent he was giving to the taking of the item.

The relationship between these two approaches will be examined presently. First it is desirable to consider the issue of consent in four specific contexts: obtaining possession by a trick, intimidation, mistake and larceny by finding.

(i) Obtaining possession by a trick

2.26

As we have seen, section 1(2)(i) of the 1916 Act provides that the expression “takes” includes obtaining the possession by any trick. The requirement in section 1(1) that the taking be without the owner's consent continues to apply. The crucial distinction here drawn by the courts is between consent to transfer the ownership in the goods which, if induced by a trick, may render the wrongdoer guilty of obtaining the goods by false pretences,77 and consent to transfer possession in them, which, if similarly induced, may render the wrongdoer guilty of larceny.78

As the contract cases79 dealing with fraud as to personalty show, it can be far


76

See Kenny, para 236.

77

Of section 32 of the 1916 Act. See also Caslin, [1961] 1 All ER 246 (CCA, 1960), and Anderson v Ryan, [1967] IR 34 (High Ct, Henchy J).

78

Cf Sutton, [1966] 1 All ER 571 (CCA).

79

See Clark, 139–140 Cheshire, Fifoot & Furmston, 241–245. Cf Kenny, para 248, interpreting Cundy v Lindsay, 3 App Cas 459 (1878) as necessarily involving Blenkam's guilt of the offence of larceny. The decision has, however, not met with universal acclaim: see Clark 139, Cheshire, Fifoot & Furmston, 242. So far as the judges in the case addressed Blenkiron's position at common law, their comments are less than fully enlightening.

Lord Cairns LC noted that Blenkam “was acting here just in the same way as if he had forged the signature of Blenkam & Co, the respectable firm, to the applications for goods, and as if, when, in return, the goods were forwarded and letters were sent, accompanying them, he had intercepted the goods and intercepted the letters, and had taken possession of the goods, and of the letters which were addressed to and intended for, not himself, but the firm of Blenkam & Co” 3 App Cas, at 465. Lord Hatherley referred (id, at 468) to Higgins v Burton, 26 LJ (Ex) 342, where, in relation to a somewhat differently structured fraud, Pollock CB had said: “There was no sale at all, but a mere obtaining of goods by false pretences; the property, therefore, did not pass out of the plaintiffs”.



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from easy to say whether the owner intended to pass ownership to the wrongdoer: he may in one sense have “intended to contract with” the wrongdoer, as the physical entity across the counter, but in another sense, he may have “intended to contract with” the individual the wrongdoer pretended to be, especially where that individual possessed a characteristic (such as wealth or a skill) not shared by the wrongdoer.

2.27

A more straightforward case of larceny by a trick is where a wrongdoer, by “ringing the changes”, or other similar scheme confuses the owner into handing over property.

Although from the owner's actions he may seem to be consenting to transfer of the ownership of the property, closer examination of the facts shows that this is not the case.80 The borderline between larceny and false pretences is difficult to draw in certain instances. Some courts have adopted a robust approach and have upheld the conviction of the defendant for larceny; others have examined the issue more analytically and found that the facts justify false pretences rather than larceny. What the courts have yet to do is provide a coherent analytic rationale for finding of larceny in this type of case.

An example of the above approach is Hollis.81 The defendants by a series of tricks fraudulently induced a barmaid to pay over money to them. The essence of the fraud was that they succeeded in convincing her that she had merely given change out of a half-sovereign for a small purchase, while in fact she finished up handing over the change plus a half-sovereign. Their convictions for larceny were affirmed.

Lord Coleridge LCJ (Denman, Hawkins, Williams and Mathew JJ concurring) reduced the issue to very simple terms:

“I cannot see if a person goes into a place and fraudulently, by a series of tricks, obtains possession of property from another which that other has no intention of parting with, how the offence can fail to be larceny. It is clearly stealing ....”82

2.28

In contrast in Williams,63 the defendant, a customer in a shop, had pretended to place two shillings in the till when in fact he only placed a shilling there. The shop assistant, believing that two shillings had gone in, gave him change of that amount. The defendant was acquitted. Martin B during argument, observed that the shop assistant appeared “to have laid the money


80

Cf Kenny, para 249.

81

12 QBD 25 (Cr Cas Res, 1883).

82

Id, at 26. In the Irish case of Roper, 1 Cr & Dix CC 185 (1832), the defendant was indicted for stealing a half-crown piece from the prosecutor and also for uttering a base half-crown piece to the prosecutor. Both charges arose out of the same transaction, “which is commonly known by the name of 'ringing the changes'”: id, at 85. The defendant was convicted of both charges, to the surprise of the prosecution authorities, who had neither expected nor wished that he be convicted of the second charge. Smith B after mentioning the matter to another judge, permitted the prosecution authorities to enter a nolle prosequi afterwards.

83

7 Cox 355 (1857).



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down upon the counter for the prisoner to take up; that amounts to a parting with the property in it, and there cannot be a conviction for larceny”.84 He also said:

“The case against the prisoner here is, that he pretended that he had returned the whole of the money, when in reality he had returned one shilling. He cannot, therefore, be convicted upon the indictment, though it might be otherwise if he had been indicted for obtaining the shilling by false pretences.”85

So also in Thomas,86 the defendant and another man had been drinking together in a beer house. The landlady was unable to give change for the man's sovereign; the defendant offered to go out and get change. The man gave him the sovereign. The defendant left and later misappropriated it.

The defendant was acquitted. Coleridge J having conferred with Gurney B said:

“It appears quite clear that the prosecutor having permitted the sovereign to be taken away for change, could never have expected to receive back again the specific coin, and he had therefore divested himself, at the time of the taking, of the entire possession in the sovereign, and consequently, I think, that there was not a sufficient trespass to constitute a larceny.”87

2.29

A person may be guilty of larceny by a trick, not only where he induces another to part with the possession of goods in a state of psychological confusion but also where he interferes with a vending machine so as to release from it a product which quite clearly the owner would not have intended the machine to disgorge in such circumstances. As Kenny88 observes:

“The property is plainly taken invito domino just as completely as if the machine had been broken open, or unlocked by a skeleton key, since the owner has indicated that he only consents to pass the ownership of the contents of his machine if the correct money is first put into it”.

In Hands89 the defendant used a brass disc, the size and shape of a penny, to obtain a cigarette from a cigarette vending machine. On the fact of the box there were two inscriptions, one stating: “Only pennies, not halfpennies”, the other stating: To obtain [a ....] cigarette place a penny in the box, and push the knob as far as it will go”.

The English Court of Crown Cases Reserved affirmed the conviction for larceny.


84

Id, at 356.

85

Id, at 357.

86

9 Car & P 741, 173, ER 1033 (1841).

87

Id, at 742, and 1034, respectively.

88

Cf Kenny, para 249.

89

16 Cox 188 (Cr Cas Res, 1887).



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It appeared to Lord Coleridge, CJ (Pollock B, Stephen, Mathew and Wills, JJ concurring) that

“in a case of th[is] class .... there clearly was larceny. The means by which the cigarette was made to come out of the box were fraudulent, and the cigarette so made to come out was appropriated.”90

We will examine later in this paper the question whether this principle extends to the abstraction of materials from computers.

(ii) Larceny by intimidation

2.30

Section 1(2)(i)(b) of the Larceny Act, 1916, as we have seen, extends the expression “takes” to obtaining possession by intimidation. This reflects the previous law.

In Lovell,91 a travelling grinder, given six knives to grind, demanded of the woman who owned the knives that she pay over four times the going rate. When she refused, he “assumed a menacing attitude, kneeling on one knee, and threatened [her], saying, 'You had better pay me, or it will be the worse for you'; and 'I will make you pay'.”92 The woman “was frightened, and in consequence of her fears gave the sum demanded”.93

The English Court for Crown Cases Reserved upheld the conviction for larceny, considering that McGrath94 was “conclusive” of the matter“.95

(iii) Larceny by obtaining under mistake of owner

2.31

Section 1(2)(i)(c) of the Larceny Act, 1916, as we have seen, provides that the expression “takes” includes obtaining the possession “under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained”.

This provision is “the child of”96 the difficult decision of Middleton97 in 1873, where the English Court for Crown Cases Reserved held that defendant who had received a payment from a Post Office clerk of an amount higher than that to which he was entitled, was guilty of larceny. The clerk had consulted the wrong letter of advice and the defendant was aware of the error. The Court was of opinion that the clerk had passed possession rather than ownership of the money either because he had no authority to pass ownership or because, if he had such authority, this mistake meant that he had not consented to do so.


90

Id, at 190.

91

8 QBD 185 (Cr Cas Res, 1881).

92

Id, at 186.

93

Id.

94

(1869) ICCR 205.

95

8 QBD, at 186.

96

Smith & Hogan, 1st ed, 354.

97

LR 2 OCR 38 (1873).



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The decision has been widely criticised. As Kenny observes:

“What was overlooked by most of the judges who affirmed the conviction was that the clerk made no mistake whatever as to the transfer of the money: he was quite well aware of what he was doing. His mistake related to his reason for doing it”.98

2.32

There is some uncertainty as to the nature of the mistake which falls within the scope of section 1(2)(i)(c). A mistake can of course range from one as to the person to one as to the nature, quality or value of the property. On one view Middleton can be interpreted as involving a mistake as to identity;99 on another, it might be considered a case of mistake as to the amount of money to be paid.100Smith & Hogan contend that, save where the person mistakenly transfers ownership of the goods, “the kind of mistake is irrelevant”.101Kenny, who, as we have seen, criticises Middleton on the basis that the clerk's mistake “related to his reason for doing”102 what he did, goes on to state:

“This can hardly be the kind of mistake contemplated by the Act, for if it were so, then difficulties would arise in distinguishing the felony of larceny under section 1 from the misdemeanour of obtaining by false pretences under section 32; it would also make it a felony for a skilled collector of antiques to purchase an object which an ignorant owner had consented to sell at a price below its real value”.103

In Moynes v Cooper,104 an employee, having received an advance on his wages, later was paid the full amount of his wages by the wages clerk, in ignorance of the advance. When he received these wages from the clerk, the employee was not aware of the error, but he later opened the packet containing the wages, discovered the error, and kept the contents.

The Queen's Bench Division held that the employee should not have been convicted of larceny.

Lord Goddard, delivering the judgment of the majority, noted that the 1916 Act “was not intended to alter the law and had not done so. Section 1(2)(i)...(c) affirms the common law that the taker must have animus furandi at the time when he takes the property. The defendant had no such animus at the relevant time”.105


98

Kenny, para 252.

99

Smith & Hogan, 354.

100

Id.

101

Id.

102

Kenny, para 252.

103

Id.

104

[1956] 1 QB 439.

105

Id, at 444–445.



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(iv) Larceny by finding

2.33

As we have seen, section 1(2)(i)(d) provides that the expression “takes” includes obtaining the possession “by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps”. This provision is unhappily drafted. As Kenny points out, “it uses the word 'finding' as meaning 'taking after having found'”.106 This is because “[a] man 'finds' a thing when he discovers exactly where it is, even though he does not move or even touch it, still less 'take and carry it away'”.107 Moreover, the provision deals with the easy case of when a person will clearly be guilty rather than seeking to remove the cloud of uncertainty surrounding the question of when obtaining property some time after the finding should constitute larceny.108

Consent of the Owner Implied when Lost Goods are Found109

2.34

It has for long been accepted110 that an honest finder does not commit trespass to the goods found, while he is preserving them for the owner. This absence from liability may be based on the presumed consent of the owner;111 as well as the fact that the finder does not intend to deprive the owner of the goods.

The mental state of the finder is of cardinal significance. Thus, the test is not whether in fact the owner could easily be found but rather whether the finder, at the time of the finding, believed that he could be so found.112

In Deaves113 in 1869, the Irish Court of Criminal Appeal, by a 4–3 majority, quashed the conviction of the defendant whose young daughter had given her six sovereigns she had found on a street in Cork city. The defendant had counted the sovereigns and told a companion that she would give the companion a treat of porter. She later went with the child to where the child had found the money and there found another half sovereign and a bag. The owner of the property, a poor woman, was met by a friend of the defendant about two hours later, lamenting the loss of the sovereigns. The friend told this to the defendant, and told her where she believed the owner lived, but the defendant told her friend to mind her own business. The next day she gave her half a sovereign of the money for herself.

2.35

Although the Court was narrowly divided as to the inferences to be


106

Kenny, para 253. (It seems that some such word as “immediately” should be inserted between “taking” and “after” in Kenny's suggested interpretation).

107

Id, fn 1.

108

Id, para 253. See also Turner, Two Cases of Larceny, ch 19 of L Radzinowicz & JWC Turner, eds, The Modern Approach to Criminal Law, at 372–373 (1945).

109

See Kenny, para 253.

110

Cf Kenny, para 253, citing (1467) YB 7 Edw IV, 3, pl 9, (per Nedham J); Isaack v Clark, (1615) 2 Bulstr 306, at 312, 80 ER 1143, at 1148 (per Coke CJ).

111

Cf Kenny, para 253.

112

Knight, 12 Cox 102 (1871) (especially Pigott B and Lush J's judgments). See also Thurborn, 1 Den 387, at 389, 169 ER 293, at 293–294 (1848), Preston, 2 Den 353, 169 ER 535 (1851).

113

11 Cox 227 (1869).



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drawn from the facts, there was no disagreement as to the relevant legal principles. Whiteside CJ for the majority said:

“the rule that every larceny must include a trespass has never been controverted, and, as I think there was no trespass in taking these sovereigns, the prisoner ought not to have been found guilty of larceny .... There is nothing to show that at the time the child brought in the money the prisoner knew the property had an owner, or, at all events, to show that she was under the impression that the owner could be found.”114

Fitzgerald J, dissenting, thought that there was:

“quite enough evidence to show that the prisoner believed that the owner of the money could be found. Her first act was to conceal the amount and to buy the silence of those who knew that she had gotten the money. Glyde is no authority to quash this conviction, inasmuch as there was no evidence in that case to show belief on the prisoner's part that the owner of the money could be found, while the smallness of the amount raised the presumption of abandonment. In this case all the three ingredients spoken of by Wightman J, in Moore are present.”115

It is worth noting that O'Brien J, for the majority, while feeling constrained by authority, including Thurborn,116 to quash the conviction, expressed the view that “[t]he legislature ought to interfere, as it has already done in the case of bailees”.117

This is an interesting point, worth highlighting, as it shows that, at all events by 1869, the courts looked to the legislature to improve the law so as to make the law coincide with accepted moral norms. This would suggest that by then the days of bending legal rules to secure convictions were coming to an end.118

As we have seen, section 1(2)(i) of the Larceny Act, 1916 provides that the expression “takes” includes obtaining the possession:

“by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.”


114

Id, at 230.

115

Id.

116

Supra.

117

11 Cox, at 230.

118

In the light of Whiteside, CJ's remarks regarding the relationship between trespass and larceny, it is helpful to record Kenny's statement that:

“... there can be no larceny without trespass but there can be trespass without larceny (even when committed animo furandl, e.g. where the wrongdoer unsuccessfully uses force to detach a bicycle which is chained to the railing of a house, or a watch from the chain which attaches it to its owner's clothing). Furthermore, an owner of land has a 'qualified property' (propter impotentiam) in such creatures ferae naturae as are too young to fly or run away, and may maintain a civil action of trespass against anyone who without his permission takes them off the land, although such taking is not larceny.”Kenny, para 253.



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The Property of Husband and Wife

2.36

In several respects, the common law adopted the metaphor of the convergence into one legal person of husband and wife.119 Thus, for example, the crime of conspiracy could not be committed by husband and wife alone120; nor did the publication of a defamatory statement by one spouse to the other constitute actionable defamation.121 As Kenny notes:

“This principle harmonised well with the old doctrine of the common law that the goods and chattels of a married woman belonged to her husband and were held to be equally in the possession of both. From this developed the rule that an appropriation of his goods by her would not constitute a larceny.”122

As an exception to this rule, a person with whom the wife committed adultery could be convicted of larceny where he assisted her in taking goods from the husband.123

2.37

Section 9 of the Married Women's Status Act, 1957 provides as follows:


(1)


Subject to subsection (3), every married woman shall have in her own name against all persons whomsoever, including her husband, the same remedies and redress by way of criminal proceedings for the protection and security of her property as if she were unmarried.


(2)


Subject to subsection (3), a husband shall have against his wife the same remedies and redress by way of criminal proceedings for the protection of his property as if she were not his wife.


(3)


No criminal proceedings concerning any property claimed by one spouse (in this subsection referred to as the claimant) shall, by virtue of subsection (1) or subsection (2), be taken by the claimant against the other spouse while they are living together, nor, while they are living apart, concerning any act done while living together by the other spouse, unless such property was wrongfully taken by the other spouse when leaving or deserting or about to leave or desert the claimant.


(4)


In any criminal proceedings to which this section relates brought against one spouse, the other spouse may, notwithstanding anything to the contrary in any enactment or rule of law, be called as a witness either for the prosecution or defence and without the consent of the person charged.


119

See Williams, The Legal Unity of Husband and Wife, 10 Modern L Rev 16 (1947).

120

Kenny, para 450; cf Glover, Conspiracy as Between Husband and Wife, 9 Family L 181 (1979).

121

Cf McDonald, 141.

122

Kenny, para 254. See also Harrison, 1 Leach 47, 168 ER 126 (1756).

123

See Featherstone, Dears 369, 169 ER 764 (1854), Thompson, 2 Cr & Dix CC 491 (1842).



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(5)


In any indictment or process grounding criminal proceedings in relation to the property of a married woman, it shall be sufficient to allege the property to be her property.”

As we have noted in our Report on Receiving Stolen Property,124 the English Court of Criminal Appeal construed125 an equivalent statutory provision as meaning, not simply that a spouse falling within its scope could not be prosecuted, but that no crime was committed by that spouse. Thus the person receiving goods which would have been stolen goods save for that provision was held not guilty of the offence of receiving since they were not stolen goods. The decision is in some respects a technical one, and there is always the possibility that an Irish court would come to a different conclusion in the light of a consent-based analysis.

It should perhaps be noted here that, in Walsh126 in 1981 the Supreme Court held that the presumption of marital coercion was inconsistent with the Constitution. Thus the old law127 on the subject of marital coercion and larceny has been rendered redundant.

Mens Rea

2.38

The mens rea of the offence of larceny has given rise to some difficulty. As we have seen, three elements are involved: the taking and carrying away must be done (i) fraudulently, (ii) without a claim of right made in good faith, and (iii) with the intent, at the time of the taking, permanently to deprive the owner of the thing stolen. Each of these elements requires separate examination.

(i) “Fraudulently”128

2.39

Until recently the courts did not trouble themselves with the question whether the defendant's conduct had been fraudulent. It may have seemed beyond argument that a person who took another's property without claim or right, intending to deprive him of it permanently, could not be considered to have been acting other than fraudulently.

At one time it was considered that larceny would be committed only where the defendant took the item for the purpose of personal gain to himself.129 This seems to have been the result of a loose statement by Blackstone,130 to the effect that the taking and carrying away:


124

LRC 23–1987, para 34.

125

In Creamer, [1919] 1 KB 564.

126

[1981] IR 412 (Sup Ct).

127

See Connolly and Hughes, Cr & Dix Ab Not Cas 280 (1838), Collins, IR Circ Rep 138 (1841); see also the cases cited in LRC No. 23–1987, p54, fn 125.

128

See Lowe, The Fraudulent Intent in Larceny, [1956] Crim L Rev 78, Smith, The Fraudulent Intent in Larceny: Another View, [1956] Crim L Rev 238.

129

Kenny, para 283.

130

Blackstone, Commentaries on the Laws of England vol 4, ch 17, s1 (p232) (17th ed, by E Christian, 1830).



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“must also be felonious; that is, done animo furandi: or, as the civil law expresses it, lucri causa”.

2.40

In Cabbage131 in 1815, a different approach gained prominence. The defendant, convicted of larceny, had taken away a gelding and destroyed it to protect a friend who had already been charged with larceny, “the object being that the horse might not contribute to furnish evidence against”132 the friend. The majority of the Court for Crown Cases Reserved upheld the conviction. Six133

“held it not essential to constitute the offence of larceny, that the taking should be lucri causa; they thought a taking fraudulently, with an intent wholly to deprive the owner of the property sufficient; but some of the six learned judges thought that in this case the object of protecting [the defendant's friend] by the destruction of this animal might be deemed a benefit or lucri causa”.134

Five judges135 thought the conviction wrong. Their reasons are not stated in the report.

Kenny explains that:

“[t]he argument was still used, however, especially for cases occurring from time to time in which a servant was prosecuted for larceny of his master's fodder, which, contrary to the master's orders, he took to give to the master's own horses which he thought needed more fodder than the master allowed them. To harmonise the law with public opinion on these cases the legislature in 1863 intervened by a statute136 which provided in effect that such conduct should only be a petty offence, with power to the justices to dismiss the charge, even if proved, without proceeding to conviction. After this enactment the doctrine with regard to lucrum became obsolete, and since it does not appear either directly or by implication in the Larceny Act, 1916, it must be taken not to be the law now, even if indeed it ever had been.”137

2.41

In Williams,138 in 1953, the English Court of Criminal Appeal sought to inject meaning into the word “fraudulently” in section 1(1) of the 1916 Act. Lord Goddard CJ said:


131

Russ and Ry 292, 168 ER 809 (1815).

132

Cf Richards, 1 C & K 532, at 533, 174 ER 925, at 926 (per Richards, counsel for the prosecution (1844).

133

Richards, B, Bayley & Chambre, JJ, Thomson, CB, Gibbs, CJ and Lord Ellenborough.

134

Russ & Ry, at 293, 168 ER, at 809–820. In O'Donnell, 2 Ir Jur NS 210, at 212 (Cf of Crim App 1857) counsel for the Crown cited Cabbage 'as an authority to show that, to constitute larceny, the taking need not necessarily be lucri causa'. The matter was not addressed in the judgment.

135

Dallas, Le Blanc & Heath, JJ, and Wood and Graham, BB.

136

Misappropriation by Servants Act, 1863. This Act applied to England only.

137

Kenny, para 283.

138

[1953] 1 QB 660 (CCA).



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“The court thinks that the word 'fraudulently' does add, and is intended to add, something to the words 'without a claim of right' and that it means (though I am not saying that the words I am about to use will fit every case, but they certainly will fit this particular case) that the taking must be intentional and deliberate, that is to say, without mistake. The person who takes the property must know when he takes it that it is the property of another person, and he must take it deliberately, not by mistake, and with an intention to deprive the person from whom it is taken, of the property in it. A very simple illustration would be that of a person who picked up a suitcase at a railway station believing that it was his. There, the taking is under a mistake and he is not taking it fraudulently. Of course, if he knows that it is not his own, as is the case with those people who haunt the railway stations for the purpose of stealing suitcases, then it is larceny; but if a person, although he is not setting up a claim of right against someone else, takes away a suitcase in the mistaken belief that it is his own,139 he is not acting fraudulently. We think that the word 'fraudulently' in section 1 must mean that the taking is done intentionally, under no mistake and with knowledge that the thing taken is the property of another person.”140

Kenny was not won over by this analysis:

“[i]t is ... respectfully submitted that if this is the meaning to be given to 'fraudulently', the word is unnecessary, and therefore superfluous. For the later words of the definition in section 1, 'with intent, at the time of such taking, permanently to deprive the owner thereof', plainly show the necessity for proof of intention, while the same words are quite sufficient to indicate that the taker must act 'with knowledge that the thing taken is the property of another person'; moreover if a taker honestly thinks that it is his own property which he is taking or thinks that he has the consent (whether express or implied) of the owner, even then the omission of 'fraudulently' would not injuriously affect him since he would still have the defence of 'claim of right made in good faith'.”141

In a supporting footnote, Kenny142 states:

“It would also be inadmissible to argue that 'fraudulently' carries the meaning of 'deceit', since an element of deceit is not a legal requirement for larceny; it would, for example, be absurd to suggest that a man who openly snatches up my bag and runs off with it is not a thief.”

2.42

In Halloway,143 Parke B suggested that the phrase “wrongful and fraudulent” in East's Pleas of the Crown“probably means 'without claim of right'”.


139

Sed quaere: in such a case there is surely an implicit claim of right.

140

[1953] 1 QB, at 666.

141

Kenny, para 280.

142

Id, para 280, in 5.

143

3 Cox 241, at 244 (Cr Cas Res, 1849).



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Once the latter element is specifically mentioned in section 1 of the 1916 Act in conjunction with “fraudulently” this may indicate either (a) that Parke B's explanation was not correct; (b) that it was correct but is no longer correct since the passage of the 1916 Act; or (c) that it was, and still remains, correct, in which case the inclusion of “fraudulently” may be considered surplusage.

2.43

In Wallace,144 a fifteen year old boy was indicted for stealing a jacket, vest and trousers, the property of the guardians of the Newtownards Union. He had been admitted into the workhouse as a pauper. At the time of his admission his own clothes had been taken from him and the articles of clothing in question given to him by the workhouse officer. After spending about a fortnight as an inmate, he had applied to the guardians for his discharge and the restoration of his own clothes. They had refused, alleging that he was too young to be discharged. Shortly afterwards the defendant had surreptiously left the workhouse, wearing the clothes supplied there to him.

Brady CB directed an acquittal, stating:

“The guardians had no right to detain the prisoner, or to keep his clothes, contrary to his wishes; and it seems a harsh proceeding to indict him for a felony, because, having vainly sought the restoration of his clothes, he quitted the workhouse in the clothing which the guardians compelled him to wear.”145

This statement offers no clear conceptual basis for the directed acquittal. The reference to harshness may suggest that the Chief Baron proceeded ex misericordia but his unqualified statement that the guardians had had no right to act as they had done implies a more principled justification. We can only speculate as to what that should be: perhaps necessity,146 the lack of fraudulent conduct on the part of the defendant or (more weakly) a claim of right.

(ii) Claim of right

2.44

Section 1(1) of the Larceny Act, 1916, as we have seen, provides that a person is guilty of larceny only where he takes the item “without a claim of right made in good faith”. It has from the earliest of times been accepted that an honest belief by the defendant that he has the right to take the item affords him


144

3 Cr & Dix CC 120 (Brady CB and Jury, 1843).

145

Id, at 121.

146

In the law of tort, it is generally accepted that to confine a person by taking their clothes, leaving them with the option of walking naked out of the area of confinement, should constitute false imprisonment. The victim of this type of conduct would seem entitled to plead necessity in availing himself of the opportunity to wear clothes supplied by the defendant. The Court in Wallace did not address the question whether the defendant had intended permanently to deprive the guardians of the clothes in which he made his escape.



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a defence even where this belief is unreasonable.147

Kenny gives the following instances of a successful bona fide claim of right:


(1)


Where something is seized by a landlord in a distress for rent under a mistaken idea that some rent is due, or in ignorance that the article seized is one which is privileged by law from being distrained on.


(2)


Where corn is taken by a gleaner, honestly and openly, in a locality where gleaning is customary, although not lawful.


(3)


Where the taker believes that the other has abandoned the thing; or that what he is taking is his own property; or that it is something which he has a right to take, whether as an equivalent of his own property or with a view to mere temporary detention (e.g. by lieu).”148

The fact that the defendant acted openly may afford support to his defence based on a bona fide claim of right.149

Where the defendant believed that he was entitled as partially-unpaid vendor of a horse, to fetch it back, he was held to have been improperly convicted.150

2.45

Winstanley v Caravan151 is a troublesome decision. Prosecutions were brought against two workmen for the larceny of several pairs of unfinished boots, worth £3.10.0, the property of their employer Mr Winstanley. They had pawned the goods entrusted to him. It was argued on their behalf that their conduct amounted to a breach of contract only, in that their employer held in respect of each of the defendants an indemnity from a Guarantee Society, to an amount of £10 for work and materials entrusted by him to the defendants.

Mr Barton, who tried the case, held that the proper approach was for the defendants to be prosecuted for the summary offence152 of unlawful disposition of an employer's work or materials of a value not exceeding £5. He made it clear, however, that he saw no objection to a conviction by reason of the existence of the indemnity. It is worth recording in full his observations on this issue:


147

Kenny, para 281. See also Bernhard, [1838] 2 KB 264, approved in Grey, [1944] IR 326 (CCA) (a decision on fraudulent conversion) and in O'Loughlin, [1979] IR 85 (CCA, 1978) (a decision on larceny). In both Grey and O'Loughlin the Court of Criminal Appeal rejected the proposition that the fact that a claim is not well founded in law or in fact should deprive the defendant of the defence of claim of right made in good faith. In both cases the Court held that the honesty of the belief sufficed. In neither is it expressly stated that an honest but unreasonable belief is sufficient but this is consistent with both and may be considered implicit in the generality of the reference to the honesty of the belief.

148

Kenny, para 281 (footnote references omitted).

149

Cf Curtiss, 18 Cr App Rep 174 (CCA, 1925).

150

Clay, 3 Cr App Rep 92 (1909).

151

8 ILTR & Sol J 639 (Dublin Metrop Police Ct, 1874).

152

Under 25 & 26 Vict, c50, s7.



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“The question raised is an important one, because of the prevalence in Dublin of a trade's custom of guarantees such as these, and of the existence of much doubt and confusion as to their legal effect. I found from the evidence that the impression existed widely among operatives that the effect of such an indemnity is to leave them free to pawn, or otherwise dispose of their employers' property entrusted to them, provided its value be within the limit of £10 – the sum prescribed by the Society's guarantee. I am clear that the form of indemnity proved in this case creates no conflict whatever between civil and criminal proceedings, and that if a larceny had been committed and proved, an indictment would lie. In fact a printed notice at the foot of the Society's form of Indemnity seems to have been framed with a view to anticipate such objection as I have heard raised, and also with a distinct reference to the observations of Tindal, CJ, in Kier v Leenan, 9 QB, 236, a leading modern authority on the compromise of offences.”153

The case makes no reference to the question of a claim of right, though it is difficult to see why it should not be relevant in view of “the existence of much doubt and confusion” as to the legal effect of inducements and the impression which “existed widely among operatives” that they were free to pawn goods (as the defendants had done) if covered by such an indemnity.

(iii) The intent permanently to deprive the owner of the thing stolen

2.46

The requirement in section 1(1) of the 1916 Act that the accused should intend permanently to deprive the owner of the thing taken, reflects the common law as it had developed in the nineteenth century.154

In Cabbage155 in 1815, six of the judges “thought a taking fraudulently, with an intent wholly to deprive the owner of the property sufficient”. Yet in a decision thirty four years later, the slow development of the law on this matter is apparent.

In Holloway,156 the defendant had moved certain dressed skins from one place to another in a tannery where he was employed the (unsuccessful) aim being to mislead his employer into paying him for work on the skins which he had not done. The English Court for Crown Cases Reserved reversed his conviction for larceny.

Lord Denman CJ said:

“If I thought the question was open upon the authorities, I must say that a great deal might be urged in support of the proposition, that these


153

8 ILT & Sol J, at 639.

154

Kenny, para 284.

155

Russ & Ry 292, at 293, 168 ER 809, at 809 (1815) (emphasis added).

156

3 Cox 241 (Cr Cas Res, 1849).



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facts show a larceny to have been committed; because the owner is deprived of his property for sometime, and the probability is that the interest distinguishing the case from larceny may be altered. The case which I put, of borrowing a horse for a year, without the owner's consent, with intent to ride it through England and then return it, shows this. But if we say that borrowing alone would constitute larceny, we are met by similar cases the other way. With regard to the definition of larceny, we have of late years said that there must be an intention to deprive the owner permanently of his property, which was not the intention in this case. We are not disposed to encourage nice distinctions in the criminal law, yet it is an odd sort of excuse to say to the owner, 'I did pretend to cheat you in fact, and to cheat my fellow workmen afterwards'. This, however, is not an act which is not punishable; for if it is not a misdemeanour, which at the first sight it appears to be, it is an act done towards counselling that misdemeanour. We must abide by former decisions, and hold that a conviction for larceny cannot in this case be supported.”157

Parke J was of the same opinion:

“We are bound by the authorities to say that this is not larceny. There is no clear definition of larceny applicable to every case: but the definitions that have been given, as explained by subsequent decisions, are sufficient for this case. The definition in East's Pleas of the Crown is on the whole the best; but it requires explanation, for what is the meaning of the phrase 'wrongful and fraudulent'? It probably means 'without claim or right'. All the cases, however, show that, if the intent was not at the moment of taking to usurp the entire dominion over the property, and make it the taker's own, there was no larceny. If, therefore, a man takes the horse of another with intent to ride it to a distance, and not return it, but quit possession of it, he is not guilty of larceny. So in Webb,158 in which the intent was to get a higher reward for work from the owner of the property. If the intent must be to usurp the entire dominion over the property, and to deprive the owner wholly of it, I think that that essential part of the offence is not found in this case.”159

Coltman J said:

“We must not look so much to definitions, which it is impossible a priori so to frame that they shall include every case, as to the cases in which the ingredients that are necessary to constitute the offence are stated. If we look at the cases which have been decided, we shall find that in this case one necessary ingredient, the intent to deprive entirely and


157

Id, at 244.

158

1 Moo CC 431, 168 ER 1332 (1835).

159

3 Cox, at 244.



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permanently, is wanting.”160

2.47

This principle was accepted in the Irish decision of Breen,161 in 1843, where the defendant who found an envelope containing cheques and a bank note dallied in returning it to their owner in the hope of getting a reward, writing an anonymous letter to the owner stating that a person had found the envelope. Brady CB thought that, if the jury believed that the defendant found the letter and kept it with such a hope, they should acquit, but that if he had taken (rather than found) the envelope with the same intent, or for the purpose of extorting money from the holder, they should convict. (The jury acquitted the defendant).

If this case suggests that a person is not guilty of a crime who takes property with the intention of returning it to the owner whether or not the owner pays a “reward”, but with the intention of trying to induce him to pay such “reward”, then the case would appear to be contrary to the present law.

2.48

Even in cases where the defendant has not the moral status of a finder, the courts will be reluctant to characterise as larceny the holding on to property with the intention of abstracting a reward for its return.

Where a person, wrongfully takes something and sells it to another, it is clear that he will be guilty of larceny even though that other may in turn sell or give it back to the true owner. Kenny comments that:

“Although it may not be so easy to appreciate it at first sight, the same result follows, and for the same reason, if X, having taken the thing, forthwith deceives the owner into thinking that the article was a different one which did not already belong to him, and thereby induces him to buy it.”162

In Beecham,163 a railway porter was charged with the larceny of two railway tickets. It was argued on his behalf that, even if he had taken the tickets with a view to their use, he must have intended that they should be returned to the railway company at the end of the journey (as would be the case in the normal course of business), and that there thus had been no such absolute taking away without an intention of restoration as was necessary to constitute a felony. Patteson J responded that in his opinion, it was a question for the jury to say whether the defendant had taken the tickets “with an intention to convert them to his own use and defraud the company of them”.164 In charging the jury he


160

Id. Holloway was approved in Poole, Dears & Bell 345, 169 ER 1034 (1857). Contrast the facts of Richards, 1 C & K 532, 174 ER 925 (1844), where a somewhat similar scheme involved the melting down of the employer's property at a loss greater than the value added to the product processed by the defendant; the case was left to the jury, who convicted of larceny. It seems clear that, even if the value to the employer's had been enhanced, the defendant should still have been convicted since he had deprived his employer of property which he returned to the employer only by a subterfuge. Cf Kenny, para 286.

161

3 Cr & Dix, CC 30 (Brady CB and jury, 1843); also reported, less fully, sub nom Burn, ir Cir Rep 773.

162

Kenny, para 286 (footnote references omitted).

163

5 Cox 181 (Oxford Circuit, Patheson J, and jury, 1851).

164

Id, at 182.



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is reported as having told them:

“that if the prisoner took the tickets with intent to use them for his own purposes, whether to give to friends, or to sell them, or to travel by means of them, it would not be the less larceny though they were to be ultimately returned to the company at the end of the journey.”165

The jury acquitted.

The case is difficult to interpret. On one view Patheson J could be considered to have dispensed with the requirement that there be an intention to deprive the owner of the goods permanently. The stress on the alleged conversion of the tickets to the defendant's own use suggests that this, rather than such an intention, was perceived to afford the relevant test. On another view, Patteson J may be considered to be offering a particular solution – perhaps policy-based – to the problem of the furtum usus.

It is interesting that Patteson J engaged in no metaphysics. Contrast this to the judicial handling of the theft of cheques. Kenny166 states that a distinction:

“must be made between a completely inscribed cheque and the material paper of the cheque form, which paper passes through the hands of the bankers concerned back into the possession of the drawer.”

Statutory Modifications

2.49

From what has been said above it will be clear that it is not larceny to take another person's car and drive away in it unless one has the intention of depriving him of it permanently. Joyriders are thus not normally guilty of larceny.167 Statute has, however, intervened. Section 12 of the Road Traffic Act, 1961, as amended by section 65 of the Road Traffic Act, 1968 and section 3 of the Road Traffic (Amendment) Act, 1984, deals with the position. A person must not “use or take possession of” a mechanically propelled vehicle without the consent of its owner or other lawful authority.168 Where possession of a vehicle has thus been taken, a person who knows of the taking is not to allow himself to be carried in or on it without the consent of its owner or other lawful authority.169 A similar offence applies in respect of the use or taking possession of a pedal cycle without its owner's consent.170

It is a good defence to a charge for any of these offences for the defendant to show that, when he did the act alleged to constitute the offence, he believed on


165

Id, at 182–183.

166

Kenny, para 284.

167

Cf Addis, 1 Cox 78 (1844), McCutcheon, para 46. In Crump, 1 Car & P 658, 171 ER 1357 (1825), the defendant, a thief who had taken a horse for use as a get-away, was acquitted of larceny of the horse.

168

Section 65 of the Road Traffic Act, 1968, substituting a new subsection (1) for the original subsection (1) of section 112 of the Road Traffic Act, 1961.

169

Id. See generally Pierse, section 4.10.

170

Section 65(3) of the 1961 Act.



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reasonable grounds that he had lawful authority for doing that act.171

“At the Time of Such Taking”172

2.50

As we have seen, section 1(1) of the Larceny Act, 1916 requires that the intent permanently to deprive the owner of the thing stolen must exist “at the time of” the taking.173 This requirement is in harmony with the approach of the courts in older cases. Thus the finder of property which he believed at the time of the finding to have no traceable owner and who later found out who owned the property but then resolved to keep it was not guilty of larceny for having succumbed to this temptation.

Difficulties – verbal, conceptual and by way of policy – arose in cases where a person acquired property in circumstances where the physical reception of the property preceded by some time his mental appreciation that he had actually done so. The matter was complicated where the recipient knew from the outset that he had received something, but was initially mistaken as to its nature, qualities or value. Locked in the definition of larceny is troublesome linguistic question of whether it can properly be said that a person “takes” property (i) at the time when he physically receives it, in ignorance of its existence, true nature or qualities or (ii) at the time when he actually becomes aware of its existence, true nature or qualities. Neither option is totally satisfactory, since the notion of taking is premised in ordinary linguistic usage on a temporal coincidence between physical acquisition and mental appreciation of what is being acquired.

The definition of larceny as involving “taking” thus proved to be inadequate, not because it let guilty men go free but because it failed even to address the question of the criminality of a particular range of dishonest conduct.

2.51

Courts were conscious of the policy implications of holding in such cases, either that the “taking” was at the time of physical acquisition or that it was at (or shortly after) the time the recipient became aware of the true position. The former holding would exempt the recipient since it would mean that at the time he took the property he had no fraudulent intention; the latter holding would make him guilty of larceny. The former solution suffered from the difficulty that it involved ascribing to an individual an act of “taking” where he had, and could have had, no such intention at the time of physical acquisition. The latter ascribed the act of “taking” to what was essentially a mental act – it was thus described as a case of larceny, not by finding, but by finding out.

The courts struggled with the issue, the leading cases involving fundamental divisions among the judges.


171

Id, section 112(5).

172

See generally Carter, Knowledge, Ignorance and Animus Furandi, [1959] Crim L Rev 613, Cross, Russell v Smith Reconsidered, [1958] Crim L Rev 529, Anon, The Intent in Larceny, 87 Ir LT & Sol J 1, 11 (1953).

173

See McGowan, 1 Cr & Dix, CC 162, fn (6) (1824), Anon, id, 162, Breen, 3 Cr & Dix, CC 30, at 32–33 (Brady CB and jury, 1843) (reported, less fully, sub nom Burn, Ir Cir Rep 773), Shea, 1 Ir Jur NS 244 (1854) Moynes v Coopper, [1956] 1 QB 439. Cf Beard, Jebb Cr & Pr Cas 9 (1822).



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As a threshold to our analysis we must first mention the distinct case of appropriation following conduct which amounted to a trespass to the owner's property.

2.52

In Riley,174 the defendant had left 29 lambs overnight in another person's field, with that person's permission, at the price of one penny per head. Early the following morning, he removed, as he believed, the 29 lambs, but later an intended purchaser, with whom he was negotiating to sell the flock, pointed out that it comprised 30 lambs. Realising that he must have innocently misappropriated a lamb belonging to another party, the defendant resolved immediately to dispose of the lamb to the intended purchaser, who thereupon bought the 30 lambs.

The English Court for Crown Cases Reserved held unanimously that the defendant had properly been convicted of larceny of the lamb. Pollock CB accepted that it might “reasonably be said not to be a violation of any social duty” for a man who finds a lost article to take it home for the purpose of finding out the true owner”; if he does this honestly in the first instance, and afterwards, though he may have discovered the true owner, is seduced into appropriating it to his own use, he is not guilty of larceny, though he does wrong”.175 In all the cases where the courts had excused a subsequent misappropriation the original possession had not been wrongful:

“But in the case now before the Court, the prisoner's possession of the lamb was from the beginning wrongful. Here the taking of the lamb from the field was a trespass; or if it be said that there was no taking at that time, then the moment he finds the lamb he appropriates it to his own use. The distinction between the cases is this: if the original possession be rightful, subsequent misappropriation does not make it a felony; but if the original possession be wrongful, though not felonious, and then a man disposes of the chattel, animo furandi, it is larceny.”176

Parke B said:

“The original taking was not lawful. The prisoner being originally a trespasser, he continued a trespasser all along, just as at common law, a trespass begun in one country continued in another, and, being a trespasser, the moment he took the lamb with a felonious intent, he became a thief. He at first simply commits a trespass; but as soon as he


174

Dears, at 157, 169 ER, at 677 (1853).

175

Id.

176

Dears, at 158, 169 ER, at 678.



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entertains a felonious intent that becomes a felonious trespass.”177

Riley has been applied in the later English decision of Ruse v Read178 where the defendant who took a bicycle when too drunk to have the mens rea to steal, having sobered up and discovered that it was not his own, took steps indicating a clear intention to appropriate it. Australian decisions are in substantial accord.179

In Ireland, Riley was referred to in Hehir180without complaint.

2.53

We now must consider the cases that do not involve an initial trespass. Judicial analysis has been complicated by the intrusion of the notion of legal possession into the discussion of what constitutes “taking”. In Cartwright v Green181 and Merry v Green,182 the principle had been accepted that one could not possess something of whose existence one was unaware.

The English Court for Crown Cases Reserved addressed the issue in Ashwell,183 in 1885. The defendant asked a drinking companion in a public house for a shilling, saying that he would repay him the following morning. The companion agreed, and, putting his hand in his pocket, pulled out what both of them believed to be a shilling. Shortly afterwards the defendant discovered that it was in fact a sovereign; he thereupon fraudulently appropriated it to his own use. He was convicted of larceny of the sovereign. The judges of Court for Crown Cases Reserved were equally divided, so the conviction stood.

2.54

In Flowers184 a year later the same Court distinguished Ashwell. The defendant, who had on opening the bag containing his wages discovered that he had been underpaid. Having taken the money from the bag, he returned the empty bag to his employer's cashier's clerk and asked for the balance due to him. The clerk gave him the money due, together with a bag which he believed to be the defendant's bag but which was in fact that of another employee. It contained money which the defendant later appropriated. The case stated by the Recorder


177

Id. Whether Riley was in fact guilty of trespass has been doubted. McCutcheon, para 17, has observed that:

“to constitute a continuing trespass the initial taking must be wrongful, in the sense of its being wilful or negligent. But in Riley it could only be said with a long stretch of the imagination that the taking was negligent, much less wilful. Rather the accused's taking of the sheep was inadvertent and should have been regarded as innocent.”

In contrast Fleming (5th ed), 75 states:

“One who misappropriates another's property (as by ... taking his sheep and driving it off to market) does not escape responsibility because he believes that the property is his own.”

It may be asked whether a man who takes 30 rather than 29 sheep out of a field is in any real sense aware that he has taken the thirtieth sheep.

178

[1949] 1 All ER 398 (KB Div, Div Ct). See also Kindon, 41 Cr App Rep 208 (1957).

179

Cf Howard, (3rd ed), 173–176.

180

[1895] 2 IR 709.

181

2 Leach 952, 168 ER 574 (1802).

182

7 M & W 623, 151 ER 916 (1841).

183

16 QBD 190 (Cr Cas Res 1885).

184

16 QBD 613 (1886).



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did not make clear how much time elapsed between the transfer of the bag and its subsequent fraudulent appropriation but it appears from the evidence that it was very short.185 The question for the Court, on the basis of the jury's findings, was whether such a subsequent appropriation could constitute larceny, the jury not having found affirmatively that the defendant had the animus furandi at the time of the receipt of the bag.

The Court held that the conviction should be affirmed on the basis that there was a clear distinction between it and Ashwell.

Kenny is not alone among commentators in challenging Lord Coleridge's statement that there was “a most substantial difference” between the two cases. He states:

“It is plain that the facts in Flower's Case were more unfavourable to the prisoner than the facts in R v Ashwell were to Ashwell ....

[T]he undoubted difference of fact between the two cases did not justify [Lord Coleridge's] conclusion; for if Ashwell was guilty then a fortiori Flowers should also have been convicted.”186

2.55

If the English Court for Crown Cases Reserved revealed uncertainty and internal divisions on the question of initially “innocent” taking, the Irish Court for Crown Cases Reserved experienced no less difficulty. In Hehir187 in 1895, an employer gave his employee what both of them believed to be two pound notes and nine shillings. In fact one of the notes was a ten pound note. There was evidence that the employee, some considerable time after receiving this note, discovered its true value and fraudulently appropriated it to his own use. The question reserved by Palles CB for the Court was whether he ought to have directed a verdict of acquittal by reason of the prisoner's not having had the animus furandi when his employer handed him the ten pound note. The majority188 of the Irish Court for Crown Cases Reserved held that the employee's conviction should be quashed.

Larceny from the Person

2.56

Section 14 of the Larceny Act, 1976 provides that the offence of larceny from the person is punishable by penal servitude not exceeding fourteen years.189

In the Court of Criminal Appeal decision of Mills,190 in 1955, Davitt P, for the


185

Id, at 645.

186

Kenny, para 293.

187

[1895] 2 IR 709 (Cr Cas Res), noted with approval by Anon, 29 lr LT & Sol J 323 (1895).

188

Sir Peter O'Brien LCJ, Palles CB, O'Brien, Andrews and Johnson, JJ; Murphy, Holmes, Gibson and Madden JJ dissenting.

189

See Mills, 1 Frewen 153, at 155 (CCA, 21 October 1955, per Davitt P, for the Court).

190

Supra.



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Court, said that he considered it clear from the authorities that:

“to constitute the offence of larceny from the person there must be a complete reparation or severance of the article from the owner's person. It seems to us that no distinction can be drawn between the act of stealing an article from a person's pocket and stealing it from a lady's handbag, which she is carrying on her arm at the time; and that where the thief succeeds in abstracting the article completely from the handbag there is a complete severance and an asportation sufficient to constitute the offence of larceny from the person.”191

Punishment

2.57

Formerly, the law distinguished between “petty” and “grand” larceny.192 Where the thing stolen was worth no more than twelve pence, the offence was merely that of “petty” larceny, which, though a felony, was not a capital offence. “Grand” larceny, of things of a higher value, was for centuries a capital offence, though the full rigour of the law was moderated by benevolent fictions as to the value in specific cases, as well as the rules of “benefit of clergy”.193

Echoes of the distinction between “petty” and “grand” larceny may be found in the present discussion between “simple” and “aggravated” larceny. Section 2 of the Larceny Act, 1916, as we have noted, specifies that certain conduct “shall be larceny and a felony”, punishable with penal servitude for up to five years. In Bryant,194 however, it was said that:

“[t]he first thing to be noted is that section 2 ... does not create an offence. Larceny was always an offence at common law. Section 2 ... is ... solely concerned with punishment .... If a person is charged with simple larceny, he is charged with a common law offence and not an offence against a particular statute.”

The 1916 legislation prescribes several enhanced penalties for different cases of aggravated larcenies.

2.58

Larceny from a dwelling house of any chattel, money or valuable security is a felony with a penalty of up to fourteen years' penal servitude if the property has a value of at least five pounds or the thief by any menace or threat puts any person in the dwelling-house in bodily fear.195 The same maximum penalty attaches to the larceny of goods from ships, barges or boats, from docks, wharves


191

1 Frewen, at 155.

192

See Kenny, para 296.

193

See Kenny, paras 55, 296.

194

[1955] 1 WLR715, at 717 (Cts - Martial Appeal Case, per Lord Goddard CJ). In Cassidy [1990] ILRM 30, Gannon J (rejecting what Davitt J had said in Mills, supra, on this point) observed that, “[i]f the offence does not fall under the other sections of the Act it can be punished under s2, but it does not follow that, if it does fall under one of the other sections, ... it cannot be punished under s2”.

195

Section 13.



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or quays and from vessels in distress, wrecked, stranded or cast on shore.196

2.59

Larceny from the person warrants up to fourteen years' penal servitude.197 Robbery – an assault with intent to rob – carries a maximum penalty of life imprisonment.198

2.60

Larceny by a clerk or servant,199 or a person employed in the public service200 carries a maximum penalty of fourteen years, “owing to the opportunities of dishonesty which are necessarily placed within the reach of all persons thus employed, and to the breach of confidence which is involved in taking advantage of them”.201 Postal employees who steal a postal packet in the course of transmission by post face a penalty of penal servitude for life if the packet contains “any chattel, money or valuable security” and penal servitude for a term of up to seven years in all other cases.202

2.61

Section 12 prescribes a penalty of penal servitude for life for theft from the mail by persons, whether or not postal employees. It provides as follows:

“Every person who –


(1)


steals a mail bag; or


(2)


steals from a mail bag, post office, officer of the Post Office, or mail, any postal packet in course of transmission by post; or


(3)


steals any chattel, money or valuable security out of a postal packet in course of transmission by post; or


(4)


stops a mail with intent to rob the mail;

shall be guilty of felony and on conviction thereof liable to penal servitude for life.”

2.62

Larceny of a will, codicil or other testamentary instrument, either of a dead or of a living person, carries a penalty of penal servitude for life.203 Larceny of goods in the process of manufacture warrants a maximum penalty of fourteen years' penal servitude.204 Larceny of a horse, cattle or sheep warrants the same penalty.205


196

Section 15. See McCutcheon, para 70.

197

Section 14. Cf Mills, supra.

198

Section 23 (as inserted by the Criminal Law (Jurisdiction) Act, 1976, section 5): see McCutcheon, paras 91–97.

199

Section 17(1).

200

Section 17(2).

201

Kenny, para 301.

202

Section 18 as amended by the Postal and Telecommunications Services Act, 1983, section 8(1) and Fourth Schedule. See also the Post Office Act, 1908, section 55.

203

Section 6.

204

Section 9. See McCutcheon, para 61.

205

Section 3. See McCutcheon, para 57.



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2.63

The 1861 and 1916 Acts contain a wide range of what Kenny calls “quasi-larcenies,”206 involving the appropriation of movables which fell outside the old law of larceny, such as certain animals and plants.


206

Kenny, para 303.



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CHAPTER 3: EMBEZZLEMENT

3.1

An employee who misappropriates goods placed in his possession before they come into his employer's possession is not guilty of larceny. This was clearly stated in Bazeley1 in 1799. A statute2 enacted later that year made such misappropriation (“embezzlement”) an offence.

Section 17 of the Larceny Act, 1916 now provides as follows:

“Every person who:


(1)


being a clerk or servant or person employed in the capacity of a clerk or servant –

...


(b)


fraudulently embezzles the whole or any part of any chattel, money or valuable security delivered to or received or taken into possession by him for or in the name of or on the account of his master or employer

...

shall be guilty of felony ...”.3

Who is a “Clerk or Servant”?

3.2

The criminal law, like tort law,4 distinguishes between a “servant”5 and


1

2 Leach 835, 168 ER 517 (1799).

2

39 Geo III, c 85. A similar Act was passed in relation to Ireland twelve years later: 51 Geo III, c 38.

3

See generally McCutcheon, paras 72–78.

4

See McMahon & Binchy, 753–755. The criteria adopted in tort cases were applied in the income tax case of O Coindealbhain (Inspector of Taxes) v Mooney, High Ct, Blayney J, 21 April 1988 (Rev 1988 No. 83R).



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an “independent contractor”.6 The master-servant relationship involves a much greater degree of control by the master of the servant's work than does a contract for services with an independent contractor. The master “can tell [the servant] not only what to do but also how to do it”.7

The courts traditionally have had regard to such as the following:


(a)


the master's power of selection of his servant;


(b)


the payment of wages or other remuneration;


(c)


the master's right of control of the method of doing the work; and


(d)


the master's right of suspension or dismissal.8

In Negus9 in 1873, Bovill CJ said:

“What is a test as to the relationship of master and servant? A test used in many cases is, to ascertain whether the prisoner was bound to obey the orders of his employer or as to be under his employer's control ... Where there is a salary, that raises a presumption that the person receiving it is bound to devote his time to the service, but when money is paid by commission a difficulty arises, although the relationship may still exist where commission is paid, as in ordinary cases of a traveller ... But in either case there may be no such control, and then the relationship does not exist. All the authorities referred to seem to show that it is not necessary that there should be a payment by salary – for commission will do – nor that the whole time should be employed, nor that the employment should be permanent, for it may be only occasional, or in a single instance – if, at the time, the prisoner is engaged as servant.”

And Blackburn J said:

“The test is very much this, viz., whether the person charged is under the control and bound to obey the orders of his master. He may be so without being bound to devote his whole time to this service; but if bound to devote his whole time to it, that would be very strong evidence of his being under control.”10

3.3

More recently, in cases of tort and other employment, less emphasis has


5

This term embraces 'clerk'.

6

Fraudulent breaches of trust by Independent contractors are dealt with by the Larceny Act, 1916, sections 20 and 22.

7

Kenny, para 319.

8

Short v J & W Henderson Ltd, 62 Times LR 427, at 429 (H I (Sc), per Lord Thankerton, 1946). Cf Murphy, 1 ICLR 91 (CCA, 1850).

9

LR 2 CCR 34, at 36 (1873).

10

Id, at 37. See also Hall, 13 Cox CC 49 (CCA 1875).



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been placed on the control test. “Thus, factors such as the form of remuneration, the payment of tax and social insurance, the risk of profit and loss and the ownership of equipment and materials have been taken into account. It can be expected that the criminal law will likewise broaden its definition of who is a clerk or servant.”11 Although there is no necessary coincidence of social policies as between tort law and criminal law so far as the definition of “servant” is concerned, it seems that the courts in criminal cases are content to take their lead from torts cases. Thus, in the Court of Criminal Appeal decision of Warren,12 in 1944, Gavan Duffy J referred to a decision13 in tort law as to whether a rate collector was a servant of the local authority, and observed:

“The decision has stood for twenty years and it cannot in a criminal cause, be treated as not representing the appropriate law in force, if upon examination the considerations which impressed the court are found to be relevant ...”

Whether courts in prosecutions for embezzlement would today favour the same approach may be debated. Certainly the decision of Moynihan v Moynihan14 has given pause for thought.

There the Supreme Court held that a mother was vicariously liable, as head of the household, for the negligence of her daughter in the provision of hospitality for other members of the family who visited the mother's home. Walsh, J noted that:

“... the necessary element of control was vested in the defendant and the daughter ... was in the de facto service of her mother for the purpose of the act in which she was alleged to be negligent.”15

3.4

Now it is clear that a person may be guilty of embezzlement even in the absence of a contract of service. In Faulkes,16 where a son was convicted of embezzling from his father, Cockburn CJ said:

“It is true that the relation of clerk or servant is generally founded on contract, but the relation may exist at will only. The evidence is that the prisoner did perform all those things which a clerk or servant might have done, and although he might have refused to go on doing them, yet so long as he continued to perform them he did them in the capacity of a clerk or servant to his father.”

It is worth noting also Pollock B's statement that:


11

McCutcheon, para 74.

12

[1945] IR 24, at 29 (CCA 1944).

13

O'Neill v Drohan, [1914] 2 IR 495.

14

[1975] IR 192 (Sup Ct), analysed by McMahon & Binchy, 748–751.

15

[1975] IR at 198. Henchy J delivered a strongly dissenting judgment.

16

13 Cox CC 63, at 66 (CCA 1875).



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“[t]he statute contemplates ... something beyond the mere relationship of clerk or servant to another, and includes the case where, de facto, a person is employed in doing the work ordinarily done by a clerk or servant.”17

These judicial observations may seem in close harmony with Moynihan, but it must surely be the case that, in a prosecution for embezzlement, the Court should not too readily characterise as a de facto service relationship one that has received this characterisation in tort litigation. It would be naive to view Moynihan as having been decided in a policy vacuum; similarly the findings of a de facto service relationship between brother and sister in the context of proceedings for seduction18 must also be regarded as serving policy goals which have no necessary counterpart in prosecutions for embezzlement.

3.5

The requirement that the servant or clerk should receive property “for or on account of” his master has not yet been analysed in any recent Irish case dealing with embezzlement.19 In Lawless,20 where the appellant had been acquitted of embezzlement but convicted of fraudulent conversion, the Court of Criminal Appeal was content to rely on an English decision21 dealing with embezzlement when determining the meaning of this phrase. In the context of fraudulent conversion, it was subsequently decided in Cowan,22 approving the English decision in Grubb,23 that a person may be entrusted with property “for or on account of” another person notwithstanding that the property is not delivered to him directly by the owner and that the owner does not know of his existence and has no intention of entrusting the property to him because his receipt of the property gives rise to a duty or obligation to account for it to such other person. It seems safe to predict that, in prosecutions for embezzlement as well as fraudulent conversion, the approach favoured in Cowan will prevail.

3.6

The mere failure to account for or the inaccurate recording of, transactions involving the receipt of property by a servant for or on his master's account does not constitute embezzlement, though it may amount to an offence under section 2 of the Falsification of Accounts Act, 1875.24 However, such a


17

Id. See also id, at 66–67 (per Bramwell B) and at 67 (per Mellor J).

18

Cf, e.g., Murray v Fitzgerald, [1906] 2 IR 254 (CA), where the brother of a seduced girl was held entitled to sue even though he was at least ten years her junior and though she had an interest in the farm on which they and another brother worked. Holmes LJ, dissenting, contended (at 271) that:

“no one could suggest that [the plaintiff] was in loco parentis to a sister, ten or thirteen years older than himself, who managed the money of the family ... and who was, as she said in her evidence, the head of the house.”

The notion of a parent's entitlement to the services of his or her adult child is one that has for long been criticised: see, e.g., Anon, Loss of Services in Actions for Seduction, 11 Ir LT & Sol J 339, at 339 (1877).

19

In Horrigan, Jebb & Bourke, App iii (1841), a servant who, in breach of his instructions, sold his master's cattle at a fair, instead of merely driving them there and keeping them until his master came and sold them, was held to have been improperly convicted of embezzling the proceeds. The report merely states the holding of the judges and the argument of counsel.

20

[1930] IR 247 (CCA 1929).

21

Gale, 2 QBD 141 (1876).

22

98 ILTR 47 (Sup Ct 1958, aff'g CCA 1957).

23

[1915] 2 KB 683.

24

Cf infra, para 5, 18 et seq, Chapter 30.



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failure may warrant an inference of an intent to defraud the master, in which case a conviction for embezzlement may be sustained.25 As to the meaning of “fraudulently”, in relation to embezzlement, it seems that a claim of right is inconsistent with fraud in this context.

The Court of Criminal Appeal so held in Grey,26 in relation to a prosecution for fraudulent conversion. In view of the similar language in sections 17(1)(6) and 20(1), and in view of O'Byrne J's judgment27 in Grey, it may be argued that the logic of the holding in Grey applies also to the context of embezzlement.28

3.7

As regards proof of the offence, it appears that this may be satisfied by evidence of false entries and general deficiencies in the books, where the jury can properly infer that the defendant must have embezzled the missing amounts.29 No Irish case dealing with embezzlement has yet decided whether a general deficiency count is permissible in cases where it is impossible to split up an aggregate sum and to trace individual items.30 The English decision of Tomlin31 has held that this solution is permissible; and the Irish decision of Singer32 is an authority in favour of this approach in a prosecution for fraudulent conversion.


25

See Lynch, 6 Cox CC (Dublin Commission Court, Green Street, 1854), Hodgson, 3 Car & P 422, 172 ER 484 (1828).

26

[1944] IR 326 (CCA).

27

Cf id at 331–332.

28

See McCutcheon, para 75.

29

See Gleeson, 64 ILTR 225 (CCA 1919); see also Dalton, CCA 11 October 1960 (No 25 of 1960), 1 Frewen 199 (prosecution under section 17(1)(a) of the 1916 Act); and see McCutcheon para 77.

30

McCutcheon, para 77.

31

[1954] 2 All ER 272, critically analysed in Russell, vol 2, 1092–1095.

32

CCA 23 June 1961 (No 39 of 1960), 1 Frewen 214. See further McCutcheon, para 78.



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CHAPTER 4: FALSE PRETENCES

4.1

Section 32 of the Larceny Act, 1916 provides that a person is guilty of a misdemeanour when, by any false pretence,


(1)


“with intent to defraud, [he] obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or



with intent to defraud or injure any other person, [he] fraudulently causes or induces any other person –


(a)


execute, make, accept, endorse, or destroy the whole or any part valuable security; or


(b)


to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security ...”1

In the Court of Criminal Appeal decision of Bristow (No. 2),2 O Dalaigh CJ summarised the ingredients of the offence succinctly. To establish an obtaining of money by false pretences, the prosecution had to establish:


1

See McCutcheon, paras 143–151, Anon, False Pretences, 90 Ir LT & Sol J 41 (1956).

2

CCA 27 March 1962, at p2.



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(i)


that the accused obtained money,3 (ii) that he did so by means of a false pretence, (iii) that the injured party was induced by the pretence to part with his money, (iv) that this pretence was as to an existing fact, (v) that the pretence was false to the knowledge of the accused, (vi) and was made with intent to defraud.”

The Right Obtained

4.2

Kenny4 states:

“For the purposes of section 32 the word 'obtains' means that the offender has induced the prosecutor to transfer not merely the article itself but also the full ownership of the article. It may well be that the prosecutor contemplated that the recipient would be retaining the thing for his own use and benefit: this, however, is not essential, and it will be enough that the recipient obtains the power to pass the ownership to someone else if he does not wish to take it for himself.”

It is necessary to stress the distinction here drawn between the owner's intention to pass property in the goods (in which case the prosecution should be for false pretences) and his intention merely to pass possession (in which case the prosecution should be for larceny). Deciding which was the owner's intention may be very difficult in some cases. The owner may have no sophisticated understanding of the difference between ownership and possession; even if he does, he may genuinely be uncertain as to what his precise intention was in the circumstances of the case.

The Subject Matter

4.3

It is not entirely certain what the words “chattel, money or valuable security” embrace. There is some authority for the view that they should be read subject to the implied qualification that they must also be capable of being stolen.5 It is interesting to note that section 10 of the Criminal Justice Act, 1952, which in substance reenacts section 32 of the 1916 Act, uses the expression “anything capable of being stolen” rather than “chattel, money or valuable security”.


3

The offence extends to the obtaining of a wide range of other property: cf infra, pp110–111.

4

Kenny, para 342.

5

Cf Robinson, Bell CC 34 169 ER 1156, Kenny, para 342. But see Smith & Hogan, 1st ed, 359, who observe that:

“[t]he real motivation of this decision, however, appears to have been that the court considered a sentence of seven years' penal servitude a monstrous punishment for obtaining two dogs by false pretences when he could have been fined only had he stolen them. This situation is hardly likely to arise now and Robinson would not stand in the way of giving 'chattel' its ordinary meaning”.

Lord Campbell CJ's remarks (Bell CC at 38, 169 ER, at 1158) afford the basis for Smith & Hogari's observation.



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What Constitutes A Pretence

4.4

A pretence involves human conduct where there is an untrue communication. The conduct usually is any language, written or spoken; but this is not essential, once a communicative dimension may be discerned. Thus, for a man in Oxford to wear a cap and gown was considered capable of amounting to a representation on his part that he was a student at the University.6

In Finkel v Levine7 in 1951, the defendants had been involved in a transaction whereby counterfeit dollar bills were given by one of them to a third party in exchange for sterling at a price of six pence per dollar above the normal exchange rate. At the time there was in force an Emergency Regulation forbidding the sale of dollars between private persons. They were convicted of conspiring together to obtain money by false pretences, and of obtaining that money by false pretences.

In their appeals, the defendants argued that there had been no evidence that either of them had ever made any false statement as to a matter of fact in relation to the dollar bills and that therefore neither had made any false pretence. Moreover, they argued, there was no evidence that they knew the bills were counterfeit or that the third party had parted with his money as a result of the misrepresentation alleged. This argument was rejected by the Court of Criminal Appeal.

Maguire CJ (for the Court) said:

“It is quite true that there was no evidence of any statement being made by either accused to [the third party] that the dollar bills were genuine. There is, however, evidence that both accused at the first meeting ... took part with [the third party] in a discussion in the course of which the price of dollars w[as] fixed at £27.10.0 per $100, and that that price was 6dper dollar above the normal exchange rate. The jury were quite entitled to conclude that no one in their senses would either agree to pay or expect to receive full face value and more for counterfeit money, and it seems to the Court that there was quite sufficient evidence from which the jury could conclude that the accused by their conduct, if not in so many words, represented that the bills were genuine. The representation was carried to the logical conclusion the following Saturday when Finkel handed over to [the third party] the forty five spurious bills in exchange for £962.10.0 in cash. A person who, without making verbal representation, presents a counterfeit coin or bank note to be genuine and is guilty of obtaining the change by false pretences


6

Barnard, 7 C & P 784, 173 ER 342 (1837). In fact the man falsely asserted that he belonged to Magdalen College; but Bolland, B, summing up, observed (at 784 and 342, respectively):

“If nothing had passed in words, I should have laid down that the fact of the prisoner's appearing in the cap and gown would have been pregnant evidence from which a jury should infer that he pretended he was a member of the university ...”.

7

CCA, 31 July 1951 (Nos 34 & 35 of 1951), 1 Frewen 123.



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though, where the coin or note is of the currency of the State he would usually be charged with the offence of uttering rather with the offence of obtaining money by false pretences. It is unnecessary to refer to the many cases which show that the mere presentation of a note purporting to be genuine and worth its face value but which is in fact worthless may be a representation that it is genuine and value for what [it] purports to be.”8

It was the opinion of the Court that, if the Emergency Regulation had not been in operation, there would have been “ample evidence to justify the jury in concluding that all the ingredients necessary to constitute the charge of false pretences were present and particularly to establish guilty knowledge.”9

The False Pretence Must Be One Of Past Or Present Fact

4.5

The false pretence must be one of past or present fact.10 Much judicial attention has concentrated on false promises. The courts11 have held that a false promise should not involve the promisor in liability for obtaining money by false pretences. Why should this be? In one sense, of course, a false promise necessarily contains a false representation of fact, namely, that the promiser intends to keep his promise. But the courts regard a promise as being of a different order to an ordinary representation of fact.

Several reasons may be suggested for this approach. An extension of the offence to all cases of fraudulent breach of promise would cast the shadow of criminal law too far over the law of contract. All statements about the future should be treated with caution, especially statements relating to intention. Moreover, a promise is a “speech act”: one generally does not enter into a mutually binding promise without doing so by communication; yet a promise is a human act of a different moral order to a factual representation. Breach of a promise should not necessarily be treated in the same way as an untrue factual representation, even if the promisee shares with the party to whom a representation has been made the experience of disappointed reliance. Whereas the latter can say “I relied on the truth of the what I was told”, the former can say “I relied on the moral integrity of the promisor that he would keep his promise”.

4.6

In Murphy12 in 1876, the defendant had obtained two separate


8

1 Frewen, at 128.

9

Id at 129.

10

Professor Smith, writing after the offence of obtaining property by false pretences had been replaced in England by offences of deception, stated:

“In the old law of false pretences the books unanimously stated that the misrepresentation must be as to a matter of fact. They then went on to contrast representation of fact with representation of opinion or intention. No discussion is to be found of representations of law and no authority is cited to show that a misrepresentation of law would not have been a sufficient false pretence. Indeed there appears to be no authority to that effect. On the other hand there is no authority to show that a misrepresentation of law was enough.”Smith, para 175 (footnote references omitted).

11

Cf Dent, [1955] 2 QB 590, Jones, 33 Cr App Rep 11 (1948).

12

IR 10 CL 508 (Ct of Cr Cas Res 1876).



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quantities of goods by sending in the post half notes in payment for one of these quantities from one merchant and by sending the corresponding halves to the other merchant for the other quantity.13 Her counsel argued unsuccessfully that the indictment could not be maintained as the false pretence was not one of fact but merely a promise to send the other halves. The case was left to the jury, who convicted.

Lawson J reserved the case for the Court for Crown Cases Reserved. Counsel for the defendant contended first that the sending was merely a promise to pay for the goods on delivery. Palles CB was unimpressed, asking:

“How could the prisoner keep that promise, when she had parted with the other half-notes?”14

Counsel replied that the promise had not been to pay by sending the second half notes, but “to pay in some manner, and the half notes were sent merely to a security for the observance of the promise”.15 To this O'Brien, J rejoined:

“But the prisoner had sent the corresponding half notes away, and the jury might reasonably infer that the representation was to send the second half notes; and that was a false representation, and the one upon which the goods were in fact obtained.”16

Counsel then sought to argue that the sending of the money was “not a false pretence [but] merely a security”.17 It was quite possible that the prisoner had made a mistake in sending the half notes. The evidence was “at most ... consistent with the innocence of the prisoner.18 Keogh, J conceded that “[t]hat might be, but for evidence which appeared from the cross-examination of one of the merchants who had said that the defendant had told him she had sent the half notes corresponding to those he had reserved to some one else”.19

Morris CJ stated that the Court was unanimously of the opinion that the conviction should be affirmed.

4.7

In Cloran20 in 1870, the defendant had induced a debtor languishing in the Four Courts Marshalsea to part with a promissory note for £60 in reliance on his assurance that he would apply this sum to secure her release. He later claimed that he had destroyed the note but in fact he had passed it to a bank for his own benefit.


13

Two further counts charged the defendant with the same type of offence in relation to two other persons, id at 509.

14

Id at 510.

15

Id.

16

Id.

17

Id.

18

Id.

19

Id.

20

4 ILT & Sol J 690 (Commission of Oyer and Terminer, Pigot CB and City jury, 1870).



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Counsel for the defendant argued that there was no case to go to the jury, since “there was nothing but a promise to get the amount of a promissory note, and that was merely a promise in the future, and not within the measuring of the statute”.21 There was no evidence of a false pretence, as it was impossible to provide that the defendant was unable to advance £60 when he procured the note.

Counsel for the prosecution contended that “the statement made by the [defendant] that he was at the time in a state of power to do a certain thing, or if from the tenor of his conversation it was fair to infer that the idea of his existing power was created in the mind of [the debtor] ..., taken in connexion with the promise made to procure a sum of money was sufficient evidence to support the indictment as to the pretences; and that the fact of the defendant procuring the note under the circumstances, and passing same to the bank for his benefit, while he wrote a note stating he had destroyed it, was in the absence of any evidence adduced by the [defendant] to rebut same, prima facie evidence of the inability of the [defendant] to perform that which he represented he was able to do”22.23

Pigot CB said:

“The only point on which there could be any doubt is as to the question of the falsity of the pretence, but I am of opinion that there is sufficient evidence to go to the jury of the falsehood of the pretences made by the [defendant]”.24

The jury convicted. Pigot, CB had “no doubt whatever”25 on his mind that would justify him in volunteering a reservation of the question to the Court of Criminal Appeal.

The False Pretence must Induce the Transfer of Ownership

4.8

The false pretence must have induced the change of ownership; it need not have been the only factor provided it was a material one.26 The fact that the victim is credulous or careless is not a reason for acquittal.27

In Carty & Carty,28 the defendants were convicted of (i) conspiracy to defraud by a false representation that one of them was then entitled to sell and deliver a greyhound bitch named New Doll, and (ii) obtaining money by falsely pretending that one of them was thus entitled.


21

Id at 691.

22

Citing Giles, 34 LJMC 50.

23

4 ILT & Sol J at 691.

24

Id.

25

Id.

26

West, Dears & B 575, 169 ER 1126 (1858).

27

Kenny, para 349.

28

CCA (unreported) (37–1956).



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Counsel for the defendants on appeal submitted that the judge should have told the jury that the name of the animal was of no real consequence and that, if they believed that the person who sought to buy the greyhound promised by the defendants would in fact have accepted any 1952 greyhound bitch that had run 550 yards in 31.05 seconds, they should acquit. The Court of Criminal Appeal was not receptive to this argument for two reasons. First, there was evidence that the defendants had mentioned the animal's name to the purchaser on several occasions. Second, the animal they actually preferred had not complied with the qualifications as to age, time and distance.

The Court did, however, accept that:

“[i]f the facts had shown that the Cartys had arrived in London and had offered a 1952 greyhound bitch that had in fact run 550 yards in 31.05 seconds, and that was not named 'New Doll' there would be grounds for complaint.”29

4.9

This raises the interesting issue of misrepresentation as to identity as opposed to quality or qualities. Here the only information important to the prospective purchaser appears to have related to age, time and distance; the name of the bitch appears to have been irrelevant. It is true that there was indeed an animal named New Doll, owned by another person, which one of the defendants tried unsuccessfully to buy after agreeing the sale. But the judgment gives no clear support for the inference that the prospective purchaser was aware of the existence of that animal, so that there is no reason to believe that it played any part in his deliberations as to whether to buy.

The Court appears, correctly, to have accepted that a misrepresentation as to what it calls “name”need not give rise to liability. It is only where the name carries with it connotations that may affect the deliberation of a prospective purchaser (or other victim) that it will be of relevance.30

Direction to Jury need not refer Expressly to Requirement of Inducement where Evidence is Clear

4.10

In Bristow (No 2),31 in a prosecution for false pretences arising out of the giving of a cheque that bounced, the trial judge did not in express terms tell the jury that the injured party must have been induced by the representation to part with his money. The Court of Criminal Appeal held that, on the facts of the case:

“There was no room for doubt that the parties who paid money to the [defendant] did so because they thought they were receiving good and


29

Pp 6–7 of judgment.

30

Cf Gilmore & Cunningham, 85 ILTR 99 (1950), analysed by McCutcheon, para 145. See also White, IR 10 CL 523 (QB 1876).

31

CCA 27 March 1962 (unreported).



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valid cheques. The matter was so clear as not to require statement.”32

Proof of the Falsity of the Pretence

4.11

The indictment must specify the pretence alleged and it is that pretence which must be shown to be false.

This principle was endorsed in Kelleher,33 although its application to the facts of the case is not easy to understand. The Court for Crown Cases Reserved held bad an indictment for obtaining money by false pretences where it stated that the defendant knowingly and designedly falsely pretended that he was another person who had money deposited in the Cork Savings Bank, and who had a book of his bank with a statement of his account in it, which book he presented to the cashier of the Bank when representing himself to be that other person, by means of which false pretence he obtained £10 of the other person's money, with intent to defraud, whereas in truth he was not that person, nor had he any authority to present the book for the purpose of drawing out money; neither had he any authority from the other person to draw money from the bank.

May CJ, for the Court said:

“It is clearly established that an indictment for obtaining money by false pretences should state the pretence, and should negative the truth of the matter so pretended with precision, so as to inform the prisoner with certainty of the charge made against him.

The indictment does not contain any allegation that the prisoner pretended that he was the person named in the Bank book, nor that he pretended he had any authority from Goulding to present the book or to draw money from the Bank; and having omitted to allege any such pretences as having been made by the prisoner, the indictment proceeds to negative the truth.

The indictment does not negative the truth of averments which the prisoner is alleged to have made, but of others which he is not alleged to have made.”34

The difficulty in this case is that the indictment did allege that the defendant had pretended that he was the person named in the Bank book: it stated “... which said book he the said Michael Kelleher presented to the said EJ Julian at the time he represented himself to be the said James Goulding by means of which said false pretence he, the said Michael Kelleher, did there and then obtain from the said ... [etc]”. It is possible that the view of the Court was that, although the indictment stated the prisoner pretended he was X, who, as a matter of fact, was


32

P3 of O Dalaigh, CJ's judgment.

33

2 LR Ir 11 (Ct for Cr Cas Res 1877).

34

Id at 14.



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the owner of the book, it did not state expressly that he pretended to be the owner of the book. This seems a very narrow a distinction to draw.

Intent to Defraud

4.12

An intent to defraud “may of course be inferred from the facts of the case”.35 In Sullivan,36 where the defendant, a midwife charged with attempting to obtain money by false pretences, had submitted false reports of provision of service, the Supreme Court by a majority37 held that this “amounted to prima facie evidence that her actions in this regard were consistent only with an intent to defraud, subject however to her establishing that she had good reason for having the cases attended by other midwives”.38

In Shanahan,39 the defendant paid for two tractors with a cheque which he knew would be met only if a cheque from a third party was lodged beforehand to his account. The latter cheque was dishonoured, and the cheque for the tractor accordingly bounced. When interviewed by a member of the Garda Siochana, the defendant intimated that he had stopped the cheque because of a dispute with the vendors arising from the non-delivery of documents associated with the tractor. He did indeed have such a dispute, since the tractor had not received customs clearance, but, as has been mentioned, the reason the cheque for the tractor bounced was because of the absence of sufficient funds in the defendant's account.

The defendant's appeal against conviction for false pretences was successful, the Court of Criminal Appeal ordering a new trial. Counsel for the defendant conceded that, where the prosecution established the issuing of a cheque and the complete absence of funds or of any permitted overdraft facility to meet it, this would discharge the onus of establishing a fraudulent intent as a prima facie proof. He argued unsuccessfully that there was in this case a further onus of proof on the prosecution in establishing a prima facie case to prove the circumstances of the dishonouring of the cheque issued to the defendant by the third party and the fact that the defendant was aware of its worthlessness when he issued his own cheque.

In rejecting this submission, the Court of Criminal Appeal expressed the view that the Guard's evidence constituted prima facie evidence of the fraudulent intent necessary to convict. However, it is worth recording O'Higgins CJ's statement that:

“[t]he Court accepts the general submission that in a case where the


35

Bristow, CCA 7 November 1961 (No 17 of 1961), 1 Frewen 249, at 251 (per O Dalaigh CJ). See also Bristow (No 2), CCA 27 March 1962, at p4 of O Dalalgh CJ's judgment. For a comparative study, see Doherty, The Mens Rea of Fraud, 25 Crim LQ 348 (1983).

36

[1964] IB 169.

37

O Dalaigh CJ and Walsh J; Lavery J dissenting.

38

[1964] IR, at 195 (per Walsh, J).

39

CCA 11 December 1978 (No 19 of 1978), 1 Frewen 417.



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crime charged is that of obtaining money or goods by false pretences and where the false pretence is the issuing of a cheque which is not met, the onus remains upon the prosecution at all times to establish beyond a reasonable doubt that at the time of the issuing of the cheque the accused was aware that it was not likely to be met out of the account upon which it was drawn.”40

As McCutcheon41 notes, “[a]lthough proof of the accused's knowledge of the falsity of the representation supports a prima facie case of intent to defraud, such proof is not always sufficient.”

4.13

In Thompson alias Morrison42 in 1960, the defendant was convicted of obtaining a car by false pretences and of conspiracy with another to defraud the owner of the car by obtaining it from him by false pretences. He had obtained the car on 3rd February in exchange for a cheque dated the following day. There was only £10 in his account at the time of the sale. His secret intention (he later claimed in his unsworn statement from the dock) was to meet this cheque by lodging the proceeds to be derived from a quick sale of the car to another dealer. As matters worked out (he claimed), he was unable to reach those dealers in time, so his colleague sold it at a small loss to a third party who gave a cheque for it which the defendant lodged to his account and which would (with the £10) have afforded sufficient funds to meet the cheque given to the car owner the previous night. Unfortunately for the defendant, the third party dishonoured his cheque, resulting in the dishonouring of the original cheque.

The Court of Criminal Appeal quashed both convictions and ordered a new trial on both counts. This was because the direction of the trial judge, which had laid particular emphasis on the drawing of the cheque, “could well have masked the other ingredient, namely the intent to defraud by reason of the false pretence, without which there could not be a conviction”.43

Walsh J for the Court, addressed the issue of false pretences, in a most important passage:

“The act of drawing the cheque clearly implied at least three statements about the present. Firstly, that the applicant had an account at the Bank, which was the case. Secondly, that he had authority to draw on it for £135, which authority he had not in fact; and thirdly that the cheque, as drawn, was a valid order for the payment of £135 in that the state of affairs then existing was such that in the ordinary course of events the cheque would be duly honoured on or after the 4th February. It did not imply that the applicant had £135 in the bank on the 3rd of February or that the cheque would be met on or after the 4th February


40

Id at 49.

41

McCutcheon, para 150.

42

CCA 13 October 1960 (No 21 of 1960), 1 Frewen 201.

43

Id at 207 (per Walsh J for the Court).



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when presented. If the jury accepted that by reason of his expectation of a quick sale of the car the applicant believed when he gave the cheque that he would, in the ordinary course of events, be in a position to lodge sufficient in the account to meet the cheque when presented, they should have acquitted the applicant. In our view the learned trial judge did not sufficiently distinguish for the jury the question of this belief in the mind of the applicant of the time he drew the cheque from the other question of belief namely, as to his authority to draw a cheque for that amount at that time. That being so we are not satisfied that the jury could be said to be free from confusion on the distinction between the falsity of the pretence and the intent to defraud. For that reason the conviction on this count should be quashed and a new trial directed”.44

As regards the role of the trial judge in guiding the jury, in Bristow,45 O Dalaigh CJ observed:

“There may be cases where a judge, in explaining the nature of the offence created by section 32(1)... can properly dispense with an express statement to the jury that they should, before convicting, be satisfied, inter alia, that the accused's representation was made with intent to defraud. But to omit such a statement is a perilous course ....”

Punishment

4.14

Although obtaining by false pretences is a misdemeanour, the maximum punishment for the offence – five years imprisonment46– is as severe as for simple larceny.47

Larceny and False Pretences Distinguished

4.15

The conceptual difference between the offences of larceny and false pretences is clear, but in practice the evidence in some case may be far from plain as to whether the victim intended to pass ownership or possession. Formerly, this could result in guilty defendants being acquitted since it was not possible to join felonies and misdemeanours in the same indictment.48

These difficulties are addressed by section 44 of the Larceny Act, 1916, subsections (3) and (4) of which provide as follows:


(3)


If on the trial of any indictment for stealing it is proved that the defendant took any chattel, money, or valuable security in question in any such manner as would amount in law to


44

Id. In accord is Kenny, para 346. As to prosecutions for false pretences in relation to cheques, see further Skelly, [1935] IR 604 (CCA 1934), McCutcheon, para 147.

45

CCA 7 November 1961 (No 17 of 1961), 1 Frewen 249, at 252.

46

Larceny Act, 1916, section 32. As to the power of the Court to fine the offender, see section 37(5)(a).

47

Id section 2.

48

Kenny, para 335.



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obtaining it by false pretences with intent to defraud, the jury may acquit the defendant of stealing and find him guilty of obtaining the chattel, money, or valuable security by false pretences, and thereupon he shall be liable to be punished accordingly.


(4)


If on the trial of any indictment for obtaining any chattel, money, or valuable security by false pretences it is proved that the defendant stole the property in question, he shall not by reason thereof be entitled to be acquitted of obtaining such property by false pretences.”

Kenny warns that:

“in every such case as is envisaged by the above statutory provisions the evidence must, at the trial, clearly establish which of the two crimes has in fact been committed. If the indictment is for attempted larceny the accused cannot, under section 44(3), be convicted of attempting to obtain by false pretences”.49


49

id.



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CHAPTER 5: FRAUDULENT CONVERSION AND FALSE ACCOUNTING

1. Fraudulent Conversion

5.1

The common law did not impose a criminal sanction on servants who acquired full ownership in money or goods in circumstances where it was their plain duty to pass them over to their master. An action for breach of trust might indeed be available, or perhaps a restitutionary remedy such as the quasi-contractual claim for money had and received; but the common law was slow to characterise a breach of trust as a criminal offence.1Kenny notes that “[s]till less did it attach any criminal liability to acts done by one whose fiduciary duty was less well defined than that of a recognized trustee”.2 Various enactments in the nineteenth century provided some degree of criminal sanction against these types of breach of trust; but it was not until the Larceny Act, 1901 that wide-ranging liability was prescribed. The matter is now dealt with by section 20 of the Larceny Act, 1916,3 which (re-enacting section 1 of the 1901 Act) provides as follows:

“(1) Every person who –


(i)


being entrusted either solely or jointly with any other person with any power of attorney for the sale or transfer of any property, fraudulently sells, transfers or otherwise converts the property or any part thereof to his own use or benefit, or the use or benefit of any person other than the person by whom he was seen entrusted; or


1

See Kenny, para 324

2

Id.

3

See generally McCutcheon, paras 80–89.



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(ii)


being a director, member or officer of any body corporate or public company, fraudulently takes or applies for his own use or benefit or for any use or purposes other than the use or purposes of such body corporate or public company, and of the property of such body corporate or public company;4 or


(iii)


being authorised to receive money to arise from the sale of any annuities or securities purchased, or transferred under the provisions of Part V of the Municipal Corporation Act, 1882, or under any Act repealed by that Act, or under the Municipal Corporation Mortgages, & c Act, 1860, or any dividends thereon, or any other such money as is referred to in the said Acts, appropriates the same otherwise than as directed by the said Acts or by the Local Government Board or the Treasury (as the case may be) in pursuance thereof; or


(iv)



(a)


being entrusted either solely or jointly with any other person with any property in order that he may retain in safe custody or apply, pay, or deliver, for any purpose or to any person, the property or any part thereof or any proceeds thereof; or


(b)


having either solely or jointly with any other person received any property for or on account of any other person, fraudulently converts to his own use or benefit, or the use or benefit of any other person, the property or any part thereof or any proceeds thereof;

shall be guilty of a misdemeanour and on conviction thereof liable to penal servitude for any term not exceeding seven years.


(2)


Nothing in paragraph (iv) of subsection (1) of this section shall apply to or affect any trustee under any express trust created by a deed or will, or any mortgagee of any property, real or personal, in respect of any act done by the trustee or mortgagee in relation to the property comprised in or affected by any such trust or mortgage.”

5.2

Fraudulent conversion must be distinguished from obtaining money by false pretences:

“In the case of fraudulent conversion the fiduciary element is the


4

Cf Grey, [1944] IR 326 (CCA).



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essential basis of the offence, and the entrustment is a genuine entrustment in which the fiduciary ownership has been lawfully obtained but which, so to speak, subsequently goes wrong. The term 'conversion' of itself indicates this. Where the fiduciary ownership has been obtained by a false pretence made with intent to defraud there is no such genuine entrustment and the case falls within section 32 of the Larceny Act, 1916 and is excluded from section 20.”5

5.3

There is a major disagreement among the commentators as to whether section 20(1)(iv) should be interpreted as extending, not only to cases where ownership is passed, but also to cases where something less is transferred. In favour of the broad interpretation, Smith6 argues that section 20(1)(iv) embraces conduct amounting to larceny by a bailee,7 larceny by a clerk or servant8 and embezzlement.9

The language of the provision itself contains no limitation; the cases10 give some support for the wide interpretation and the historical argument11 relating to the aims of the Larceny Act, 1916, in Smith's view, presents no difficulty. As against this, Turner is of the view that, in order to satisfy section 20(1)(iv), it is necessary to establish that the defendant received the ownership of the property he fraudulently converted.12 Section 20 as a whole deals with cases in all of which “the offender stands in a special relation to the property, such that, apart from the provisions of this section, he could not be criminally prosecuted for misapplying it.”13 To read section 20(1)(iv) as in part duplicating other clear provisions in the 1916 Act would involve an absurdity.14

The matter has not yet been resolved finally by an Irish court. O Dalaigh J's reference in Singer15 to “fiduciary ownership” suggests support for Turner's view – an interpretation enhanced by his reference immediately afterwards to Turner's “admirabl[e] summar[y]”16 of the history of the offence in Kenny's Outlines of Criminal Law.17 As against this, O Dalaigh J was addressing the narrow


5

Singer, CCA 23 June 1961 (No 39 of 1960), 1 Frewen 214, at 227. In Reilly, [1937] IR 118 the Court of Criminal Appeal, having regard to the view it took of the case, had held that it was not necessary to decide the legal question whether counts of false pretences and fraudulent conversion were alternative and inconsistent. The evidence given in support of the counts of false pretence was “open to criticism as not being sufficient in law to support the convictions on these counts” (Id, at 123), but the Court was satisfied that the evidence in support of the counts for fraudulent conversion amply justified the convictions of these counts which the Court let stand.

6

Smith, The Scope of Fraudulent Conversion, [1961] Crim L Rev 741, 797. See also Smith & Hogan, 430-432 (1st ed, 1965).

7

Larceny Act, 1916, section 1(1).

8

Id section 17(1)(a).

9

Id section 17(1)(b).

10

Cf Grubb, [1915] 2 KB 683, Williams, [1953] 1 QB 660, at 663 and Davenport, [1954] 1 All ER 602. See Williams & Weinberg, 233, fn 60.

11

Cf Smith, op cit, at 743 ff.

12

Russell, vol 2, 1116.

13

Id 1115.

14

Id 1114.

15

Frewen at 227.

16

Id.

17

A small difficulty arises from the fact that O Dalaigh J is reported as having cited pages 311 to 317 of the 18th edition of Kenny. In fact these pages do not deal with the subject; but pages 331 to 338 do (page 338 dealing with the topic of fraudulent trustees, which might reasonably be considered severable from the matters raised in Singer).



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question of the relationship between fraudulent conversion and false pretences, so it would seem wrong to place much weight on this endorsement of Kenny's view. It is interesting to note that the Court of Criminal Appeal delivered judgment in Singer on 23 June 1961, five months before the first part of Smith's celebrated attack18 on Kenny's views was published.

5.4

It should also be noted that a passage from the Court of Appeal's decision in Reynolds,19 quoted presently, could, on one view, be interpreted as implying that a conviction for fraudulent conversion may be sustained even where it is not clear that the accused obtained ownership of the money or property. The judgment can perhaps be better understood as going no further than warning that an undue concentration on the precise moment at which possession or ownership passed may deflect the jury from the more important task of determining whether the property was received for and on account of another; yet the reference to the passing of possession, without a clear statement that ownership must also pass, may be considered to give some support to Smith's view.

Section 20(1)(4)(a) deals with two different cases: entrustment of property for retaining in safe custody (in paragraph (a)) and receiving of property “for or on account of” any other person (in paragraph (6)).

In Reynolds, the Court of Criminal Appeal was not receptive to the argument that section 20(1)(iv)(a) referred to two separate offences of an essentially different nature, depending on whether the property was entrusted for safe custody or otherwise. Maguire CJ said:

“This Court does not accept this interpretation of section 20(1)(4)(a), though not so deciding the point, being of opinion ... that 'entrusting for safe custody' does not fit the circumstances of this case.”

5.5

As regards section 20(1)(iv)(b), Hanna J, in the Court of Criminal Appeal decision of Lawless,20 in 1930, said:

“The sub-section ... may be fairly described as a drag-net clause. The words used are of the widest description. The section refers to the receipt of 'any property for or on account of any other person'. The Court is of opinion that the question as to whether the property or possession in the strictly legal sense has passed at any particular moment of time either to the accused or any other person (a question sometimes arising in charges of embezzlement or larceny at common law) is not under this section the test as to whether the property had been received for or on account of any other person. It may in many cases be quite irrelevant. Neither is it the test that the person who pays the money


18

[1961] Crim L Rev 741.

19

CCA, 6 June 1958 (No 5 of 1958), 1 Frewen 184, at 189.

20

[1930] IR 247, at 258-259 (Ct of Cr App).



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intends to, or is found to, pay it to the accused, or is not aware of any right on the part of any one else to it. The test is whether in addition to fraudulent intent and mens rea, on the evidence before the jury, the accused receives it for or on account of any other person ....”

5.6

As a preliminary to consideration of the important but difficult decision of Heald,21 it may be useful to note the following passage from Kenny:22

“It is clear that a man may be 'entrusted' with property, within the meaning of the section, even though the owner has not delivered it to him directly, and even though the owner did not know of his existence; it is enough that he has obtained or assumed the ownership of another person's property in circumstances whereby he in fact becomes entrusted with it for a known purpose.23 In like manner a man can receive property 'for or an account of any other person even though the person who transfers the property to him has no knowledge of the individual on whose account he receives it, or has no interest in knowing what may be the recipient's duty to do with the property. For example, a payment to a motor taxicab driver (which may include a gratuity to him) passes into his ownership, because, unlike an omnibus conductor, he is not provided by his employers with a wallet into which he must put all takings, but can do what he likes with the cash paid to him by his passengers, being merely required in due course to account properly to them in accordance with the record of the taxi-meter. In most cases the passenger who pays him neither knows nor cares whether the driver is in fact not the owner of the cab. Yet if the driver is in fact not the owner of the cab, nor the hirer of it, then he commits fraudulent conversion of such sums as he dishonestly fails to account for and to pay to his employers”.24

5.7

In Heald,25 the defendant was a matron and effectively the manager of a convalescent home run by an order of nuns. She had a very wide discretion in relation to the collection of fees from the patients and its expenditure. She received lump sum payments from two prospective patients, which she represented to them would entitle them to be patients in the home for their respective lives. In fact, this payment had, to her knowledge, been discontinued. She applied the money to her own purposes. She was charged with fraudulent conversion and larceny, and was convicted on the first charge.

The Court of Criminal Appeal quashed her conviction. The Court thought it necessary for the prosecution to have shown that the applicant had in fact authority to receive this money on behalf of the nuns. Maguire CJ for the Court


21

[1954] IR 58 (CCA 1953).

22

Kenny, para 329.

23

Citing Grubb, [1915] 2 KB 683.

24

Citing Solomons, [1909] 2 KB 980 and Messer 82 LJKB 913 (1913).

25

[1954] IR 58 (CCA 1953).



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said:

“At the trial, Mr Clarke [for the applicant] raised the point which he has so strenuously urged here that there was no evidence that the money was received on account of the nuns. The Judge ruled against him. He has persuaded this Court that his submission was correct. On his submission that it must be shown that in fact the applicant had authority to receive this money on behalf of the nuns, this Court accepts the law to be as stated by Hanna J. giving the judgment of the Court in Attorney-General v Lawless.26

In our opinion the earlier passages cited by Mr D'Arcy [for the State] do not take away from the effect of this passage. In the opinion of this Court it must be shown that the applicant had authority to receive the money on behalf of the nuns before she can be convicted of the offence of fraudulent conversion.”27

Now it is of course true that a person may be obliged to receive property for or on account of another even where the donor of the property is unaware of that obligation. But it does not necessarily follow that a person who receives property for a specific purpose, clearly understood and specified (expressly or impliedly) by the donor may not be convicted of an offence under section 20(1)(iv)(b) by reason merely of the fact that the recipient had not been given authority to receive property for this purpose by those whom the donor intended to benefit.

5.8

Before examining the fate of Heald in the Supreme Court decision of Cowan28 in 1958, it is worth noting briefly an unreported decision of the Court of Criminal Appeal, delivered the same year as Cowan.

In Kavanagh,29 the defendant was convicted of fraudulent conversion of £300 entrusted to him. The charge of larceny of this sum by a trick was struck out. The Court of Criminal Appeal affirmed the conviction. The defendant was an agent of the Royal Liver Society. He accepted £300 from one Fiore Macari as a payment to secure the purchase of a house through the Society. He returned the money to Mr Macari and obtained instead a cheque for the same sum from Mrs Macari. He used the cheque to discharge a liability arising under an entirely independent transaction. Thereafter, over a period of several months, he failed either to return the money or to secure a house for the Macaris.

Counsel for the defendant, on appeal, argued that, if the defendant was guilty of any offence, it was that of larceny as a bailee rather than fraudulent conversion. He argued that an innocent obtaining of the property alleged to have been converted was a prerequisite of the offence of fraudulent conversion, and that,


26

[1930] IR 247, at 258–259. The passage was already been quoted, supra, p91.

27

[1954] IR at 61–62.

28

98 ILTR 47 (Sup Ct 1958).

29

CCA unreported (43–57) (1958).



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since the defendant had no authority from the Society or otherwise, to accept the money as a deposit, and was dishonest from the start, there was therefore no entrusting of the money and consequently no subsequent fraudulent conversion. The Court rejected this argument:

“Whatever validity such a submission might have in certain circumstances it is quite incompatible with the circumstances of this case and the entire conduct of the defence and the trial”. 30

The line of defence had been that Mr Macari had trusted the defendant as a business adviser as well as an agent and that it was on this basis that he had paid him the £300 as a deposit. In the opinion of the Court:

“all the evidence in this case fits, like a glove, the wording of the section and the particular wording of the charge in this case namely that the sum of £300 was entrusted to the [defendant] by Macari in order that he the [defendant] might apply it as a deposit for the purchase of a house for Macari. The only suggestion of a false pretence in connection with the payment of the money is the evidence of Mr Macari where he says that when the [defendant] returned the £300 to have it substituted by a cheque the [defendant] told him the reason was because the Society wanted a cheque and not cash. Whilst this might furnish evidence of a false pretence it cannot be put further than that and, indeed, this substitution of a cheque for cash was relied on by [counsel for the defendant] in his address to the jury as indicative of honest conduct of the applicant on that occasion.”31

The judgment went on:

“It could not be contended, and was not seriously contended that, if the sum of £300 was entrusted to the [defendant] within the terms of the Section, there was not evidence upon which the jury could properly find that it was (sic) been fraudulently converted. The [defendant]'s inaction from the end of June when the loan was sanctioned by the Society, his evasion and excuses during this period until his promise to the [Macaris'] solicitor on 1 September to repay the amount on 3 September, his failure to do so and his sending, on 20 September, of what might be regarded as a worthless cheque coupled with his own assertion that he was at all times solvent – all taken together lead to a reasonable conclusion that at some time prior to 20 September 1956 he had fraudulently converted to his own use the sum of £300 entrusted to him by Mr Macari.”32

5.9

We now turn to examine the Supreme Court decision of Cowan.33 In


30

P4 of draft judgement.

31

Id pp5–6.

32

Id p6.

33

98 ILTR 47 (Sup Ct 1958).



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that case a solicitor was held to have received money on his client's account even though his client, in signing a bank draft, was not aware that this action made it possible for the solicitor to cash or lodge to his credit the sum for which it was drawn. The essence of the defendant's defence was that since the client had been “tricked” into endorsing the draft which enabled him to collect the sum due, it could not be said that this sum had been received “for or on account” of the client.

The Court of Appeal rejected this argument. Maguire CJ delivering the judgment of the Court, noted that the facts in Heald were “very different” from those in Cowan. He considered that the use in Heald of the words “had authority to receive” the money:

“must be read in the light of the facts of th[at] case. The money was not owing to the nuns. There was consequently no liability on the two ladies to pay it to them or to anybody else, consequently they could not be said to have in any way authorised the accused or anybody else to receive it. In this case there was clearly an obligation on the [defendant] to pay or account for the sum represented by the bank draft to his client .... In this case every step taken towards making the moneys in Court available to [the client] up to and including the obtaining of the bank draft was undertaken with the full approval and authority of [the client]. He says that he did not know that the [defendant] intended to obtain and did receive a sum represented by the bank draft. This Court is of opinion, however, that even though he did not know that his action in signing the bank draft made it possible for the [defendant] to cash or lodge to his credit the sum for which it was drawn the jury were entitled on the evidence for the prosecution as a whole, to hold that the [defendant], when he received the money, did so on his client's account.”34

The Chief Justice quoted from Lord Reading CJ's judgment in Grubb:35

“In the opinion of this Court a person may be entrusted with property, or may receive it for or on account of another person, within the meaning of this section,36 notwithstanding that the property is not delivered to him directly by the owner and that in fact the owner does not know of his existence and has no intention of entrusting the property to him.”

5.10

On further appeal to the Supreme Court, Lavery J said that Heald was “clearly distinguishable”.37 He referred38 appropriately to the words of Maguire CJ in the Court of Criminal Appeal. Lavery J stressed the notion of an implied authority to collect, based on the relationship of solicitor and client, as


34

Id at 50.

35

[1915] 2 KB 683, at 689 (CCA).

36

Section 1 of the Larceny Act, 1901, re-enacted as section 20)(1)(iv) of the Larceny Act, 1916.

37

Id at 53.

38

Id.



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well as on the client's statement that he had relied on his solicitor to act in his interests and to protect him:

“It is clear that if a person pays money to another to be accounted for to a third person even without the knowledge of such third person the amount paid is received for and on account of such person. It is by no means unusual for clients to sign documents presented to them by their solicitor which they do not understand but are prepared to sign because of the trust they repose in their solicitor. It is a startling proposition that where this is done and money is obtained by the solicitor on such a signature such money is not received by the solicitor for and on account of the client. In my opinion, this is not the law.”39

O'Daly J confined Heald more clearly into its special facts:

“It seems to me that whether or not the receipt of the money by an accused person was for or on account of another must always be a question of fact. If the owner of the money has authorised another to receive it, it would be difficult to conceive how the receipt could be otherwise than for or on account of the owner. On the other hand, where the owner had not authorised its receipt it does not necessarily follow that the receipt will not be for him or on his account. The absence of authority to receive, taken with other circumstances, may indeed point in that direction and in that direction only. The circumstances of cases will differ, and I do not see that any better more useful general test can be laid down than that stated by Mr Justice Hanna in delivering the judgment of the court of Criminal Appeal in Lawless's Case,40viz, was the money received by the accused under circumstances which imposed on him a definitely binding legal obligation arising from contract or otherwise to pay it over or account for it to a third person”.41

O'Daly J noted that it had been submitted that Heald laid it down that there could not be a receipt of property for or on account of another (within section 20(1)(iv)(b)) unless it was shown that the accused had authority to receive the property for or on account of that other. He could:

“not agree that the case lays down any such general proposition. The judgment of the Court in Heald's Case accepts Lawless's Case as correctly stating the law and the observation of the court with regard to the authority of the accused to receive the money is, as I read it, related to the special facts of the case there being examined”.42


39

Id at 52–53.

40

[1930] IR 247.

41

98 LITR at 56.

42

Id.



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Later in his judgment, O'Daly J engaged in a more direct onslaught on Heald. Noting that the Court of Criminal Appeal in Heald had apparently not been referred in argument to Grubb, he started:

“I regard Heald's Case as deciding little more than that on the facts of that particular case the [defendant] was not guilty of the offence of fraudulent conversion, and this would seem to be the view that commended itself to the Court of Criminal Appeal in this case. But if, as submitted by counsel for the appellant, Heald's Case is to be read as laying down the principle that, in every case, it must be shown that the person charged had authority to receive the money in question on behalf of the person for or on whose account it was received, before such person can be convicted of the offence of fraudulent conversion, in my opinion the decision goes too far. In my opinion the passage quoted by the Chief Justice in the judgment of the Court of Appeal in this case, from the judgment of Lord Reading, CJ, in Grubb's Case is a correct statement of the law, and I would add to it that a person receives property for or on account of another person when he receives it in such circumstances as to give rise to a duty or obligation to account for it to such other person“.43

5.11

In view of Cowan's treatment of Heald, and especially O Daly J's judgment, it would seem very difficult to place reliance on Heald, save as a precedent dealing with its very special facts. Even in this context, it is hard to see how a prosecution should fail (assuming that the case were not to be viewed as one essentially of false pretences) in the light of the language of section 20(1)(iv)(a) – as opposed to section 20(1)(iv)(b), which was invoked in Heald (and Cowan); section 20(1)(iv)(a) deals with a case where a person is entrusted with property in order that “he may ... apply ... for any purpose or to any person, the property or any part thereof or any proceeds thereof”. This language surely would apply to the facts of Heald, without any need to enter into the more complicated question of whether, under section 20(1)(iv)(b), a person may be held to have received property “for or on account of” one who has given him no such authorization.

5.12

The questions of fraudulent conversion can arise in relation to money entrusted to a company. The Court of Criminal Appeal addressed the subject in Singer.44 The defendant had been charged with fraudulent conversion (among other charges), the indictment stating that, being a director of Shanahan's Stamps Auctions Ltd, he had been entrusted with money by members of the public for the purchase and sale of stamps and the return of this money with any profit thereon and had fraudulently converted it to the use and benefit of the company. His defence, in part, was that no money had been entrusted to him, and that whatever there was of entrustment was to the company.


43

Id at 58. See also the discussion of the unreported decision of the Court of Criminal Appeal in Fitzgibbon, 25 March 1958, by Anon, Fraudulent Conversion: A Modern Crime, Part 1, 93 Ir LT & Sol J 17, at 18 (1959).

44

CCA 23 June 1961 (No 329 of 1990), 1 Frewen 214.



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O Dalaigh CJ for the Court of Criminal Appeal noted that in Grubb,45 it had been:

“laid down that the words 'being entrusted' of the Larceny Act, 1901, s1 must not be read as being limited to the amount of the delivery of the property of the owner but may cover any subsequent period during which the person becomes entrusted with the property and if a company is used by the directions of an accused as the instrument to enable him in the nature of the company to become possessed of the property and by means of the company to convert it fraudulently either to his own use or benefit or the company's, he would be guilty of an offence under the statute”.46

The Court of Criminal Appeal accepted “the principle of Grubb's case”.47 It noted that the jury's attention ought to have been directed to the material question of fact to warrant a conviction on this basis, namely, whether the defendant had had such control of the affairs of the company as to have in fact become entrusted with the money, although it had normally been delivered to the company or paid into its banking account. This had not been done.

5.13

Fraudulent conversion may of course be proved in a straight- forward case by showing a specific act of misappropriation on the part of the defendant, but circumstantial evidence may suffice.48

In Murphy49 Davitt P (for the Court) said:

“In this case there is no direct evidence of any specific acts of misappropriation. In cases of this kind there seldom is, and the prosecution have to rely upon circumstantial evidence. The evidence which is usually relied on is to the effect that the accused was bound to pay, or to account for, the money on a certain date, or when required by a person invested with any proper authority, and that he failed to do so. Any set of circumstances which makes the inference inevitable that a fraudulent conversion has taken place is, however, sufficient to sustain a conviction.”

5.14

A “general deficiency” count may be permitted “where it is impossible for the prosecution to trace specific items or to split the aggregate sum into identifiable amounts”.50


45

Supra.

46

1 Frewen, at 225.

47

Id.

48

McCutcheon, para 86.

49

CCA No 35 of 1947, 6 June 1947, 1 Frewen 85 at 87. See also A [1941] Ir Jur Rep 55, at 57 (Circuit Ct, Judge Davitt).

50

McCutcheon, para 86, citing Singer, 1 Frewen 214, 229, Balls, LR 1 CCR 328 (1871) Lawson, [1952] 1 All ER 804.



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In Singer,51 the defendant was charged with (inter alia) fraudulent conversion of a sum in excess of £700,000. The amount was calculated on the basis of the deficiency in the company's assets when it had gone into liquidation.

O Dalaigh CJ (for the Court of Criminal Appeal) considered that there has been “a serious“ 'overlap' in the charges”. The “general deficiency” count had “recharged” the fraudulent conversion of sums of money which were the subject of specific charges under subsequent counts. The very presence on the indictment of these subsequent counts was enough to demonstrate that what the prosecution had done, in the case of the “general deficiency” count, was:

“to lump together, among other things, a great number of alleged conversions which occurred in the payment of 'profits' to identifiable persons on identifiable occasions. There may indeed be circumstances such as in Balls' Case52 when a general deficiency count should be permitted. Such circumstances are entirely absent here. The applicant has had the results of a balance sheet for 10 1/2 months trading placed against him as a specific charge. He cannot reasonably be asked to meet a charge in that form unless the law is to be altered and criminal trials are to be conducted before examiners in chancery.”53

Mens Rea

5.15

On the question of mens rea, it is clear that an “honest” belief in legal entitlement to act as one did is a ground for acquittal, even where this claim to entitlement to act thus is not founded in law or in fact.54 Whether a person should be acquitted in any other circumstances of honest belief or conduct is not entirely clear. In Grey,55 O'Byrne J delivering the judgment of the Court of Criminal Appeal said that fraud under section 20, as under various other sections of the 1916 Act, was:

“the outstanding and characteristic element of the various crimes dealt with by that code. Apart altogether from the Act, the terms “fraud” and “fraudulent” are in common and extensive use in our civil and criminal law. It would be difficult, if not impossible, to define “fraud” in such a way as to provide for every case in which the term may be used and I do not propose to attempt to do so. It normally refers to something dishonest and morally wrong, particularly the acquisition of pecuniary or material benefits by unfair means.”

This clearly suggests that the notion of “fraud” is not identical to the notion of an absence of an honest claim of right: if matters were that simple, the judge would surely have said so rather than refer to the difficulty, if not impossibility, of


51

CCA 23 June 1961 (No 39 of 1960), 1 Frewen 214.

52

LR 1 CCR 328.

53

Op cit at 229–230.

54

Cf Grey, [1944] IR 326, at 333 (CCA per O'Byrne J for the Court), Bernhard, [1938] 2 KB 264.

55

[1944] IR at 331–332.



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defining fraud in such a way as to provide for every case in which the term is used. However, O'Byrne J's subsequent express endorsement as “a correct statement of the law”56 of the test set out in Bernhard57 suggests that the absence of fraud should be restricted to an honest claim of right. As against the latter view, it may be argued that, on the facts of Grey, the defence was essentially one of an honest claim of right so the Court may have considered that it had no reason to address the issue of the absence of fraud outside this context.

Fraudulent Trustees

5.16

Fraudulent trustees under express trusts created by deeds or wills are excluded from the scope of section 20(1)(iv) by section 20(2). In view of the precise definition of “trustee” contained in section 46(1) of the Act, it seems that fraudulent conversion by a trustee under an express trust, even though created in writing,58 nonetheless falls within the scope of section 20(1)(iv), provided the writing is not contained in a deed or will. Section 21 deals with fraudulent conversion by trustees or express trusts in writing and provides for the same maximum penalty as for an offence under section 20. The sanction of the Director of Public Prosecutions is required for a prosecution under section 21.59 Another and more controversial limitation to prosecution under this section is that no prosecution may be commenced by any person who has taken any civil proceedings against the trustee, without the sanction also of the court or judges before whom such civil proceedings have been had or are pending. The scope of this proviso seems intolerably wide. It could, on a literal interpretation, prevent a person from initiating a prosecution against a trustee under the section by reason of having sued the trustee for injuries caused by the trustee's dog ten years' previously. Even if the proviso were interpreted as relating to civil proceedings for breach of trust, taken within no more than a short period before the intended prosecution, a constitutional issue could arise.

The idea behind the proviso is presumably to force the beneficiary to decide between pursuing the matter civilly or criminally. If he takes the former option, the criminal courts should not have to be troubled by the matter. The idea that society's interest in prosecutions for criminal breach of trust is so tentative may be doubted. Moreover, there may be objection to a provision which thus inhibits the entitlement to litigate for victims of such crimes.

Factors and Agents

5.17

Finally, in this context, it should be noted that section 22 of the Act makes it an offence, with the same maximum penalty as under sections 20 and


56

Id at 333.

57

Supra.

58

Although section 46(1) defines a trustee as “a trustee on some express trust created by some deed, will, or instrument in writing ...” (emphasis added), this does not, in conjunction with section 20(2), have the same effect of removing trustees from the scope of section 20(1)(iv), since the section 20(1)(4) speaks merely of one “entrusted ... with property”, and section 20(2) excludes from the scope of section 20(1)(iv) only trustees of express trusts “created by a deed or will”.

59

See proviso (a) to section 21, and the Prosecution of Offenders Act, 1974, section 3(1).



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21 for a factor or agent, in violation of good faith, to obtain an advance on the property of the principal.

2. False Accounting

5.18

In 1875, a measure generally known as Lope's Act, came into effect, designed to provide a penalty for dishonest clerks where the evidence of embezzlement or larceny was too thin. The Falsification of Accounts Act, 1875 makes it an offence for a clerk or servant wilfully and with intent to defraud, to alter or make a false entry in or omit a material particular from any account of his master.60 As Kenny observes:

“An indictment for this offence of false accounting is often useful where a clerk to whom a customer has paid money is suspected of misappropriating it, but no more can be actually proved than that he has never credited the customer with the amount. If, however, his books show correctly the sum which he ought to have in hand, the fact of his not really having that amount ready to hand over does not render the entry a 'false' one within this statute.”61

5.19

In Foley,62 the defendant was the secretary and treasurer of a union, in charge of all receipts and payments. He made false entries of payments to a doctor. He was charged with fifty four counts of larceny as a servant and of making false entries.

The Court of Criminal Appeal upheld his conviction. It appeared to the Court that:

“there was before the jury uncontradicted evidence that the accused had made the alleged 27 false entries in a book over which he had complete control and for the accuracy of which he was responsible, and that those entries were made with a knowledge of their falsity.”63

On the question of intention to defraud, counsel for the accused submitted that the trial judge had failed adequately to direct the jury on the meaning of “intention to defraud”. The Court rejected this submission as follows:

“It may well be questioned whether any specific direction was necessary on this point as the words, when applied to the facts of this case, are self explanatory. It was not suggested that the entries were not false; nor could it be suggested that if the particular entries were made with a knowledge of their falsity an inference of intent to defraud would not reasonably be drawn as the evidence of [the doctor] that he did not


60

Id.

61

Id.1

62

17 May 1950 (26–1950).

63

Id.



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receive the money was not challenged. The only defence open would be that all the 27 entries were made in circumstances in which the accused did not know of their falsity. But as his was the hand whose duty it was both to make the entry and to pay the money such a suggestion is one which could not be entertained by any reasonable jury. We think that when the learned judge directed the jury that mere falsity of entries was not sufficient to constitute the crime but that they must be satisfied there was an intent to defraud then his direction in the circumstances of this case, though short, was adequate.”



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CHAPTER 6: FORGERY, COUNTERFEITING AND RELATED MATTERS

Forgery

6.1

The criminal law on forgery traces its origins to the lex Cornelia de falsis sponsored by Sulla in 81 BC.1 This law was concerned primarily with falsification of testamentary dispositions, the seals of other instruments and their attestation. It was only later that juristic interpretation extended the scope of the law to instruments of a public character:

“Julius Caesar, breaking with the republican rule against the public display of the images of living men, caused coins to be struck bearing his head, and this practice was followed by the Emperors who developed the policy of self-protection by the exaltation of their persons to the height of divinity (or quasi-divinity after the official adoption of Christianity). In accordance with this policy there appeared enactments making it criminal to belittle their images by tampering with or counterfeiting their coinage. Thus treason, coinage offences, and forgery came to be intermingled. It seems to have been due to this situation that early English law closely linked coinage offences, falsification of Royal seals, and treason.”2

6.2

Gradually the net was cast wider. A statute in 1562 made it an offence to forge any “false deed, charter, or writing sealed, court roll or the will of any person or persons in writing”3 and “any obligation, or bill obligation, acquittance, release or discharge of any debt, account, action, suit, demand or other thing


1

See Turner, “Documents” in the Law of Forgery, 32 Va L Rev 939, at 941 (1946).

2

Id.

3

28 Eliz c 3, section 1. The penalty extended to pillory, cutting the convicted person's ears off, slitting his nostrils and searing them with a hot iron, “so as they may remain for a perpetual note and mark of his falsehood”. The profits of his lands for life were forfeited to the Queen; a sentence of life imprisonment was to be imposed; and the injured party was entitled to double costs and damages.



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personal”.4 It appears from Coke,4 however, that in all cases save testaments, documents under seal were envisaged. By 1727,5 the courts were willing to interpret the 1562 statute as being premised on the recognition that the forging of an unsealed writing was already indictable as a forgery at common law.

Hawkins, writing half a century later, was more circumspect, limiting the crime to “falsely and fraudulently making or altering any matter of record; or any other authentic matter of a public nature, as a parish register, or any deed or will”.6 He went on to note that for other writings of “an inferior nature”,7 the counterfeiting of them was “not properly forgery”.8 He ventured, tentatively, to explain this distinction on the basis that:

“the former is in itself criminal, whether any third person be actually injured thereby or not, but that the latter is no crime, unless some one receive a prejudice from it.”9

Turner has commented:

“Here we have the first pronouncement of a distinction between a group of documents of so important a public character that the crime is complete when they are forged, irrespective of there being any intention to defraud any person thereby, and another group in which the prosecution cannot succeed unless they can prove that there was such an intention.”10

6.3

The Forgery Act, 1861 dealt with the matter in some detail. It has been largely (but not completely) overtaken by the Forgery Act, 1913, which remains the most important piece of legislation on the subject, supplemented by other statutory provisions dealing with forgery in specific contexts. Section 1 of the 1913 Act provides, in subsections (1) and (2), as follows:


(1)


For the purpose of this Act, forgery is the making of a false document in order that it may be used as genuine, and in the case of the seals and dies mentioned in this Act the counterfeiting of a seal or die, and forgery with intent to defraud or deceive, as the case may be, is punishable as in this Act provided.


(2)


A document is false within the meaning of this Act if the whole or any material part thereof purports to be made by or on behalf or on account of a person who did not make it nor authorise its making; or if, though made by or on behalf or on account of the person by whom or


4

Coke, Institutes, vol 3, 169ff (6th ed, 1680). See Turner, supra, at 943–944.

5

Ward, 2 Ld Raym 1461, 92 ER (KB, 1727). See Turner, supra, at 944.

6

Hawkins, Pleas of the Crown, 263 (8th ed, 1824).

7

Id, at 266.

8

Id.

9

Id.

10

Turner, supra, at 945.



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by whose authority it purports to have been made, the time or place of making, where either is material, or, in the case of a document identified by number or mark, the number or any distinguishing mark identifying the document, is falsely stated therein; and in particular a document is false:–


(a)


if any material alteration, whether by addition, insertion, obliteration, erasure, removal, or otherwise, has been made therein;


(b)


if the whole or some material part of it purports to be made by or on behalf of a fictitious or deceased person;


(c)


if, though made in the name of an existing person, it is made by him or by his authority with the intention that it should pass as having been made by some person, real or fictitious, other than the person who made or authorised it.”

These provisions give rise to a number of questions, which we should examine in turn.

What is a Document?

6.4

The first question concerns the meaning of the term “document”. The word replaces “writing” which appeared in early decisions and commentaries.11 The 1913 Act nowhere defines “document”.

The commentators are not in agreement as to how that term should be understood. Debate has taken place against the background of the “difficult”12 decisions of the English Court for Crown Cases Reserved in Closs13 and Smith.14 In Closs, the Court held that the defendant who had put the name of a well-known painter on a painting which was not in fact the work of that painter was not guilty of forgery. Cockburn CJ said:

“A forgery must be of some document or writing; and this was merely a mark put upon the painting with a view to identifying it, and was no more than if the painter put any other arbitrary mark as a recognition of the picture being his.”15

6.5

In Smith, the defendant sold baking powder in printed wrappers, which were identical in every respect with a far more well-known competitor's wrappers, save that they omitted the warning written on the competitor's wrappers, reminding the public that no wrapper without the competitor's


11

Cf Turner, supra, at 947.

12

English Law Commissions WP No. 26, Criminal Law: Forgery, para 18 (1970).

13

Dears & B 460, 169 ER 1082 (1857).

14

Dears & B 566, 169 ER 1122 (1858).

15

Dears & B, at 466, 169 ER at 1084.



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signature was genuine.16 The Court for Crown Cases Reserved quashed a conviction for forgery.

Pollock CB said:

“The defendant may have been guilty of obtaining money by false pretences; of that there can be no doubt; but the real offence here was the inclosing the false powder in the false wrapper. The issuing of this wrapper without the stuff within it would be no offence. In the printing of these wrappers there is no forgery, nor could the man who printed them be indicted. The real offence is the issuing them with the fraudulent matter in them. I waited in vain to hear [counsel for the prosecution] shew that these wrappers came within the principle of documents which might be the subject of forgery at common law. Speaking for myself, I doubt very much whether these papers are within that principle. They are merely wrappers, and in their present shape I doubt whether they are anything like a document or instrument which is the subject of forgery at common law. To say that they belong to that class of instruments seems to me to be confounding things together as alike which are essentially different. It might as well be said, that if one tradesman used brown paper for his wrappers, and another tradesman had his brown paper wrappers made in the same way, he could be accused of forging the brown paper”.17

Bramwell B, concurring, said:

“Forgery supposes the possibility of a genuine document, and that the false document is not so good as the genuine document, and that the one is not so efficacious for all purposes as the other. In the present case one of these documents is as good as the other – the one asserts what the other does – the one is as true as the other, but one gets improperly used ....”18

6.6

As we have noted, the commentators have proposed radically differing interpretation of the notion of a “document”. One view, favoured by Professor Glanville Williams,19 and receiving the support of Smith & Hogan20 is that a document that has utility (functional or aesthetic)21 apart from the fact that it conveys information or records a promise does not fall within the scope of the term “document” for the purposes of forgery. The test is not entirely satisfactory, as Smith & Hogan acknowledge:


16

The defendant engaged in a similar but even more extensive deception with regard to egg powder wrappers. Here, in the absence of any warning on the competitor's wrappers, the two sets of wrappers were identical.

17

Dears & B, at 573–574, 169 ER at 1125–1126.

18

Id, at 575 and 1126, respectively.

19

Williams, What is a Document?, 11 Modern L Rev 150, at 160 (1948).

20

Smith & Hogan, 1st ed 469.

21

Cf Williams, op cit, at 160.



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“For one thing it would mean, presumably, that if [the innocent competitor in Smith] had packed the baking powder in tins on which were glued labels carrying the same information as the wrappers, the labels would be documents, and could be forged since they now have no utility apart from carrying information”.22

A modification of this approach, favoured by Smith & Hogan and Williams, would require not merely that the writing lack independent utility but that it be an instrument as well:

“Although 'instrument' might be thought to spawn just as many difficulties as 'document' the word is of some help in carrying the idea of a document which is made for the purpose of creating or modifying or terminating a right. A wrapper or a label would not usually be considered an instrument in this sense but a certificate testifying to the authenticity of a painting, or to a man's competency to drive a vehicle or even a football pools coupon would be considered instruments.”23

6.7

Turner (who edited Kenny and Russell) favoured a more philosophical approach. In his view:

“a document is writing in any form, on any material, which communicates to some person or persons a human statement, whether of fact or fiction.”24

He went on to argue as follows:

“Writing is human speech expressed in a more permanent form than sound, and reaching the mind of the person to whom it is addressed by another sense than that of hearing. Therefore a document is a human statement, that is to say, a message proceeding or purporting to proceed from the human mind. Accordingly a merely mechanical register such as the 'reading' on a thermometer or a weighing machine or a gas meter is not a subject for a crime of forgery. Secondly the writing must convey the same message of the spoken word to all persons able to read it. Accordingly a drawing or a painting, as works of art, are not documents since such effect as they may create in the mind of the onlooker is emotional and will not necessarily be the same to all who view them. Of course symbols in picture form may be used as a code and then they are a writing, just as are the words written in the recognized shapes of the ordinary alphabets. Thirdly, it is immaterial on what base or how the writing is made; it may be painted or limned on anything capable of retaining the colour or marks; it may be carved into stone or embossed


22

Op cit, at 469.

23

Id (footnote references omitted).

24

Kenny, para 380.



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in paper; it may be transient or lasting.”25

This passage gives rise to several points of discussion. First, the reference to writing as “human speech expressed in a more permanent form than sound” needs clarification. If something is written, it may never have actually been spoken: the writing may represent the result of thinking with no intermediate spoken dimension. What Turner doubtless intends is that the written matter have been capable of being spoken. This raises a philosophical question. It is not the case that all meaningful modes or contents of communication are capable of being spoken: an effigy,26 for example, may involve a communication in relation to which speech (“this suggests that the person depicted is a murderer”) can of necessity be no more than an interpretation. Similarly, certain non-verbal emanations – hissing,27 booing,28 or gesturing for example – may have proportional import.

6.8

The notion of writing as being “a more permanent form than sound” requires reconsideration in the light of technological advances in regard to video-recorders and tape recorders. In this context it is worth noting Turner's observations, published in 1946:

“At the present day we are perhaps at the beginning of the development of writing in the air by means of smoke emitted from aeroplanes. From what has been said it will be observed that it is irrelevant what base for a writing is adopted so long as it is adequately durable, and further that it is irrelevant what means are adopted to mark that base so long as the marks can convey the required record to the reader. Before the use of parchment or paper was devised, writing had to be made on such substances as wood, stone or metal. It is plain, therefore, that there is nothing in the nature or purpose of writing itself to require any particular medium and that the desired idea can be, as it were, embalmed in any available material.”29

Turner's requirement that a document should be a message “proceeding or purporting to proceed from the human mind” requires consideration. It is, as we have seen, the basis for his assertion that “[a]ccordingly a merely mechanical register such as the 'reading' on a therometer or a weighing machine or a gas meter is not the subject for the crime of forgery”. Turner expands on this argument as follows:

“The reading of a meter is not a message from the maker of the meter. It would, for example, be absurd to maintain that when a watch made by 'X & Co' stopped through not having been wound up, or that when it became out of adjustment and so gained or lost, the direction of the


25

Id.

26

Cf Monson v Tussauds, [1894] 1 QB 671 (CA).

27

Cf Gregory v Duke of Brunswick, 6 M & Gr 953, 134 ER 1178 (1843).

28

Id.

29

Turner, supra, at 950.



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hands was a statement by 'X & Co' that, when it left our hands, it was in good order.”30

6.9

Central to this line of argument is the temporal variability of the readings rather than the fact that they are produced by a “merely mechanical” register. If a machine is designed to make a once-off reading rather than to record a sequence of readings over time, there seems no doubt but that the once-off reading could be the subject of forgery despite the mechanical process involved. But is it not also arguable that a later reading in a sequence of readings is capable of being forged? If a public electronic thermometer attached to the front of a bank or shop records the temperature at street level, why should it not be possible to designate as forgery the manipulation of the electronic system so that a false record is obtained?

Turner, presents a curious argument in support of the thesis that a drawing or painting is not a document. This is, he says, because the writing must convey the same message of the spoken word to all persons able to read it, and drawings or paintings, as works of art create an emotional effect in the mind of the onlooker, which will not necessarily be the same to all who view them. In Turner's view, a signature on a painting (as distinct from the painting itself) can constitute a document, contrary to the view of the Court for Crown Cases Reserved in Closs.31

6.10

Section 2(1) of the 1913 Act makes it a felony punishable with penal servitude for life to forge with intent to defraud wills, codicils and other testamentary documents, deeds, bonds, or bank notes. Section 2(2) makes it a felony punishable with penal servitude for up to fourteen years to forge, again with intent to defraud, valuable securities, documents of title to lands or goods, powers of attorney in relation to stocks or shares, entries in books or registers which constitute evidence of title to any such shares or dividends, policies of insurance, charter-parties, documents relating to Government annuities, certificates of the revenue authorities and related documents.

6.11

Section 3 makes it a felony to forge any of the official documents listed in the section, with intent to deceive or defraud. It grades the penalty in accordance with the level of importance of the document in question. These documents include birth, marriage and death certificates and official court documents.

6.12

Section 4(1) makes the forgery of other documents with intent to defraud32 a misdemeanour. Section 4(2) provides that the forgery of any public document, which is not otherwise made a felony, is to be a felony, if committed with intent to defraud or deceive.


30

Supra at 385, fn 1.

31

Supra.

32

Note that an intent to deceive does not suffice. This preserves the position at common law, first articulated by Hawkins: cf supra, pp144–145.



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6.13

Section 5 deals with the forgery, with intent to defraud or deceive, of certain seals and dies.

Typical Instances of Forgery

6.14

Smith & Hogan33 helpfully describe typical instances of forgery:

“The most common is where the document, or some material part thereof, purports to be made by, or with the authority of, one who did not make it or authorise its making. It is forgery, then, where D, without authority, signs P's name to a cheque, or where D, without authority, alters the amount payable on the cheque, or where D, given a signed blank cheque, enters an amount higher than he is authorised to enter as payable on the cheque.

It is forgery for D to sign a document in his own name intending to pass his signature off as the signature of another person, real or fictitious. It is also forgery where D procures P, who is unaware of D's fraud, to sign his own name, D intending to pass off P's signature as that of another person of the same name.”

The Meaning of “Defraud” and “Deceive”

6.15

In an English case34 dealing with the meaning of the expressions “defraud” and “deceive” (in a context other than that relating to forgery), Buckley J said (obiter):

“To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.”

Commenting on this statement, Kenny35 notes that it has been:

“much quoted in relation to cases of forgery but it has not always been interpreted in accordance with the laws of logic. The careful reader will see that the definition proper of 'defraud' is wholly contained in the words, 'to defraud is to deprive by deceit'. The words which follow merely indicate the general class in which the defrauding is placed, namely, the causing of injuries; and the judge's statement goes on to give an even wider classification by indicating that defrauding is in that genus of conduct which deceitfully induces a course of action. It would,


33

Op cit, at 474 (footnote references omitted).

34

In re London and Globe Finance Corporation, [1903] 1 Ch 728, at 732–733.

35

Kenny, para 377.



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however, be a logical error of an elementary kind36 to reverse such a statement and to say 'deceitfully to induce a course of action is to defraud'. It is obvious that the genus contains many other species besides defrauding; for example to make a false statement which causes a man to touch something which gives him a painful electric shock would be by deceit to induce a course of action, but it would not be 'to deprive' him of anything.”

6.16

In Welham v DPP,37 in 1960, the House of Lords addressed the issue, affirming the conviction of a man in the motor trade who had witnessed forged hire-purchase agreements on which finance companies had advanced his firm money, his defence being that he thought the agreements had been designed to mislead the authorities into believing that the finance companies had complied with necessary credit restrictions. He was considered to have uttered the document with the intention to defraud the authorities since he had intended to induce them to act in a manner in which they would not have done had he not acted deceitfully.

It appears that honesty and a claim of right made in good faith will defeat an allegation of intent to defraud.38

Forgery and False Pretences Distinguished

6.17

Forgery must be distinguished from the offence of false pretences. In forgery it matters not that the intended victim was not defrauded, nor that the intention was to obtain something from the victim to which the forger was entitled.39 Forgery involves engaging in specified conduct with an intent to defraud or deceive, as the case may be. The prosecution do not have to show that such intent related to any particular person.40

Under section 55(1) of the Central Bank Act, 1942, a person who makes or carries to be made, or uses for any purpose whatsoever, or utters a document purporting to be or in any way resembling or so nearly resembling as to be calculated to deceive, a bank note or part of a banknote, is guilty of an offence. Section 55(4) which made the appearance of a person's name on any such document prima facie evidence that he made such document or caused it to be made, was repeated by section 4 of the Central Bank Act, 1989.

Uttering

6.18

Section 6(1) of the 1913 Act penalises the “uttering of a forged document, seal or die to the same extent as if the utterer had himself forged the item. A person utters such a forged item when:


36

Identified by Kenny, para 377, fn 5 as an “illegitimate antistrophe”.

37

[1961] AC 103. (HL (Eng), 1960).

38

Smith & Hogan, (1st ed), 476, citing Forbes, 7 C & P 224, 173 ER 99 (1835) and Parker, 74 JP 208 (1910).

39

Cf Barrow, (1884) CCC Sess Pap c, 641, cited by Kenny, para 394.

40

Kenny, para 394.



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“knowing the same to be forged and with either of the intents necessary to constitute the offence of forging [it, he] uses, offers, publishes, delivers, disposes of, tenders in payment or in exchange, exposes for sale or exchange, exchanges, tenders in evidence, or puts off the [item].”41

Smith & Hogan42 note that section 6(1)

“is widely phrased and covers virtually any use by D of the forged document, seal or die ... But merely to possess a forgery is not to utter it, nor is it enough to show that D knowingly benefited from the use of a forgery by another; to utter a forgery D must himself put it off to another. Once he has reached the stage D is guilty of uttering whether the deception is successful or not”.

6.19

Section 7 of the 1913 Act makes it an offence for a person, with intent to defraud, to demand, receive or obtain or to cause to be delivered to another person, any property, (a) under, upon or by virtue of any forged instrument, knowing it to be forged, or (b) under, upon or by virtue of any probate or letters of administration, knowing the will, testament, codicil or testamentary writing on which the probate or letters of administration had been obtained to have been obtained by any false oath, affirmation or affidavit.

The use in this section of the word “instrument” rather than “document” might suggest a term of narrower import, but the case law does not support this interpretation. In Riley43 a telegram making a bet with a bookmaker, which the defendant, a post office clerk, had falsely indicated had been handed in before the race had been run, was viewed as an “instrument of contract”.44

Wills J could see “nothing in the nature of such a section”45 which should make it necessary or desirable to restrict the application of the word 'instrument' to writings of a formal character”.46

He thought that it was “meant to include writings of every description if false and known to be false by the person who makes use of them for the purpose indicated”.47


41

Section 6(2). See Finkel & Levine, CCA, 31 July 1951 (Nos 34 & 35 of 1951), 1 Frewen 123, at 128 (per Maguire, CJ for the Court). It is immaterial where the document seal or die was forged: section 6(3). It appears that the posting of a letter containing a forged document within the State constitutes an uttering under section 6 even though the letter may be addressed to an intended victim abroad: Cf Board of Trade v Owen, [1957] AC 602 (HL (Eng)).

42

1st ed 477 (important modifications in footnotes here omitted).

43

[1896] 1 QB 309 (interpreting section 38 of the Forgery Act, 1861, which was reenacted by section 7 of the 1913 Act).

44

[1896] 1 QB at 315 (per Hawkins J). See also Howse, 7 Cr App Rep 103 (1912), Cade, [1914] 2 KB 209. Smith & Hogan (1st ed), 478, note that [t]he draftsmen used 'instrument' because it was used in the provision ... which was replaced by s7; there was no suggestion it meant anything other than document (citing Reports of Committees (1913), Vol 6 pp 104, 105).

45

i.e. section 38 of the Forgery Act, 1861, the equivalent of section 7 of the 1913 Act.

46

[1896] 1 QB at 321.

47

Id.



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6.20

The possession of forged documents, seals or dies is not always contrary to the criminal law: only the knowing possession of certain of such items48 without lawful authority or excuse49 constitutes an offence under section 8. Section 9 penalises the making, use or knowingly having in one's custody or possession paper such as is used for making a bank note (and other defined paper) or implements of forgery.

It seems that it would not be a lawful excuse to possess a forged bank note as a curio:50 the judicial attitude in a prosecution under a similar legislative provision51 in respect of a fictitious stamp was hostile to an interpretation indulgent to the eccentricities of collectors.52

Other Statutory Provisions Relating to Forgery

6.21

The forgery or alteration wilfully and without due authority of a telegram or the uttering of a telegram knowing it to be forged or thus altered, or the transmission by telegraph as a telegram or uttering as a telegram of any message or communication knowing it not to be a telegram, whether or not there is an intent to defraud is a misdemeanour.53

Counterfeiting and Related Matters

6.22

Counterfeiting is an offence under the Coinage Offences Act, 1861, as amended. Section 2 prohibits falsely making or counterfeiting coin resembling or passing for current gold or silver coin. Gilding, silvering, washing, casing over or colouring coin is made an offence under section 3, where the intent is to make them pass for silver or gold coin. The same section prohibits colouring or altering genuine copper coin with the intent to make them pass for a gold or silver coin. Impairing, diminishing or lightening gold or silver coin with the intent that they pass as current coin is an offence under section 4.

6.23

The unlawful possession of filings or clippings of gold or silver coin, knowing them to have been produced or obtained by impairing, diminishing or lightening any current gold or silver coin is an offence under section 5. Buying, selling, receiving, or paying (or related activities) of counterfeited gold or silver coins for a lower value than its denomination is an offence under section 6. Importing and exporting counterfeit coin are offences under section 7 and 8, respectively. Uttering false or counterfeit coin knowing them to be false or


48

These are forged bank notes (section 8(1)) and the following: forged dies for the marking of gold or silver plate or wares, or any ware or gold, silver or base metal bearing the impression of any forged dies; forged stamps or dies as defined by the Stamp Duties Management Act, 1891, forged wrappers or labels provided by or under the authority of the Inland Revenue or Customs and Excise commissioners (Section 8(2)), and forged stamps or dies, resembling or intended to resemble those of the local authority for the purposes of the Local Stamp Act, 1869 (section 8(3)).

49

Proof of which, according to the express language of the statute, lies on the accused.

50

Smith Hogan (1st ed), 479.

51

Post Office (Protection) Act, 1884, section 7.

52

Dickens v Gill, [1896] 2 QB 310.

53

Post Office (Publication) Act, 1884, section 11, as amended by the Postal and Telecommunications Services Act, 1983, section 8 and Fourth Schedule.



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counterfeit is an offence under section 9. Section 10 penalises more severely uttering accompanied by possession of other counterfeit coins or followed within ten days by a further uttering. Uttering as current gold or silver coin that is not such, with intent to defraud, is an offence under section 13. Counterfeiting and uttering copper coin are dealt with by sections 14 and 15.

6.24

Defacing is an offence under section 16. Uttering such coin is an offence under section 17. Counterfeiting foreign coin and related offences are dealt with by sections 18 to 23. Knowingly possessing, making or mending any coining tools without lawful authority is an offence under section 24.

6.25

The Decimal Currency Act, 1969 contains a number of relevant provisions. Section 22 provides that four specified Acts54 are to have effect in accordance with new provisions:55


1.


The Coinage Offences Act, 1861 is to apply to coins issued under the repealed enactments or the Decimal Currency Act, 1969 and for the purposes of such application –


(a)


the references, in section 1 of the 1861 Act, to coin or any particular class of coin lawfully current by virtue of any proclamation or otherwise in any part of Her Majesty's Dominions are to be construed as including references to coins lawfully current in the State,


(b)


the references in section 1 of the 1861 Act to silver coin shall be construed as including references to nickel coin, cupro-nickel coin and coin provided under section 6 of the Coinage Act, 1950 or section 4 of the Decimal Currency Act, 1969.


2.


Section 42 of the Customs Consolidation Act, 1876 is to have effect as if the following articles were added to the Table of Prohibitions and Restrictions Inwards in that section –


(a)


counterfeits of coins issued under the repealed enactments or the Decimal Currency Act, 1969,


(b)


any coins or money purporting to be coins issued under the Coinage Act, 1926 but not being of the standard weight or not being of the standard fineness prescribed by the Coinage Act, 1926, as amended by the Emergency Powers (No. 140) Order 1942 or by the Central Bank Act, 1942,


(c)


any coins or money purporting to be provided under section 5


54

Set out in column (2) of the Second Schedule.

55

Set out in column (3) of the Second Schedule.



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or 6 of the Coinage Act, 1950 and not being of the standard weight or not being of the standard composition prescribed by the said section 5 or 6 (as the case may be),


(d)


any coins or money purporting to be coins provided under section 3 or 4 of the Decimal Currency Act, 1969 and not being of the standard weight or not being of the standard composition prescribed by the said section 3 or 4 (as the case may be).


3.


Section 2 of the Revenue Act, 1889 is to apply to imitations of coins issued under the repealed enactments or the Decimal Currency Act, 1969, and for the purposes of such application the reference in subsection (4) of that section to coins lawfully current by virtue of a proclamation or otherwise in any part of Her Majesty's Dominions shall be construed as including a reference to coins lawfully current in the State.


4.


In section 10 of the Currency Act, 1927, the reference to the Coinage Act is to be construed as a reference to the Coinage Act, 1950 or the Decimal Currency Act, 1969.

6.26

Section 14 of the 1969 Act (as amended by section 127 of the Central Bank Act, 1989) provides as follows –


(1)


“(1) Except coins issued under this Act, no piece of metal or mixed metal of any value whatsoever shall be made or issued in the State as a coin or a token for money or as purporting that the holder thereof is entitled to demand any value denoted thereon.


(2)


Subsection (1) of this section does not apply to the issue by the Central Bank, before the repeal of the [Coinage] Act... 1950 effected by section 23(2) of the Decimal Currency Act, 1969, of coins provided under that Act or of coins provided, before the passing of the [Coinage] Act... 1950, under the Coinage Act, 1926, or that Act as amended by the Emergency Powers (No. 140) Order 1942, or by sections 58 and 60 of the Central Bank Act, 1942.


(3)


Every person who makes or issues any piece of metal or mixed metal in contravention of subsection (1) of this section shall be guilty of an offence and shall be liable –


(a)


on summary conviction to a fine not exceeding £1,000, or at the discretion of the court to imprisonment for a term not exceeding one year or to both such fine and such imprisonment, or


(b)


on conviction on indictment to a fine not exceeding £5,000 or at the discretion of the court to imprisonment for a term not exceeding two years to both such fine



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and such imprisonment.”



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CHAPTER 7: CHEATS PUNISHABLE AT COMMON LAW

7.1

At common law, several types of cheats and frauds affecting the public welfare and causing an actual prejudice are indictable.1Gabett, summarising the position, considers it:

“a fair result of the cases ... that a cheat, in order to be indictable at common law, must have been public in its nature, by being calculated to defraud numbers, or deceive or injure the public in general; or by affecting the public trade or revenue, the public health, or being in fraud of public justice, etc. And the other cases to be found in the books, of cheats apparently private, which have been yet held to be indictable at common law, will, upon examination, appear to involve considerations of a public nature also, or else be founded in conspiracy or forgery.”2

7.2

The boundary between deceits of only a private nature and those with a sufficient public dimension to render a fraudulent person guilty of an offence at common law has not been drawn with a great deal of clarity. A leading case is Wheatley3 There, a brewer was charged with delivering only sixteen gallons of “a certain malt liquor commonly called amber” to a customer, while charging him on the basis that he had delivered eighteen gallons, with intent to defraud, “to the evil example of others in the like case offending” and against the peace of the Sovereign. This conduct was held not to amount to an indictable offence. Lord Mansfield CJ said:

“[T]hat the fact here charged should not be considered as an indictable offence, but left to a civil remedy by an action, is reasonable and right


1

See Russell, vol 2, 1155-1165, Gabbett, vol 1, 199-206, Kenny, ch 16.

2

Gabbett, vol 1, 205. See also Russell, vol 2, 1161-1162.

3

2 Burr 1125, 97 ER 746 (1761).



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in the nature of the thing: because it is only an inconvenience and injury to a private person, arising from that private person's own negligence and carelessness in not measuring the liquor, upon receiving it, to see whether it held out the just measure or not.

The offence that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing: so, if a man defrauds another, under false tokens. For these are deceptions that common care and prudence are not sufficient to guard against. So, if there be a conspiracy to cheat: for ordinary care and caution is no guard against this.

Those cases are much more than mere private injuries: they are public offences. But here, it is a mere private imposition or deception: no false weights or measures are used; no false tokens given; no conspiracy; only an imposition upon the person he was dealing with, in delivering him a less quantity instead of a greater; which the other carelessly accepted. It is only a non-performance of his contract; for which non-performance, he may bring his action.

The selling an unsound horse, as and for a sound one, is not indictable: the buyer should be more upon his guard.”4

7.3

This emphasis on the victim's carelessness as a reason for preventing the charge from being sustainable is perhaps difficult to justify, though it is supported by respected commentators.5 Russell offers a possible rationale: “it can hardly be supposed that a cheat which is open to the detection of any man of common prudence will much affect the public”.6

Four principal types of cheats have been dealt with in the cases: (1) those against public justice; (2) those relating to false weights, measures and tokens; and (3) the provision of unwholesome food; and (4) frauds on the revenue authorities.

(1) Cheats Against Public Justice

7.4

Cheats against public justice include “[f]alse statements which tend to pervert, hinder or discredit the operation of public justice, such as the performance of judicial acts without authority, or conduct aimed at misleading


4

2 Burr, at 1127–1128, 97 ER at 748.

5

Cf Hawkins, Pleas of the Crown, vol 1 319 (8th ed, 1824).

6

Russell, vol 2, 1164.



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a judicial tribunal”.7

In Onealy v Newell8 in 1807, Lord Ellenborough CJ said that “he had not the least doubt that any person making use of a false instrument in order to pervert the course of justice was guilty of an offence punishable by indictment”.

(2) Cheats Relating to False Weights, Measures and Tokens

7.5

As Mansfied CJ's judgment in Wheatley9 indicates, cheats involving the use of false weights and measures are indictable at common law. The fraudulent use of private tokens, does not fall within the scope of the offence.10

(3) Cheats in the Provision of Unwholesome Food

7.6

The sale of unwholesome food is an indictable offence. Although generally categorised as falling under the heading of common law cheats, it is clear from the willingness11 of the courts to impose an objective test of negligence (on account of the public health considerations), there is no real requirement that the defendant should actually have intended to cheat the public or any particular victim.

(4) Frauds on the Revenue Authorities

7.7

Courts in Northern Ireland12 and England13 have held that it is an offence at common law to defraud the revenue authorities. In the Northern Ireland decision of “J”,14 Andrews LJ said:

“In my opinion, it is a common law offence to defraud the King of his revenue. It has always been a misdeamour to make a false statement for the purpose of depriving the King of any part of his revenue; and making deliberately a false return for the purpose of defrauding the revenue is, merely, what I may call a modern illustration of that principle. It is an offence under the common law, quite apart from any created by Act of Parliament.”


7

Kenny, para 337. The type of conduct here envisaged lends itself to categorisation under separate headings, in which the element of cheating may have little, or no, significance in the definition of the offence. It is useful here to recall Lord MacDermott LCJ's observation in Balley, [1956] NI 15, at 24 (CCA) that “[t]he catalogue of common law offences relating to conduct which harms or tends to harm the public interest is very extensive, and the classification of these offences by text-writers, as might be expected from the nature of the subject, has been somewhat arbitrary ...”.

8

East 364, at 365, 103 ER 382, at 383 (1807).

9

Supra.

10

Cf Lara, 6 TR 565 101 ER 706 (1796).

11

Cf Dixon 3 M & S 12, ER 516 (1814). In Treeve, 2 East PC 821, at 822 (1796), a more subjective test had been articulated: “The giving of any person unwholesome victuals not fit for man to eat, lucri causa, or from malice to deceit” was held “undoubtedly in itself” to be an indictable offence. The severance of lucri causa from “malice or deceit” is worth noting. See further Gabbett, vol 1, 201–203.

12

J”, [1933] NI 73 (Belfast City Commission, Andrews LJ, 1931), noted in 75 LJ 297 (1933).

13

Bradbury & Edlin, Hampshire Assizes, Bray J, 8 July 1920, reported [1956] 2 KB 262, affirmed [1921] 1 KB 562 (CCA 1920) Hudson, [1956] 2 QB 252 (CCA).

14

[1933] NI at 78.



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It may be that the courts will prove willing to range beyond revenue offences to embrace within the common law offence of cheat “all such acts or attempts as tend to the prejudice of the community”.15 Certainly Andrews LJ showed no fear of recognising such a principle.16 And in Hudson,17 Lord Goddard CJ appeared willing to bring within the offence any false representation “used to defraud the Sovereign, because that is a fraud on the public. The Crown and the public are really synonymous terms”.


15

Higgins, 2 East 5, at 21, 102 ER 269, (per Lawrence J, 1801).

16

Cf [1933] NI at 77.

17

[1956] 2 QB at 259. See also id, at 261–262.



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CHAPTER 8: OTHER OFFENCES INVOLVING FRAUD

8.1

In this chapter we examine briefly other offences involving fraud.1 These include bribery and corruption, corrupt rewards, obtaining credit by fraud, fortune-telling, cheating at gaming, false personation, frauds by bankrupts and arranging debtors, and other statutory frauds.

1. Bribery and Corruption2

8.2

Bribery is a misdemeanour at common law. It consists in “the unlawful offering or receiving any gift, to or by any public officer, or person having a public trust to discharge”.3 By “unlawful” it is to be understood that the gift be offered with a view to produce a corrupt exercise of duty or trust, by the officer or other person; or received by him with a corrupt intention of violating his duty or trust”.4

As regards the offering or receiving, it is not necessary that the gift should actually be given or secured.5 It is enough that a promise to make the gift has been given.6

Thus, the accused will be guilty even where the other party rejects7 the offer or otherwise fails to do what the intending briber wishes.8 In Vaughan9 in 1769,


1

See Kenny, ch 19.

2

See id, para 371, Hayes, 107–110, Russell, vol 1, ch 26.

3

Hayes, 107.

4

Id 108.

5

Id

6

Cf Plympton, 2 Ltd Raym 1377 92 ER 397 (1724).

7

4 Burr 2491 98 ER 306 (1769).

8

In Sulston v Norton, 3 Burr 1235, at 1237, 97 ER 807, at 808 (1761), Lord Mansfield, referring to the prohibition on bribery and corruption in regard to parliamentary elections, contained in section 7 of 2 Geo 2, c 24 said: “the offence was completely committed by the corrupter, whether the other party shall perform his promise or break it”.



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Lord Mansfield said:

“Wherever it is a crime to take, it is a crime to give: they are reciprocal. And in many cases, especially in bribery at elections to Parliament, the attempt is a crime: it is complete on his side who offers it.

If a party offers a bribe to a judge, meaning to corrupt him in a case pending before him; and the judge taketh it not; yet this is an offence punishable by law, in the party that offers it.10 So also a promise of money to a corporator, to vote for a mayor of a corporation; as in Plympton.11 And so also must be an offer to bribe a Privy Counsellor, to advise the King”.12

It appears immaterial whether or not the party had in fact a right to vote, provided “the corrupter thought he had, and the party claimed it”.13

Devices to give a legal colour to what is in fact a bribe will have no efficacy.14 The notion of a “public officer” embraces the holder of an office of the State,15 a public department, a judge, and the holder of ministerial, municipal or parochial office.16 It would appear that members of Parliament (or members of the Oireachtas) are not included. Bribery of members of a jury constitutes the offence of embracery.17

8.3

Corruption in municipal affairs is governed by a series of statutes: the Public Bodies Corrupt Practices Act, 1889, the Prevention of Corruption Act, 190618 and the Prevention of Corruption Act, 1916. Bribery and corrupt practices in elections is governed by Part I of Prevention of Electoral Abuses Act, 1923, as amended by the Electoral Act, 1963.19

2. Corrupt Rewards

8.4

Section 34 of the Larceny Act, 1916 makes it an offence for a person corruptly to take “any money or reward, directly or indirectly, under pretence or upon account of helping any person to recover any property which has, under circumstances which amount to felony or misdemeanour, been stolen or obtained in any way whatsoever, or received”, unless he has used “all due diligence” to


9

Supra.

10

Citing 3 Inst 147.

11

2 Ld Raym 1377, 92 ER 397 (1724).

12

4 Burr at 2500-2511, 98 ER at 311.

13

Hayes, 108.

14

Cf Sulston v Norton, 3 Burr 1235, 97 ER 807 (1761) (promissory note linked to voting in a particular way), Allen v Hearn, 1 Term Rep 56, at 59 99 ER 969, at 971 (per Lord Mansfield, 1785).

15

Vaughan, 4 Burr 2494, ER 308 (1769).

16

Russell, vol 1, 381.

17

Cf id 357-358, Hayes, 108-109, O Siochain, 250.

18

See Crew, Bribes, Part II.

19

Personation is dealt with by section 3 of the 1923 Act, which has been amended by section 1 of the Prevention of Electoral Abuses Act, 1982. See also the Electoral (Amendment) (No 2) Act, 1986, section 20, Casey, 98.



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cause the offender to be brought to trial.20

In O'Donnell21 in 1857, the defendant was charged with having feloniously and corruptly received money from the owner of a mare that had been stolen on account of helping him to recover the mare, without causing the apprehension of the thief, contrary to 9 Geo 4, C 51, section 51. The matter arose out of a dispute between the defendant and the prosecutor from the sale of a farm.

Counsel for the defendant argued that there was no evidence of the commission of a felony:

“The Act was done in pursuance of a practice common among the lower orders in Co Donegal, called a “Glen Swilly decree”, that is to say, a man who considers himself aggrieved by another seizes his goods and detains them until satisfaction is made. The common law of England ought not be strained to restrain the common law of Donegal, however impolitic that may be.”22

This argument found no favour with the court.

3. Obtaining Credit by Fraud

8.5

Part II of the Debtors Act (Ireland) 1872 deals with the punishment of debtors. Most of its provisions deal with conduct relating to bankruptcy and insolvency. However, of general importance is section 13(1) which provides that it is a misdemeanour subject to a maximum penalty of a year's imprisonment for a person “in incurring any debt or liability” to obtain credit under false pretences “or by means of any other fraud”.

This provision catches some cases of dishonesty not falling within section 32 of the Larceny Act, 1916,23 as, for example, where a man orders (and consumes) a meal in a restaurant when he does not have the means to pay for it.24 In such circumstances, the man is not guilty under section 32 because his false representation relates to an intention as to the future.

In Leon,25 the English Court of Criminal Appeal held that wagering debts void under gaming legislation26 did not fall within the scope of section 13 of the English Debtors Act, 1869, which is the same as section 13 of the 1872 Act. The Court examined the purpose of the 1869 legislation and came to the conclusion


20

See also section 5(3) of the Act making it an offence to take money “under pretence or upon account of aiding any person” to recover a stolen dog or a dog which is in the possession of any person who is not its owner. Cf McCutcheon, paras 58, 162. Under section 102 of the Larceny Act, 1861, advertising a purported reward for the return of stolen property, on the basis that no question will be asked, involves the forfeiture of £50.

21

2 Ir Jur NS 210 (1857).

22

Id at 212.

23

Supra, ch 4.

24

Jones, [1898] 1 QB 119.

25

[1945] 1 All ER 14 (CCA 1944).

26

Gaming Act, 1845.



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that wagering debts were not part of the mischief it sought to control. Singleton J (for the Court) said:

“It is difficult to think that betting transactions were contemplated by the legislature within the framework of the Debtors Act, 1869. One cannot envisage imprisonment for a gambling debt or bankruptcy arising directly from such a debt, for the legislature 24 years earlier had said in the Gaming Act, 1845 s18, that any such contract was null and void. It is to be remembered that no credit was given when the arrangement was made; it was no more than an agreement to accept bets if made up to a certain limit, and again no credit was given when a bet was placed and accepted; it was only when the fancied horse lost that a so-called debt arose and the credit was given. In our view losses so incurred are not debts within the meaning of the Debtors Act, 1869, s13, and we have come to this conclusion upon an examination of the Act itself and of its scope”.27

8.6

The meaning of “credit” obtained “in incurring any debt or liability” has given rise to some controversy. In England, in Ingram28 the Court of Criminal Appeal interpreted the term in equivalent English legislation as:

“cover[ing] the case where credit is obtained in incurring any liability not only money but money's worth. Money's worth may consist of commodities or services ...”.

In the later, and much-criticised,29 decision of Fisher v Raven30, however, the House of Lords favoured a narrow interpretation. Lord Dilhorne LC,31 commented that he:

“did not think that it follows that, because of the wide meaning to be given to the word 'liability' a wider meaning than credit in respect of the payment of money is to be given to the words 'obtained credit'. To commit an offence against the section credit has to be obtained and in its ordinary significance, in my view, the expression 'obtained credit' connotes the obtaining of credit in respect of the payment of money and no more. To constitute the offence there must be the obtaining of credit in particular circumstances, namely, in incurring a debt or liability and by particular methods, namely, under false pretences or by means or by any other fraud. I do not think that the fact that the definition of 'liability' shows that there may be a wide variety of circumstances in which the offence can be committed is any ground for interpreting the words 'obtained credit' more widely than their natural significance


27

[1945] 1 All ER at 17-18.

28

40 Cr App Rep 115, at 119 (CCA 1956).

29

See Kenny, 649 ff Anon, Obtaining Credit by Fraud – Part 2 93 Ir L T & Sol J 71, at 72 (1964).

30

[1963] 2 All ER 389 (HL (Eng)), analysed with approval by Elliott, Obtaining Credit by Fraud, 72 LQ Rev 548, at 553-555 (1956).

31

Lords Evershed, Morris, Hodson and Devlin concurring.



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imports”.32

8.7

As regards mens rea, it seems clear from the language of section 13 that the defendant must have had the fraudulent intent at the time he incurred the debt or liability. Thus, a person who intended to pay for a meal when he ordered it in a restaurant but changed his mind after he had consumed it could not be convicted under section 13.33

8.8

As the “restaurant” cases show, the period of credit need not be a long one. Thus, in Jones,34 the English Court for Crown Cases Reserved upheld the conviction of a man who ordered a meal35 when (as it turned out) he had only halfpenny in his possession. The Court was satisfied that he had thus obtained credit:

“The prosecutor might have said that he would not furnish him with the goods until he paid the price, or he might have insisted on payment in actual exchange for each article as it was supplied but he did neither; he furnished the goods under circumstances which passed the possession and property in them, relying on the readiness and ability of the defendant to pay. It does not seem to matter that the period of credit was a short period; he trusted the defendant, and parted with his goods without insisting on prepayment or upon interchangeable payment. We think, therefore, that credit was obtained.”36

8.9

A person may be convicted of the offence under section 13(1) even though his fraudulent conduct falls short of false pretences. Thus, in Jones,37 the defendant was held not guilty of false pretences because he had done nothing other than order the meal: “no inquiry was made of him, and no statement was made by him”.38 The Court for Crown Cases Reserved considered that he had nonetheless been rightly convicted under section 13(1), since he knew that the goods had been supplied, not on personal knowledge, but on the understanding that the “ordinary custom”39– to pay directly after the goods had been consumed – would be observed.

4. Fortune Telling

8.10

Section 4 of the Vagrancy Act, 1824 punishes the telling of fortunes “to deceive or impose upon” any person. We have already referred to this provision in our Report on Vagrancy and Related Offences40 where we recommended that


32

[1963] 2 All ER at 393 – 394 (emphasis added).

33

Cf the English decision of Ray, [1974] AC (HL (Eng), 1973), interpreting section 16(1) of the Theft Act, 1968, critically analysed by Smith, [1974] Crim L Rev 181.

34

[1898] 1 QB 119 (Ct for Cr Cas Res, 1897).

35

Consisting of six ounces of mutton, three ounces of bread and a pint of sherry.

36

Id at 124–125.

37

[1898] 1 QB 119 (Ct for Cr Cas Res 1897).

38

Id at 124.

39

Id at 125.

40

LRC 11–1985.



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the offence of fortune telling under that section should be abolished.41

5. Cheating at Gaming

8.11

Section 11 of the Gaming and Lotteries Act, 1956 provides that every person who by any fraud or cheat in promoting or operating or assisting in promoting or operating in providing facilities for any game or in acting as banker for those who play or in playing at, or in wagering on the event of, any game, sport, pastime or exercise wins from any other person or causes or procures any person to win from another anything capable of being stolen is to be deemed guilty of obtaining that thing from that other person by a false pretence, with intent to defraud, within the meaning of section 10 of the Criminal Justice Act, 1951, and on conviction punished accordingly.

8.12

This section differs in some important respects from section 17 of the Gaming Act, 1845, the 1845 Act being repealed by the 1956 Act. Section 17 caught only cheating during play. Fraudulent conduct designed to induce play, or preliminary to play, fell outside its scope. Indeed, it may be argued that section 11 of the 1956 Act, while catching the fraudulent promotion and operation of games, does not clearly attach a criminal sanction to cheating by a participant during play where that participant was neither the promoter nor organiser of the game. That person would perhaps be guilty of false pretences without the assistance of section 11.

6. False Personation

8.13

At common law, fraudulent personation can amount to a cheat. Where it is part of a larger fraudulent scheme, it can, of course, render persons who engage in the personation and their associates guilty of a substantive offence, such as larceny by a trick or obtaining money by false pretences, or of an attempt to commit such an offence, or for conspiracy to defraud.

Section 1 of the False Personation Act, 1874 makes it a felony, punishable by imprisonment for life, “falsely and deceitfully” to personate any person, or the heir, executor, or administrator, wife, widow, next of kin, or relation or any person, with intent fraudulently to obtain any land, estate, chattel, money, valuable security, or property. This legislation was enacted in response to the famous Tichborne42 case.43

Several other statutes deal with personation in specific contexts, such as voting.44


41

Id chapter 5.

42

Castro, LR 9 QB 350 (1874). See further Kenny, paras 368, 513.

43

See Russell, vol 2, 1303.

44

Cf supra, p107.



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7. Fraud by Bankrupts and Arranging Debtors

8.14

Part VII of the Bankruptcy Act, 1988 creates several offences that may be committed by bankrupts and arranging debtors and other debtors who act with the intent of defrauding their creditors. Some of these offences were originally contained in the Irish Bankrupt and Insolvent Act, 1857, the Bankruptcy (Ireland) Amendment Act, 1872 and the Companies Act, 1963 but others are entirely new. Thus, a bankrupt who fails to disclose to the Official Assignee after-acquired property,45 or a bankrupt or arranging debtor who obtains credit of at least £500 without informing the creditor of his status46 or who engages in trade or business under another name without disclosing to those with whom he enters into business transactions the name under which he was adjudicated or granted protection will be guilty of an offence.47

8.15

The central provisions of the 1988 Act are sections 123(1) and (3). Section 123(1) provides that it is an offence where a bankrupt or arranging debtor:


(a)


fails to disclose to the Court, or to the Official Assignee or to such person or persons as the Court from time to time directs, all his property and how and to whom and for what consideration and when he disposed of any part thereof, except such part as had been disposed of in the ordinary way of his trade (if any) or laid out in the ordinary expense of his family, or


(b)


fails to deliver up to the Official Assignee, or as he or the Court directs, all such part of his property as is in his possession or under his control, and which he is required by law to deliver up, or


(c)


fails to deliver up to the Official Assignee, or as he or the Court directs, all books and papers in his possession or under his control relating to his estate and which he is required by law to deliver up, or


(d)


conceals any part of his property to the value of £500 or upwards, or conceals any debt due to or from him, or


(e)


fraudulently removes any part of his property to the value of £500 or upwards, or


(f)


fails to file or deliver a statement of affairs as required by section 19(c)48 or makes any material omission in any


45

Section 127 of the 1988 Act.

46

Section 129.

47

Id.

48

Which specifies the duties of the bankrupt relating to the Official Assignee.



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statement relating to his affairs, or


(g)


knowing or believing that a false debt has been proved by any person under the bankruptcy or arrangement, fails for the period of a month to inform the Official Assignee thereof, or


(h)


prevents the production of any book or paper affecting or relating to his estate, or


(i)


conceals, destroys, mutilates or falsifies or is privy to the concealment, destruction, mutilation or falsification of any book or paper affecting or relating to his estate, or


(j)


makes or is privy to the making of any false entry in any book or paper affecting or relating to his estate, or


(k)


fraudulently parts with, alters or make any omission in, or is privy to the fraudulent parting with, altering or making any omission in, any document affecting or relating to his estate, or


(l)


attempt to account for any part of his property by fictitious losses or expense, or


(m)


obtains, by any fraud or false representation, any property on credit, or


(n)


obtains, under the false pretence of carrying on business and, if a trader, of dealing in the ordinary way of his trade, any property on credit, or


(o)


pawns, pledges or disposes of any property which he has obtained on credit, unless, in the case of a trader, such pawning, pledging or disposing is in the ordinary way of his trade, or


(p)


is guilty of any fraud or false representation for the purpose of obtaining the consent of his creditors or any of them to an agreement with reference to its affairs or the bankruptcy or arrangement”.

8.16

It is a good defence49 to a charge under any of paragraphs (a) to (d), (f), (n) and (o) if the accused proves that he had no intent to defraud – the onus being on him to do so. Equally, it is a good defence50 to a charge under any of paragraphs (h), (i) and (j) that the defendant had no intent to conceal the state of his affairs or to defeat the law – the onus again being on the defendant.


49

Section 123(2).

50

Id.



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8.17

A person other than a bankrupt or arranging debtor will commit an offence if he does any of the acts mentioned in paragraphs (e), (i), (j), (k), (l), (m), (n), or (o), with intent to defraud his creditors.51 Here, the onus is on the prosecution to prove the necessary intent, save in cases where the act is done within twelve months before the debtor is adjudicated or granted an order of protection, in which case it is to be presumed until the contrary is proved that the act was done with intent to defraud creditors.52

8. Commercial Statutory Frauds

8.18

Several statutes include provisions prohibiting fraudulent conduct in specific contexts. Thus, for example, section 242 of the Companies Act, 1990 makes it an offence for a person in purported compliance with any provision of the Companies Acts, to answer a question, provide an explanation, make a statement or produce any return, report, certificate, balance sheet or other document false in a material particular, knowing it to be false or reckless in that regard. Section 63 of the Trade Marks Act, 1963 makes it an offence (inter alia) to make or cause to be made a false entry in the register, or a writing falsely purporting to be a copy of an entry, knowing it to be false; and section 64 penalises false representations of trade marks as registered. Section 65 renders criminal the unauthorised user of State badges, emblems and flags in such a manner as to be likely to lead to the belief that the person using them is duly authorised to do so; the offence thus does not require any ulterior intent to defraud or even immediate intent to mislead anyone as to the status or entitlement of the person using them.

8.19

On occasion a statute provides for a non-criminal remedy for false representation. Thus, section 54 of the Copyright Act, 1963 prohibits the false attribution of authorships to a literary, dramatic, musical or artistic work; subsection (8) provides that this is not to be enforceable by any criminal proceedings but instead that contravention is to be actionable by the victim as a breach of statutory duty.

8.20

The Merchandise Marks Act,s 1887, 1931 and 1970 and the Consumer Information Act, 1978 contain several offences relating to false representations and related types of dishonesty in business. Thus, section 2 of the 1887 Act (as amended by the 1978 Act) makes it an offence in the course of any trade, business or profession, to apply any false trade description to goods. “Trade description” is widely defined by section 2(1) of the 1978 Act; and the expression “false trade description” contained in section 3 of the 1887 Act as amended by section 2(2) of the 1978 Act embraces a description that is false or misleading to a material degree. In a prosecution for an offence under section 2(1) of the 1887 Act in relation to the application to goods of a false representation or the causing of such an application to be made, it is not a defence for the defendant merely to prove that he acted without intent to defraud – as it had been until


51

Section 123(3)(a).

52

Section 123(3)(b). See further Irene Lynch's Annotation to the Act, ICLSA, General Note to section 123.



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1978. However, section 22 of the 1978 Act provides a narrower defence:

a defendant will escape liability where he proves:


(a)


that the commission of the offence was due to a mistake or the reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and


(b)


that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any other person under his control.53

8.21

This defence applies to proceedings for an offence under section 2(1) or 2(2) of the 1887 Act. Section 2(2) deals (inter alia), not with a person who applies a false trade description to goods, but rather to one who sells goods to which a false trade description is applied. The new defence operates in place54 of the defences contained in paragraphs (a) to (c) of section 2(2) as originally drafted.55

8.22

Section 6 of the 1978 Act penalises the making of false56 statements, knowingly or recklessly,57 in the course or for the purposes of a trade, business or profession, as to the provision of any services, accommodation or facilities. Section 7 penalises false or misleading indications of prices or charges; section 8 captures advertisements in relation to the supply of goods, services or facilities, where the advertisements are likely to mislead and thereby cause loss, damage or injury to members of the public to a material degree.

8.23

Other consumer-related statutes contain similar controls. The Packaged Goods (Quantity Control) Act, 1980, imposes duties58 carrying criminal sanction59 on packers and importers as regards the quantity of goods included in packages, and the marking of packages. Section 12 of the Hallmarking Act, 1981 prohibits (subject to certain specified defences) the addition, alteration or repair of an article bearing an approved hallmark, save in accordance with the written consent of the assay master.

9. Postal and Telecommunications Offences

8.24

Sections 12, 18 and 33(2) of the Larceny Act, 1916 prescribe offences relating to the post. Section 12 deals (inter alia) with theft of, or from, a mail


53

Section 22(1) of the 1978 Act.

54

Of section 3(2) of the 1978 Act.

55

Unless a defendant could invoke any of these paragraphs, he could not be acquitted by reason of his lack of fraudulent intent: cf Thwaites & Co v M Evilly [1904] 1 IR 310 (CA).

56

That is, false to be a material degree: section 6(4).

57

A statement made regardless of whether it is true or false is deemed to be made recklessly, unless the person making it had adequate reason for believing that it was true: section 6(2).

58

Cf sections 9–11 of the Act.

59

Cf section 17 of the Act.



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bag and the theft of “any chattel, money or valuable security” out of a postal packet in the course of transmission by post. Section 18 makes it a specific offence for an officer of the Post Office to steal or embezzle a postal packet in course of transmission. Section 33(2) deals with receiving any mail bag, or any postal packet, or any chattel, or money, or valuable security, the stealing, or taking, or embezzling, or secreting whereof amounts of a felony under the Post Office Act, 1908 or the Larceny Act, 1916 itself.

These offences reproduce similar provisions in the 190860 Act. They were included in the 1916 Act so that the latter Act “m[ight] present a complete code of indictable offences in the nature of larceny”.61

8.25

Some of the misdemeanours proscribed by the 1908 Act remain; thus it is an offence fraudulently to retain a mail bag or postal packet62 or, being a mail carrier, to be guilty of carelessness, negligence or misconduct.63

8.26

As well as these misdemeanours, the 1908 Act proscribes certain felonies, the issuing of money orders with fraudulent intent64 and the forgery and stealing of money orders.65

The 1908 Act also prohibits the imitation of post office, stamps, envelopes, forms and marks66 the making, selling or other dealing in fictitious stamps67 and the maintenance of any bogus post office or letter box.68

8.27

Section 13(1) of the Post Office (Amendment) Act, 195169 prohibits the sending of any message which the sender knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to any other person.

8.28

Section 84(1) of the Postal and Telecommunications Services Act, 1983


60

Cf section 50 (stealing mail bag or postal packet), section 52 (receiving stolen mail bag) and section 55 (stealing, embezzlement, destruction by an officer of the Post Office of a postal packet).

61

Russell, 1132.

62

Sections 53 of the 1908 Act.

63

Id section 57. It should be noted that summary proceedings brought under the 1908 Act (as amended) in relation to any function of the An Post or Bord Telecom Elreann, respectively, may be brought and prosecuted by the company in question: Postal and Telecommunications Services Act, 1983, section 5(4) and (5).

64

Section 58.

65

Section 59, which provides as follows:

(1)

“ A money order shall be deemed to be an order for the payment of money and a valuable security within the meaning of this Act and of the Forgery Act, 1861, and of any other law relating to forgery or stealing which is for the time being in force in any part of the British Isles.

(2)

If any person, with intent to defraud obliterates, adds to, or alters any such lines or words on a money order as would, in the case of a cheque, by a crossing of that cheque, or knowingly offers, returns, or disposes of any money order with such fraudulent obliteration, addition, or alteration, he shall be guilty of felony, and be liable to the like punishment as if the order were a cheque.

66

Section 64, as amended by the Post Office (Amendment) Act, 1951, section 14.

67

Section 65, as amended by the Postal and Telecommunications Services Act, 1983, section 7 and Third Schedule.

68

Section 66, as amended by section 12(3) of the 1951 Act, as amended by the Postal and Telecommunications Service Act, 1983, section 8 and Fourth Schedule.

69

As amended by the Postal and Telecommunications Services Act, 1983, section 4(1).



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provides as follows:

“A person who:


(a)


opens or attempts to open a postal packet addressed to another person or delays or detains any such postal packet or does anything to prevent its due delivery or authorises, suffers or permits another person (who is not the person to whom the postal packet is addressed) to do so, or


(b)


discloses the existence or contents of any such postal packet, or


(c)


uses for any purposes any information obtained from any such postal packet, or


(d)


tampers with any such postal packet,

without the agreement of the person to whom the postal packet is addressed shall be guilty of an offence”.

This subsection does not apply to persons acting under a power conferred on An Post by section 83 of the Act to open or otherwise interfere with postal packets, or by Ministerial direction made in the national or international interest, under section 110, or persons acting “under other lawful authority”.70


70

Section 84(2).



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CHAPTER 9: OFFENCES RELATING TO COMPUTERS

9.1

In this chapter we examine the criminal law in relation to misconduct connected with computers. We will commence by examining the position in the context of statutory and common law principles enacted or developed in times before computer technology had been created.

1. The Use of a Computer to Obtain Property Dishonestly

9.2

A person may use a computer as a means of obtaining property dishonestly. Under existing legal principles this will usually render him liable to prosecution – for larceny,1 false pretences or forgery for example.

(i) Larceny

9.3

In the Australian decision of Kennison v Daire2, the defendant, who had closed his account with a bank and withdrawn the balance of his funds, later used his cash card in one of its automatic teller machines which at the time was “off line” and did not have access to full information regarding his account. The machine was programmed in such circumstances to pay out up to 200 dollars if the card was inserted and the appropriate identification number entered. Accepting that the defendant had acted fraudulently with an intention permanently to deprive the bank of the money, the question arose as to whether the bank should on these facts be considered to have consented to its withdrawal. The Court thought not:


1

Cf the English Law Commission's Working Paper No. 110, Computer Misuse, para 3.4 (1988); George, Contemporary Legislation Governing Computer Crimes, 21 Crim L Bull 389, at 392 (1982), Tapper, “Computer Crime”: Scotch Mist?, [1987] Crim L Rev 3, at 13.

2

64 ALR 17 (1986). See Temby & McElwaine, Technocrime – An Australian Overview, 11 Crim L J 245, at 247–248 (1987).



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“The fact that the bank programmed the machine in a way that facilitated the commission of a fraud by a person holding a card did not mean that the bank consented to the withdrawal of money by a person who had no account with the bank. It is not suggested that any person, having the authority of the bank to consent to the particular transaction, did so. The machine could not give the bank's consent in fact and there is no principle in law that requires it to be treated as though it were a person with authority to decide and consent. The proper inference to be drawn from the facts is that the bank consented to the withdrawal of up to 200 dollars by a card holder who presented his card and supplied his personal identification number, only if the card holder had an account which was current. It would be quite unreal to infer that the bank consented to the withdrawal by a card holder whose account had been closed.”3

Whether the same outcome should apply where the account remained open but lacked sufficient funds is not clear. Commentators have suggested that “the indication is that larceny would still be committed”.4

(ii) False Pretences

9.4

It is not clear whether the offence of obtaining money by false pretences can be committed where the pretence is carried out on an “unsuspecting” machine, such as a computer. The Scottish Law Commission concluded5 that, under Scots law the concept of false pretence was probably sufficiently flexible to catch this type of case. In State v Hamm,6 a defendant who used another's bank card and personal identification number to obtain money from an automated teller machine was held to have made “false representations” by his conduct, to the effect that he had authority to use the card and number as he had done.

(iii) Forgery

9.5

It is possible that a prosecution for forgery may lie where a person alters computer input to increase the figure on a cheque payable to him or her for example. There is American authority in support of such a charge,7 and a commentator has observed that “[t]his analogy should hold true in all instances where a person has altered the computer's operations, at either the input o[r] programming stages, to create a false writing”.8


3

64 ALR, at 18.

4

Temby & McElwaine, op cit, at 248, who note that the point was left open in Kennison v Daire, but who cite Hands, 16 Cox CC 188 (1887), considered supra, 'which supports the view that larceny is committed”: id, at 248, fn 9.

5

Scottish Law Commission, Consultative Memorandum No. 68, Computer Crime, paras 3.8–3.9 (1986).

6

569 SW 2d 289 (Mo App, 1978). See George, Contemporary Legislation Governing Computer Crimes, 21 Crim L Bull 385, at 393–394 (1982). See also the unreported Queensland decision of Baxter, CA No. 67 of 1987 cited by Wasik, Law Reform Proposals on Computer Misuse, [1989] Crim L Rev 257, at 259.

7

United States v Langston, 41 CMR 1013 (ACMR 1970). But cf United States v Jones, 553 F 2d 351, at 351 (4th Cir, 1977).

8

Stevens, Identifying and Charging Computer Crimes in the Military, 110 Mil L Rev 59, at 80 – 81 (1985).



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2. Hacking9

9.6

We must now consider the practice of “hacking”, where a person by intrusion10 derives an unauthorised use of computer time or services. The notion of “hacking”:

“encompasses a wide range of computer-assisted activities –some legal, others criminal, and many unethical. It is an emotionally laden topic. To the business and the law enforcement communities, the hacker is a trespasser and a thief. To the news media and avid computer fans the hacker is a modern-day joy rider, roaming the electronic highways.”11

9.7

Hacking may be achieved from long range, by means of the telecommunications system, for example.12

It appears that:

“[t]he tools of the hacker can be quite simple. All that is needed is a personal computer and a device13 which enables the hacker to gain access to the public telecommunications network. Once a hacker has gained access to the network then all that needs to be done is to access individual computers by breaking their security codes. That may be by a simple password or a set of numbers or some combination. That can be obtained either through underground electronic bulletin boards or by programmes designed to break into the computers of others.”14

(i) Abstraction of Electricity

9.8

Section 10 of the Larceny Act, 1916 makes it an offence fraudulently to abstract electricity. A prosecution based on a somewhat similar provision in Hong Kong was successful. In Siu Tak-Chee15 an unreported case in 1984, the Magistrate convicted a hacker on a charge of abstracting electricity worth less than one-eight of a Hong Kong cent. “In view of the small amount of electricity abstracted, the Magistrate discharged the defendant unconditionally and ordered that no conviction be recorded, adding that the prosecution should never have been brought. Newspaper headlines following this decision included 'The hacker case that proved the law to be an ass'.”16


9

See Temby & McElwaine, op cit, at 249–251, the Scottish Law Commission's Report on Computer Crime, paras. 2.7–2.9 (Scot Law Com No. 106, 1987), the English Law Commission's WPNo. 110, paras 3.13–3.29 (1988), Tapper, “Computer Crime”: Scotch Mist? [1987] Crim L Rev 4, at 19–21, Wasik, op cit, at 259ff.

10

Later we examine the case of a person who, in breach of the terms of his or her employment, obtains an unauthorised use of computer time or services.

11

A Bequal, Technocrimes, 30 (1987), cited by Temby & McElwaine, op cit, at 249. See also Stevens, Identifying and Charging Computer Crimes in the Military, 110 Mil L Rev 59, at 71–72 (1985).

12

See Temby & McElwaine, op cit, at 249.

13

This is known as a “modem”“it alters the signals emitted from the personal computer and makes them compatible with the signals required for the telecommunications system”: id, at 249, fn 17.

14

Id, at 249–250.

15

August 1984, cited and discussed by the Law Reform Commission of Tasmania in their Report No. 47, Computer Misuse, p23 (1986).

16

Law Reform Commission of Tasmania's Report No. 47, p23.



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Clearly a prosecution for abstraction of electricity was a tangential strategy for dealing with the problem of hacking.17

(ii) Malicious Damage

9.9

It seems clear that merely obtaining unauthorised access to a computer, or information consequent on such access, will not constitute the offence of malicious damage. In the English case of Cox v Riley18 the Divisional Court held that the erasure of a program for a printed circuit card used to operate a computerised saw could constitute “criminal damage” under the Criminal Damage Act, 1971, since the card was useless without the programme stored on it and reprogramming it would require “time and effort of a more than minimal nature”.19 Although the program was intangible and thus fell outside the definition of “property” under section 10 of the 1971 Act, the English Law Commission point out that:

“so long as the defendant is charged with causing damage to some tangible part of the computer's hardware on which the information is stored – such as a 'floppy disk', or magnetic tape – then, it seems clear, he can be convicted of damage to that hardware if he deletes or alters a program.”20

(iii) The Criminal Damage Act, 1991

9.10

Ultimately, the Oireachtas chose the Criminal Damage 'route' to address hacking in Ireland and provided for it in the Criminal Damage Act, 1991. The definition of “damage” in section 1 includes, in relation to data:


(i)


“ to add to, alter, corrupt, erase or move to another storage medium or to a different location in the storage medium in which they are kept (whether or not property other than data is damaged thereby), or


(ii)


to do any act that contributes towards causing such addition, alteration, corruption, erasure or movement.

Section 5 provides


(1)


“ A person who without lawful excuse operates a computer:


(a)


within the State with intent to access any data kept either within or outside the State, or


17

Cf The English Law Commission WP No. 110, para 3.25 (1988). See also Temby & McElwaine, op cit, at 251, who note that the penalty for this offence bears no relationship to the unauthorised access. “What has occurred is that confidential information has been viewed by an unauthorised person, and it seems silly to charge ... abstracting electricity. The harm done is entirely different”.

18

83 Cr App Rep 54 (1986).

19

Id, at 56. See the English Law Commission's WP No. 110, para 3.36

20

English Law Commission WP No. 110, para 3.37.



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(b)


outside the State with intent to access any data within the State,

shall, whether or not he accesses any data, be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £500 or imprisonment for a term not exceeding 3 months or both.


(2)


Subsection (1) applies whether or not the person intended to access any particular data or any particular category of data or data kept by any particular person.

3. Interception of Communications

9.11

The interception of telecommunications messages is an offence under section 98 of the Postal and Telecommunications Services Act, 1983.

9.12

Section 9 of the Broadcasting Act, 1990 goes somewhat further:


(1)


No person, other than a duly authorised officer of the Minister, shall, in relation to a service provided by a licensee or a service provider–


(a)


intercept the service,


(b)


suffer or permit or do any thing that enables such interception by any person,


(c)


possess, manufacture, assemble, import, supply, or offer to supply, any equipment which is designed or adapted to be used for the purpose of enabling such interception by any person, or


(d)


publish information with the intention of assisting or enabling any person to intercept such a service.


(2)


No person shall–


(a)


Knowingly install or attempt to instal or maintain any equipment which is capable of being used or designed or adapted to be used for the purpose of enabling such interception by any person, or


(b)


wilfully damage or attempt to damage a system or part of a system operated by a licensee or service provider.


(3)


A person who contravenes any provision of subsection (1) or (2) shall be guilty of an offence.



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(4)


In this section “intercept” in relation to a service means receive, view, listen to, record by any means or acquire the substance or purport of the service or part thereof supplied by a licensee or service provider without the agreement of the licensee or service provider.

4. Theft of Information

(i) Unauthorised Copying of Data or Software

9.13

The two principal ways in which unauthorised copying of data or software may occur are (i) the temporary physical removal of tapes or disks in order to copy data from them, and (ii) the electronic copying of data or software.21 In the absence of Irish cases dealing with the subject, we have only decisions from other common law jurisdictions to offer some guidance on how our courts may resolve the issues that arise. Most of these decisions involve an important element of statutory interpretation. Therefore, they are somewhat less helpful than cases dealing with issues of principle arising at common law.

(ii) Temporary Removal

9.14

As a general principle, the temporary removal of property, without the intention of permanently depriving its owners of it, does not constitute larceny.22 However, a recent English decision23 has held that a temporary deprivation amounts to permanent deprivation if the intention is “to return the 'thing' in such a changed state that it can truly be said that all its goodness or virtue is gone”.24 There is, of course, no guarantee that an Irish court would take an identical view of the issue, but it is clear that the willingness to return stolen property in a valueless condition should not exempt the defendant from conviction for larceny.

9.15

In Lloyd, the English Court of Appeal (Criminal Division) held that the temporary removal of films for copying onto a master video tape, with the intention of enabling “private” copies to be sold would not amount to theft as the films remained unharmed, with their value undiminished, even though the removal “grossly and adversely” prejudiced the commercial interests of the owners of the copyright of the films. The English Law Commission take the view that:

“applying this reasoning for the temporary borrowing of a disk on which a computer programme is stored, such conduct would seldom amount to theft because if the computer program is returned, it is unlikely that the copying of the program will have removed all the virtue from it. The original would be usable and, unless the copier had flooded the market


21

See the English Law Commission WP No. 110, para 3.41 (1988), Temby & McElwaine, op cit, at 251–251, and the Scottish Law Commission's Report on Computer Crime, paras 2.12–2.17 (Scot Law Com No. 106, 1987).

22

Cf supra, pp53–56.

23

Lloyd, [1985] QB 829, at 836 (per Lord Lane, CJ).

24

Id, at 836 (per Lord Lane, CJ).



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with so many copies that it was no longer possible to sell the program at all, the program would retain some, albeit reduced, commercial value.25

Whether an Irish court would adopt such a strict view may be debated.

(iii) Unauthorised Copying

9.16

Two questions arise here: first, whether information can be the subject of larceny, and second, whether, assuming that it can, the unauthorised copying of it without physical removal constitutes an offence. As regards the first question, courts in other common law countries26 have taken differing views attributable in part to different statutory definitions of “property”.

9.17

In England, it has been held that confidential information is not property for the purposes of theft.27 In Scotland, it has been held that the dishonest exploitation of confidential information belonging to another is not a crime.28 In Canada, however, the Ontario Court of Appeal, by a majority, held29 that confidential information can constitute the subject-matter of theft. The Supreme Court of Canada has recently reversed the decision.30 Decisions in the United States are conflicting.31

9.18

Assuming for the purposes of discussion that information can be the subject of larceny, the next question is whether the unauthorised copying of it without physical removal constitutes an offence. Normally, such copying would not, since there could scarcely be said to be a “taking” and “carrying away” of the information, which still remains available to the owner. Nor would it be easy to say that the transgressor has an intention permanently to deprive the owner of the information he owns. In this respect the English Law Commission has noted that:


25

English Law Commission's WP No. 110, para 3.44 (1988).

26

See generally the English Law Commission's WP No. 110, paras 3.56–3.47, the Scottish Law Commission's Report on Computer Crime, paras 2.23–2.14 (1987), Temby & McElwaine, op cit, at 251–252, Stevens, Identifying and Charging Computer Crimes in the Military, 110 Mil L Rev 59, at 77–78 (1985), George, Contemporary Legislation Governing Computer Crimes 21 Crim L Bull 385, at 394, 404–407 (1982), Wagner, Comment, The Challenge of Computer-Crime Legislation: How Should New York Respond? 33 Buffalo L Rev 777, at 787–790 (1984), Guthrie, Annotation: Computer Programs as Property Subject to Theft, 18 ALR 3d 1121 (1966), Tapper, op cit, at 13–16, Ottaviano, Computer Crime, [1985] 1 DEA – J of L & Technol 163, at 164–168, Moskoff, The Theft of Thoughts: The Realities of 1984, 27 Crim L Q 226 (1984), Webber, Computer Crime or Jay-walking on the Electronic Highway, 26 Crim L Q 217, at 231–233 (1984), Hammond, Quantum Physics, Econometric Models and Property Rights to Information, 27 McGill L J 47 (1981), Hammond, Note: Electronic Crime in Canadian Courts, 6 Oxford J of Legal Studies 145 (1986), Hammond, Theft of Information, 100 LQ Rev [252] (1984), Wasik, Following in American Footsteps? Computer Crime Developments in Great Britain and Canada, 14 N Kentucky L Rev 249, at 253, 260–261 (1987), Menelly, Prosecuting Computer-Related Crime in the United States, Canada, and England: New Laws for Old Offences?, 8 Boston College Int'l & Comp L Rev 551, at 554–560, 568–569, 571–574 (1985).

27

Oxford v Moss, 68 Cr App Rep 183 (Div Ct, 1978), analysed by Smith, [1978] Crim L Rev 120.

28

Grant v Allan, 1987 SCCR 402. Neither the Lord Justice-Clerk (Ross) nor Lord Wylie found Oxford v Moss or Stewart of assistance.

29

Stewart, 149 DLR (3d) 583 (1983). See Wasik, op cit, at 253, Mennally, op cit, at 571–572, Webber, op cit, at 232–233, Moskoff, op cit, at 229–233, Hammond, Note: Electronic Crime in Canadian Courts, 6 Oxford J of Legal Studies 145, at 147–150 (1986).

30

See Wasik, Law Reform Proposals on Computer Misuse, [1989] Crim L Rev 257, at 270.

31

See Ottaviano, op cit, at 164–168, Stevens, op cit, at 77–78, Wagner, op cit, at 787–790.



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“[u]sually, the owner of the information will retain that knowledge even if someone else obtains it. Circumstances might exist where such an intention was to be found, such as where the copier erased the original information after having made the copy, or where all the value of the information has gone, but in general this would not be the case.”32

(iv) The Data Protection Act, 1988

9.19

The Data Protection Act, 1988 is of some limited relevance to the subject of computer crime. The Act gives effect to the 1981 Strasbourg Convention of the Council of Europe for the Protection of Individuals with regard to Automatic Processing of Personal Data. First, it is necessary to note some crucial definitions. “Data” means information in a form that can be processed.33“Processing” means performing automatically logical or arithmetical operations or data; it includes (a) extracting any information constituting the data, and (b) in relation to a data processor,34 the use by a data controller35 of data equipment in the possession of the data processor and any other services provided by him for a data controller.36“Personal data” means data relating to a living individual who can be identified either from the data or from the data in conjunction with other information in the possession of the data controller.37 And a “data subject” is an individual who is the subject of personal data.38

9.20

Section 2 of the Act deals with the collection, processing, keeping, use and disclosure of personal data. A data controller is required to comply with a number of provisions, including the following:


1.


the data to be processed fairly;


2.


they are to be accurate and, where necessary, kept up to date;


3.


data are to be kept only for one or more specific and lawful purposes; they are not to be used or disclosed in any manner inconsistent with that purpose or those purposes; they are to be adequate, relevant and not excessive in relation to that purpose or those purposes, and are not to be kept for longer than is necessary for that purpose or those purposes; and


4.


4. appropriate security measures are to be taken against unauthorised access to, or alteration, disclosure or destruction of, the data and against their accidental loss or destruction.


32

English Law Commission's WP No. 110, para 3.47 (1988).

33

Section 1(1).

34

That is, a person who processes personal data on behalf of a data controller; the term does not include an employee of a data controller who processes such data in the course of his employment.

35

That is, a person who, either alone or with others, controls the contents and use of personal data: id.

36

36 Id.

37

37 Id.

38

Id. For an excellent detailed analysis of the criminal offences prescribed by the Act, see Robert Clark, Data Protection Law in Ireland, 125–131 (1990).



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A data processor must comply with this latter requirement as to security measures, as respects personal data processed by him.

9.21

Section 21 prohibits the disclosure of personal data by a data processor or any employee or agent of his, without the prior authority of the data controller on behalf of whom the data are processed. Section 22 makes it an offence for a person who obtains access to personal data (or any information constituting that data) without the prior authority of the data controller or data processor by whom the data are kept, to disclose the data (or information) to another person.

9.22

We need not here concern ourselves with some of the main provisions of the Act: the entitlement of an individual to find out whether personal data is being kept in relation to him39 and, if so, his right of access to it.40 Nor need we consider the restrictions on this right of access,41 and the entitlement to disclose personal data in certain cases.42 Our primary concern relates to the unauthorised access to personal data.

9.23

Section 16 provides for the establishment and maintenance of a register of certain specified data controllers and data processors. Section 19 spells out some important effects of registration. A data controller to whom this section applies is not to keep personal data unless there is for the time being an entry in the register in respect of him.43 A data controller in respect of whom there is an entry in the register is under the following five negative obligations:


1.


He is not to keep personal data of any description other than that specified in the entry;


1.


he is not to keep or use personal data for a purpose other than the purpose or purposes described in the entry;


1.


if the source from which such data (and any information intended for inclusion in such data) are obtained is required to be described in the entry, he is not to obtain such data or information from a source that is not so discussed;


1.


he is not to disclose such data to a person who is not described in the entry;44 and


1.


he is not to transfer such data, directly or indirectly, to a place outside the State other than one named or described in the entry.45


39

Section 3.

40

Section 4.

41

Section 5.

42

Section 8.

43

Section 19(1).

44

Other than a person to whom disclosure is permitted by section 8 (which refers to such cases as those involving the safeguarding of the security of the State, the prevention, detection or investigation of offences, the prevention of injury to the health of a person, and the order of a court).

45

Section 19(2).



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9.24

An employee or agent (who is not a data processor) of such a data controller is subject to similar restrictions;46 and a data-processor to whom section 16 applies is not to process data unless there is for the time being an entry in the register in respect of him.47 It is a strict liability offence for a data controller or data processor to contravene the provisions requiring him not to keep or process personal data unless he is registered48; moreover, a data controller who knowingly contravenes any of the five requirements set out above49 or an employee or agent who knowingly breaches the similar requirements applying to him50 is guilty of an offence.51


46

Section 19(3).

47

Section 19(4).

48

Section 19(6).

49

Section 19(2).

50

Section 19(3).

51

Section 19(6).



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CHAPTER 10: CONSPIRACY TO DEFRAUD

10.1

The offence of conspiracy to defraud is of somewhat uncertain dimensions in Irish law.

In England, the House of Lords in Scott1 defined the offence broadly, so as to dispense with any requirement that the fraud involve deception. Viscount Dilhorne2 was of the opinion that it was:

“clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injury some proprietary right of his, suffices to constitute the offence of conspiracy to defraud.”3

Lord Diplock said:

“Where the intended victim of a 'conspiracy to defraud' is a private individual the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled. The intended means by which the purpose is to be achieved must be dishonest. They need not involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough.”4


1

[1975] AC 819. See the English Law Commission's WP No. 104, Criminal Law: Conspiracy to Defraud, Part 11 (1–87).

2

With whose speech the other members of the Court agreed.

3

[1975] AC, at 840.

4

Id, at 841.



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Where the intended victim was a person performing public duties, Lord Diplock considered it:

“sufficient if the purpose is to cause him to act contrary to his public duty, and the intended means of achieving this purpose are dishonest. The purpose need not involve causing economic loss to anyone.”5

10.2

Whether an Irish court would be disposed to define the offence so broadly may be doubted. The constitutional requirement of specificity in formulating offences6 might well be considered inconsistent with such an uncertain statement of the scope of conspiracy to defraud.7

In White8 in 1876, an indictment charged the defendant with conspiracy with others, and “wickedly devising and intending to defraud and cheat divers of Her Majesty's subjects not then ascertained”, to wit, all who should apply for and negotiate, for a loan with them, and, “by divers false pretence and subtle means and devices, to cheat and defraud of sundry large sums of money divers of Her Majesty's subjects not then ascertained, to wit, all such of Her Majesty's liege subjects as should or might at any time afterwards apply to or negotiate with the person so conspiring for a loan or loans of money”.

A writ of error brought by the defendant against conviction was successful. Whiteside CJ did:

“not think this is a defective averment, but it is an absolute omission of an important averment; for there is no averment that the goods taken were the property of the person from whom they were taken. It is one thing to cure an imperfect averment, but another to supply an omission.”9

And Fitzgerald J said:

“Is that indictment sufficient after verdict? In my opinion it is not. It is so vague that it conveys no specific idea of the offence imputed to the Defendant. It is not even alleged that the Defendant and his supposed confederates were, or professed to be, engaged in any common pursuit, such as money-lenders, bill-discounters, bankers, or agents to procure loans of money; nor are any means stated or described by which the objects of the confederates were to be achieved, so as to give the Defendant some information of the charge against him.


5

Id.

6

Cf Forde, 269–273; see also King v AG, [1981] IR 233 (Sup Ct, 1980, aff'g High Ct, McWilliam, J, 1978).

7

Cf the English Law Commission's WP No. 104, para 8.3, stating the argument that “[t]he uncertain boundaries of the offence mean that it offers insufficient guidance as to what can or cannot lawfully be done”. See also id, para 5.8.

8

IR 10 CL 523 (QB, 1876).

9

Id, at 534.



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It would seem to me to be very dangerous if a conviction could be sustained on an indictment so very general and so unspecific ....”

10.3

The Courts have frequently stated that conspiracy should not be charged when the evidence relied upon to establish it is the evidence of substantive offences also laid in the same indictment. In Singer,10 O Dalaigh CJ noted that:

“This course is not merely undesirable but is one fraught with danger in a case such as this, where the type of fraud alleged in the conspiracy differs fundamentally from the type of fraud alleged in the substantive offences charged.”11

10.4

Apart from that very reasonable restriction, the offence of conspiracy still plays an important role in our criminal law. In a recent extradition case, the Chief Justice observed that ... “(I)t would be the very negation of an adequate criminal jurisdiction and an absurdity if a person joining in a criminal act being either a conspiracy or a joint venture could escape responsibility by reason of the fact that he has committed no overt act within the jurisdiction.”12


10

CCA, 23 June 1961 (No. 39 of 1960, 1 Frewen 214).

11

Id at 229.

12

Ellis v O'Dea [1991] ILRM at p372.



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CHAPTER 11: BLACKMAIL

11.1

There is no offence of “blackmail” in our law. The term is colloquial rather than legal. Sections 29 to 31 of the Larceny Act, 1916 prescribe three offences commonly referred to as “blackmail”.1 Section 29 provides as follows:


(1)


Every person who –


(i)


utters, knowing the contents thereof, any letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any property or valuable thing;


(ii)


utters, knowing the contents thereof, any letter or writing accusing or threatening to accuse any other person (whether living or dead) of any crime to which this section applies, with intent to extort or gain thereby any property or valuable thing from any person;


(iii)


with intent to extort or gain any property or valuable thing from any person accuses or threatens to accuse either that person or any other person (whether living or dead) of any such crime;

shall be guilty of felony, and on conviction thereof liable to penal


1

See generally McCutcheon, 92–104, Campbell, The Anomalies of Blackmail, 55 LQ Rev 382 (1939), Winder, The Development of Blackmail, 5 Modern L Rev 21 (1941), Williams, Blackmail, [1954] Crim L Rev 79, Goodhart, Blackmail and Consideration in Contracts LQ Rev 437 (1928), Hogan, Blackmail: Another View, [1966] Crim L Rev 474.



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servitude for life ....


(2)


Every person who with intent to defraud or injure any other person –


(a)


by any unlawful violence to or restraint of the person of another, or


(b)


by accusing or threatening to accuse any person (whether living or dead) of any such crime or of any felony,

compels or induces any person to execute, make, accept, endorse, alter, or destroy the whole or any part of any valuable security, or to write, impress, or affix the name of any person, company, firm or co-partnership, or the seal of any body corporate, company or society upon or to any paper or parchment in order that it may be afterwards made or converted into or used or dealt with as a valuable security, shall be guilty of felony and on conviction thereof liable to penal servitude for life.


(3)


This section applies to any crime punishable with death, or penal servitude for not less than seven years, or any assault with intent to commit any rape, or any attempt to commit any rape, or any solicitation, persuasion, promise, or threat offered or made to any person, whereby to move or induce such person to commit or permit the abominable crime of buggery, either with mankind or with any animal.


(4)


For the purposes of this Act it is immaterial whether any menaces or threats be of violence, injury, or accusation to be caused or made by the offender or by any other person.

11.2

Section 30 provides:

“Every person who with menaces or by force demands of any person anything capable of being stolen with intent to steal the same shall be guilty of felony and on conviction thereof liable to penal servitude for any term not exceeding five years.”

11.3

Finally, section 31 provides as follows:

“Every person who with intent –


(a)


to extort any valuable thing from any person, or


(b)


to induce any person to confer or procure for any person any appointment or office of profit or trust,



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(1)


publishes or threatens to publish any libel upon any other person (whether living or dead); or


(2)


directly or indirectly threatens to print or publish, or directly or indirectly proposes to abstain from or offers to prevent the printing or publishing of any matter or thing touching any other person (whether living or dead);

shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment, with or without hard labour, for any term not exceeding two years.”

11.4

As may be seen, there is “considerable duplication”2 between these three sections.

Smith & Hogan note that:

“One trouble has been that the piecemeal legislation creating a proliferation of offences has never been adequately rationalised; faced with a burdensome inheritance the draftsmen of the Act chose to devise it unimproved. Another springs from a shift in social mores. In more robust times physical pressure was regarded as more dangerous than psychological pressure, but now the latter is seen as the more insidious. Few pause to inform the authorities where they are threatened with violence: many hesitate where they are threatened with disclosure of sexual deviation. But the provision, s31, which most aptly provides for the latter kind of case carries a punishment which is generally considered inadequate for the offence, and so, by judicial interpretation, it has been brought within the machinery of ss29 and 30. The result is that there is now no sharp division between the offences and frequently the same facts will constitute an offence under more than one section.”3

11.5

Section 29(1)(i) is the most wide-ranging offence. It requires, as we have seen, that the defendant utter a letter or writing demanding of any person with menaces, and without any reasonable or probable cause, any profits or valuable thing. There may, of course, be an implied demand: thus it is not necessary to show words in the imperative mood.4 The notion of menaces originally appears to have been limited to the threats of physical injury to the person or property,5 but over the years it has been extended to such threats as exposing secrets6 or publishing attacks on a company in a newspaper, which would have the effect of reducing the market price of the shares.7 In Thorne v Motor Trade Association,8


2

Williams, op cit, at 81.

3

Smith & Hogan (1st ed), 440.

4

Cf Robinson 2 Leach 749, 168 ER 475 (1796).

5

Cf Winder, op cit, Smith & Hogan, (1st ed), 441.

6

Tomlinson, [1895] 1 QB 706.

7

Boyle & Merchant, [1914] 3 KB 339.



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Lord Wright went so far as to express the view that:

“the word 'menace' is to be literally construed, and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed.”

11.6

The real difficulty in the blackmail offences9 is to discern the true meaning of “reasonable and probable cause” or, more particularly, its absence. In Thorne v Motor Trade Association,10 Lord Wright found it difficult to give a precise meaning to “probable” as distinct from “reasonable” he assumed that it added nothing to the latter term. But even if the enquiry is reduced to what is, or is not, a reasonable cause, the problem is not alleviated.

11.7

Unfortunately matters have been complicated by a disagreement half a century ago between the English Court of Appeal and the English Court of Criminal Appeal as to the reasonableness of demands made by trade associations in relation to the payment of money to abstain from putting a trader's name on a stop list. We need not here rehearse the minutiae of these cases.11 We can simply quote Smith & Hogan's insightful observation that:

“the cardinal problem is ... to draw the line between demands for property which are legitimate and demands which amount to blackmail... [T]here appears to be no formula better than that [the defendant]'s demand might be reasonable in the circumstances – however lame this may sound”.12

The actual content which Smith & Hogan suggest should be attributed to this test may not meet with universal support. They consider that where a demand of money is made as the price of refraining from exposing the victim's sexual misconduct, on “almost every occasion”13 this will constitute blackmail, but that it is possible to envisage realistic circumstances in which it would not. Where the person making the demand was proposing to publish her memoirs, she was lawfully at liberty to do so although the consequence would be to ruin the victim, and she was equally lawfully entitled, as an alternative to this, to adopt a course more lenient to [the victim], by selling the memoirs to him.14 But if she demanded a price that was extravagant having regard to their commercial value, this might be “quite another matter”.15

11.8

Smith & Hogan are of the view that the considerations governing this type


8

[1937] AC 787, at 817.

9

It might be considered that, in the absence of this expression in section 31, the offence there prescribed would be committed even where there was reasonable and probable cause. As we shall see, such a possible interpretation has been doubted by McCutcheon, para 142.

10

Supra.

11

Denyer, [1926] 2 KB 258, Hardie & Lane Ltd v Chilton, [1928] 2 KB 306, Thorne v Motor Trade Association, [1937] AC 797.

12

Smith & Hogan (1st ed), 443–444.

13

Id, 444.

14

Id.

15

Id.



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of case cannot necessarily be applied to other cases:

“Suppose, for instance, that D proposes to build a supermarket on a site so near to P's small shop as will in all probability drive P out of business. So long as D intends to build the supermarket, and the threat is not a sham for the purpose of obtaining money from P, he has a liberty to do so and also a liberty to demand money from P as the price of refraining. Clearly it is not blackmail for D to ask a reasonable (a fair valuation of the loss to D involved) sum as the price of refraining, but it seems equally clear, unlike the memoirs case and the stop list case, that D's demand does not become blackmail because he demands a wholly unreasonable sum. The entrepreneur has his victim every bit as much at his mercy as the demirep has hers but the ethics of the two situations are not quite the same, and in each case it is necessary to have regard both to law and social usage.”16

11.9

This discussion serves to remind us of the parallel case of the tort of conspiracy, where the question of motive is predominant. The proprietors of a large business may take steps which they know will result in the commercial extinction of certain rivals. They may nonetheless go ahead provided their motive (or predominant motive) is pure.17 It is well to recall Lord Wright's candid admission in Crofter Harris Tweed Co Ltd v Veitch,18 that it is practically impossible “to fix by any but the crudest distinctions the metes and bounds which divide the rightful from the wrongful use of the actor's own freedom”. A similar uncertainty attaches to the reasonableness of a demand in blackmail offences. It seems that the test applied by the courts is objective, but intuitive criteria rather than something more tangible continue to determine the outcome of the prosecutions.

11.10

Section 30 differs from section 29(1)(i) in requiring that the defendant demand, rather than utter a letter containing a demand. it is not clear whether a demand, like an uttering, can occur unilaterally or whether receipt of the demand by the intended victim is a necessary ingredient. In England, the former view has the support of the House of Lords in relation to section 21 in the Theft Act, 1968 which also refers to a “demand”.19 In Ireland, in the absence of clear judicial authority, McCutcheon argues in favour of the latter view:

“Unlike the Theft Act, 1968 the Larceny Act, 1916 employs two phrases, namely 'utters' and 'demands'. It must be assumed that the legislature had different meanings in mind when it employed those terms and to hold that a demand need not be received would be to confuse it with an uttering. Moreover, the [House of Lords] decision ... was narrow and, the interpretation of 'demand' was arrived at in an almost perfunctory


16

Id, 444–445.

17

Cf McMahon & Binchy, 574–579.

18

[1942] AC 435, at 472. See also Vegelahn v Gunter, 44 NE 1077, at 1080 (NY, per Holmes, J, 1896).

19

Treacy, [1971] AC 537.



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manner”.20

11.11

The question whether the threat must actually operate on the mind of the intended victim is also unresolved.21 There is much to be said in favour of such a requirement. One inhibition is the English decision of Moran,22 in which it was held that it is impossible to be guilty of an attempt to demand with menaces. That decision has, however, been widely criticised, and may well not impress the Irish courts:23

“This would allow [them] to hold that to constitute a menace the threat must have affected the prosecutor whilst ensuring that an accused could be convicted of an attempt where he committed a sufficiently proximate act which falls short of operating on the mind of the prosecutor”.24

11.12

As regards section 31, it appears that while it is the only provision dealing with cases involving an intent to induce a person to confer an appointment, “otherwise facts which would constitute an offence under this section will almost invariably also constitute an offence under s29(1) or s30”.25 While section 31 does not expressly require a demand, Smith & Hogan consider it “clear that conduct could constitute blackmail under this section only if it amounted to a demand”.26 Noting that section 31, unlike section 29(1)(i), does not contain an express requirement that there be an absence of reasonable and probable cause, McCutcheon comments:

“Were the section to be construed literally that omission would make the offence one of strict liability. Given the relatively light punishment which the offence attracts and its connection with libel the courts might adopt a strict interpretation. On the other hand, what scant authority there is on the matter suggests that the existence of a reasonable and probable cause, will absolve the accused ... [T]he likely effect of these decisions is to imply a defence of reasonable and probable cause into the section. However, the omission of express words to that effect might be held to impose a burden of proof on the accused”.27


20

McCutcheon, para 136.

21

Cf id, paras 138-140.

22

36 Cr App Rep 10 (1952).

23

McCutcheon, para 140.

24

Id. (footnote reference omitted).

25

Smith & Hogan (1st ed), 453.

26

Id.

27

McCutcheon, para 142 (footnote references omitted).



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CHAPTER 12: ROBBERY

12.1

A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.1 A person guilty of robbery or of an assault with intent to rob, is liable on conviction on indictment to imprisonment for life.2

12.2

The requirement that the accused steal is of some importance. It means that, in the absence of larceny, there is no robbery, though the accused may of course be guilty of an aggravated larceny and, in some circumstances, attempted robbery. So if the goods are not capable of being stolen,3 or if there be no completed taking,4 or if the accused establishes a claim of right in respect of the taking, as opposed to the means of taking the goods,5 he will not be guilty of robbery.

12.3

The requirement of the use of (or putting in fear of being subjected to) “force” replaces the former requirement of “violence”. Professor Smith (speaking of an identically drafted English provision) observes that:

“[t]he difference, if any, between the words is an elusive one, it is probable that 'force' is a slightly wider term. Thus it might be argued that simply to hold a person down is not violence but it certainly involves the use of force against the person. Force denotes any exercise of physical strength against another whereas violence seems to signify a


1

Section 5 of the Criminal Law (Jurisdiction) Act, 1976, inserting a new section 23 into the Larceny Act, 1916. See McCutcheon, paras 91–97.

2

Id.

3

Phipoe, 2 Leach 673, 168 ER 438 (1795), Edwards, 6 C & P 518, 172 ER 1346 (1934).

4

Cf Farell, 1 Leach 322n 168 ER 264 (1787).

5

Skivington, [1968] 1 QB 166.



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dynamic exercise of strength as by striking a blow.”6

In England, consistently with the present judicial reluctance to give conceptual depth to the language of the Theft Act, 1968, the parameters of “force” are deemed a matter for jury determination, based on their “common sense and knowledge of the world”.7 Whether Irish courts would favour the same approach is not clear.

12.4

Differing in an important respect from the former law, the present section requires that the use of (or seeking to put in fear of being subjected to) force must occur “immediately before or at the time of doing so”, but not at any time thereafter. Thus, clearly an effective threat to use force in an hour's time if an intended victim does not hand over property will not be robbery (though it may well be blackmail). Whether one minute's delay would be immediate would presumably be a jury question.8 There is no reason to believe that the notion of immediacy depends on the particular context in which the alleged robbery takes place. Threats by letter or telephone raise particular issues. Professor Smith contends that “... there can be no robbery or attempted robbery by letter or telephone, except in the most unlikely circumstances – for example, D telephones P that if P does not hand over certain property to E (D's innocent agent who has called at P's house) D will detonate an explosive charge under P's house”.9

12.5

It is surely correct that a telephoned threat is capable (albeit in rare circumstances) of falling within the scope of the section; but what of a threat by letter, where the threat again promises harm to the recipient of the communication immediately after he has received the communication unless he hands over property to an innocent agent? No doubt the circumstances in which such a case could arise are considerably less likely than those of telephoned threats, but the issue of principle remains. On one view, such a written threat falls within the scope of the section. Although the letter was written at some time other than “immediately before or at the time of” the theft, it does not offend language to say that the letter-writer in inducing a handover of property has, immediately before the theft, put his victim in fear of being then and there subjected to force.

Similar considerations, perhaps, apply to the case of a thief whose letter does not in fact put the reader, on reading it, in fear of being then and there subjected to force. The notion that the thief, having sent the letter, continues to seek to put his intended victim in such fear seems not unreasonable.10


6

Smith, para 143.

7

Dawson and James, 64 Cr App Rep 170, at 172 (1976). See also Clouden, [1987] Crim L Rev 56.

8

McCutcheon, para 95.

9

Smith, para 147.

10

It is worth considering whether a person who sent such a letter, and who thereafter forgot about it, or repented for having done so, before the victim read it should be considered to be seeking to put the victim in fear of being then and there subjected to force. The answer would seem to be that he should not. If this is so, then liability for sending such letters in cases of such subsequent forgetfulness or repentance would depend on the contingent element of whether the (originally intended) victim was or was not in fact put in such fear. The issue is one that is most unlikely to arise in practice, since it can only be in the most exceptional cases in which such a defendant could be guilty of larceny, which is a necessary element in the offence of robbery.



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12.6

Where force is used after the time of stealing, it does not appear capable of transforming the theft retrospectively into robbery, even where the prosecution can show that the defendant had from the outset the intention of using force at that time. This raises the important question as to the duration of “the time of” stealing. English cases11 under the equivalent provision in the Theft Act, 1968 are unhelpful on this question, since theft is there defined as an “appropriation” of property, in contrast to the elements of taking and carrying away required by section 1(1) of the Larceny Act, 1916. On one view, since sufficient taking and carrying away for commission of the offence of larceny may involve movement of a momentary duration and almost infinitesimal proportions, the crime should be considered as being over at any time after this momentary period. Thus, the use of force any time thereafter should be regarded as subsequent to, rather than at the time of, the larceny. On another, and surely more convincing view, the exact relevant words of the statute may be considered to embrace the use or threat of force during the time when it may be said that the defendant is doing the act of stealing. Thus, a person who hauls a mailbag over a post office counter no doubt has already done sufficient to be judged guilty of larceny but it would be an abuse of ordinary language to say that he does not continue to engage in the act of larceny when he drags it from the counter towards the door. Where the cutoff point should be may be a proper subject of debate; but the point is that that debate is not foreclosed merely by showing that the force occurred at some point after the earliest at which the defendant could successfully be charged with larceny.

12.7

Under former law, the courts distinguished between force used against a person, which was considered an element in the offence of robbery, and force used primarily against the item intended to be stolen, which was not. In England, the current judicial view is that these distinctions should be subsumed under the question of fact, to be determined by the jury.12 Whether this fully reflects the statutory langauge or the intentions of the Criminal Law Revision Committee13 may be debated. In Ireland, the issue is still open.

12.8

The requirement of mens rea in the offence is not clear. Although the draft section proposed by the Criminal Law Revision Committee included the word “wilfully”,14 this was not included in section 8(1) of the Theft Act, 1968, nor in our 1976 Act. Commentators15 are agreed that mens rea should be implied. Thus, McCutcheon suggests that:

“where the accused uses force to take goods but is unaware that the force would be directed against a person it is not robbery. Equally, where the accused's conduct is such that it has put a person in fear it would have to be established that the accused intended, or possibly


11

Cf, e.g., Hale, 68 Cr App Rep 415 (1978).

12

Cf Clouden, [1987] Crim L Rev 56, McCutcheon, para 92.

13

Cf the Eighth Report, para 65.

14

Section 7(1) of the draft Bill: id p102.

15

Smith, para 146, McCutcheon, para 97.



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foresaw, that his conduct would have this effect.”16

12.9

The requirement in the section that the putting or seeking to put in fear be “in order to” steal almost certainly ensures that an unintended and unforeseen putting in fear does not fall within the scope of the offence. Even without these words, the general reluctance of courts to interpret penal legislation as excluding mens rea would probably have brought about the same interpretation.

12.10

It should be noted that the section does not reach a case where a person is put in fear that someone else will then and there be subjected to force. Such a case, however, may amount to blackmail in some cases.


16

McCutcheon, para 97.



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PART II: PROPOSALS FOR REFORM OF THE SUBSTANTIVE LAW

CHAPTER 13: THE COMMISSIONS OBJECTIVES

13.1

In this Report, we will seek to achieve “a simplification and modernisation of the law” within the terms of s1 of the Law Reform Commission Act, 1975, such as was effected by the legislature following our Report on Malicious Damage.1 The basic law of larceny and fraud is adequate for most prosecutions and we would wish, while retaining what is tried and tested at the moment, to build a modern structure on a secure foundation. We do not wish to recommend the introduction of fundamental changes or new concepts where this can be avoided. A different situation faced us when we reported on Receiving Stolen Property,2 as the basic law, with particular regard to the state of mind which had to be proved, was inadequate for any receiving prosecution.

13.2

Our law of larceny and fraud today is the same as it was in pre-Theft Act (1968) England. The state of evolution of the law in England at that time is well described by Smith as follows:

“In one way or another most varieties of dishonest appropriation of the property of another were brought within the ambit of the criminal law and, with one or two exceptions, the gaps through which the dishonest might slip were narrow and did not present a serious problem. But this was at the price of tolerating an immensely and unnecessarily complicated structure, full of difficult distinctions of a purely technical character and bristling with traps for the judges, magistrates, prosecutors and police who had to administer the law.”3

13.3

The English Criminal Law Revision Committee (hereinafter the CLRC)


1

LRC No. 26 (1988).

2

LRC No. 23 (1987).

3

JC Smith, The Law of Theft 5th Ed (1984), para 2.



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in their 8th Report were “strongly of the opinion that the time has come for a new law of theft and related offences based on a fundamental reconsideration of the principles underlying this branch of the law ...”.4 They allowed that “there is room for difference of opinion on the desirability of preserving in whole or in part the basic concepts underlying some of the existing offences. In particular, two members would have preferred to keep the present definition of stealing (though not the multiplicity of separate offences of stealing) in a modified form and with additions in respect of cases of dishonesty for which it fails to provide”.5 We would be sympathetic to the approach of these two (unnamed) members.

13.4

As with our Reports on Receiving and Malicious Damage, our discussion of comparative law will be largely concerned with the law in England. The Model Penal Code of the American Law Institute has again been very instructive and the Commentary thereon an invaluable, lucid guide to good reform. The law in New Zealand, based on Sir James Stephen's Criminal Code and recently revised again in a new Bill,6 and the most recent revision of the relevant law in Australia, for the Australian Capital Territory,7 were found to be particularly instructive.

A Realistic Approach

13.5

At the time of writing, the Larceny Act, 1990 is law. The Government did not implement all the Commission's recommendations on Receiving in the legislation. In our 11th Annual Report8, we analyse the differences in approach in some detail. Essentially the Larceny Act reproduces the Theft Act formulation of the law, with certain variations in the mens rea requirement which bring the Act closer to the Commission's recommendations. The Theft Act definition of the actus reus of “handling” is reproduced. Among the reasons given to the Dail and Seanad for rejecting the Commission's preferred formula of “recklessness” as the appropriate mens rea for the offence, were (a) that recklessness was not in use for that purpose in any other country and (b) that the provision in the Bill drew on English legislation which had proved itself to be reasonably satisfactory over the course of 20 years of practical use. We do not believe that the fact that something has not been tried is a reason for not trying it and as it happens, the recent New Zealand Crimes Bill 1989 has adopted, in s197(1), a knowledge or recklessness formula for mens rea. Unlike the Theft Act, the Bill had the additional feature of defining “believing” as including “thinking that the property was probably stolen property”.9

13.6

As we said in our Report on Receiving10, subject to Constitutional and


4

Criminal Law Revision Committee's 8th Report, para 7.

5

Id.

6

Crimes Bill, 1989.

7

The Australian Capital Territory Crimes (Amendment) Ordinance (No.4) of 1985.

8

LRC Eleventh Report (1989) PI 7448, para 23.

9

Section 33(2)(b) of the 1916 Act as inserted by s3 of the 1990 Act.

10

LRC op cit para 106.



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other considerations peculiar to this jurisdiction and to the laws being effective and reasonable, it is desirable, particularly in the context of extradition, that our laws correspond closely with the laws in Northern Ireland and England. However, we do not consider it unreasonable to learn from English experience. We would not recommend the introduction of laws which the CLRC and Parliament would, very probably, no longer recommend. One commentator, DW Elliott, as long ago as 1982, said that Parliamentary reform of the Theft Act “daily grows less unlikely because of difficulties about the meaning of appropriation”.11 For example, in para 108 of the Report on Receiving, the Commission recites English criticism of the drafting of s22, with particular reference to the unnecessarily large number of ways in which the offence could be committed. The original draft is, nonetheless, perpetuated in the Larceny Act, 1990.

13.7

History would suggest that the legislature is inclined to adopt the English model when reforming the criminal law. Indeed, we recommended doing so in the context of Malicious Damage. As much of the Theft Act has worked well, worse could be done but why not do better if we can, particularly in areas where the English themselves would introduce changes in the light of 20 years' experience?

Options for the General Approach

13.8

In the Discussion Paper, we canvassed several possible broad approaches which seemed to us worthy of consideration. These were:


(1)


To make no change.


(2)


To adopt the English Theft Acts of 1968 and 1978.


(3)


To adopt the approach of the American Law Institute in the Model Penal Code.


(4)


To adopt the approach in the New Zealand Crimes Bill 1989.


(5)


To adopt the approach in the Australian Capital Territory.

13.9

While a range of options was available for each particular issue, the approach in the Australian Capital Territory was the general strategy which most appealed to us when we sent out our Discussion Paper. We will now re-examine these approaches in turn.


11

DW Elliott, Dishonesty in Theft: A Dispensable Concept [1982] Crim L Rev 402.



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CHAPTER 14: NO CHANGE

14.1

The first option is, of course, to do nothing. This has its attractions. Larceny and fraud are among the bread and butter offences in the criminal law. The law presents few problems in 90% of cases. Problems arise only when a case falls somewhere between larceny and receiving, between false pretences and obtaining credit by fraud, between larceny by a bailee and fraudulent conversion and in any instance of larceny by a trick. These problems can be solved with much thought while time elapses and justice is delayed. Time is also Garda-time, court-time, prosecution-time. Occassionally, the wrong charges are preferred.

14.2

Writing, in 1967, about the Report of the Criminal Law Revision Committee, Roy Stuart commented:

“The Report speaks of the 'difficulty and complexity' of the present law and of its 'failure to deal with certain kinds of dishonesty which ought certainly to be punishable'. Few would dispute this diagnosis entirely. Parts of the present law are undoubtedly difficult and complex. There are some cases where dishonesty goes unpunished or where, if it has been punished, at the cost of augmenting the difficulties and complexities. The field is soggy with fictions; and there has been some resultant inconsistency both among different parts of the law, and between the criminal and civil law which share some of the key terminology. Yet the system is patently workable; the cases of dishonesty unpunished (on the law's account anyway) are few; and the difficulties and complexities of a sort to irk chiefly lawyers.

The definitional changes are not the only changes proposed; yet none of the changes proposed will, it seems to me, with the possible exception of those proposed in clause 12(8), make much difference to the actual administration of the law or to the number of those subject to it. To



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rope in a few finders whose acquisitiveness kindles slowly will hardly make any big change, except to the number of articles written by academic lawyers. I cannot believe that any new types of dishonesty will be made punishable which are both widespread and important; nor indeed that any public sense of injustice at the anomalies of the present law rankles.”1

If the law can be simplified and modernised and time can be saved, why not do so?


1

Stuart, Law Reform and the Law of Theft, 30 Modern L Rev 609, at 612–613 (1967).



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CHAPTER 15: THE THEFT ACT APPROACH

15.1

The second option is to adopt the Theft Acts as they stand.

A. BACKGROUND TO THE THEFT ACTS

Origins

15.2

As Kenny points out,1 the first comprehensive definition of theft for English law was given by Bracton who borrowed it, with some modification, from Roman Law. It is “Contrectatio rei alienae fraudulenta, cum amimo furandi, invito illo domino cuius res illa fuerit” (The fraudulent handling of another man's thing, without his agreement and with the intention of stealing it). “The Latin word fraudulenta had a wide meaning in Roman Law and covered dishonest dealing of many subtle kinds involving deceit and trickery; but in the days when our common law crimes were first defined the economic relations of men were simple and the main need of society was for legal protection against crimes of physical force rather than against deceit”.2“There can, we think, be little doubt that the 'taking and carrying away' upon which our later law insists had been from the first the very core of the English idea of theft”.3 The crime of theft or larceny began as a trespass 'vi et armis' and the purpose was no more than to punish such dishonest dealing as took the violent and unmistakable form of a change of possession.


1

Kenny's Outline of the Criminal Law, (19th ed by JW Turner, 1958), para 220.

2

Id.

3

Id, citing Pollock and Maitiand II, 498.



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Consolidation

15.3

The Larceny Acts of 1861 and 1916 were essentially consolidations of a law based on taking or trespass, on interference with possession. Because of this emphasis on trespass, various accretions were introduced to deal with what was essentially conversion or usurpation of ownership in cases where possession had been already obtained. Examples are larceny by a bailee, larceny by a trick, embezzlement and fraudulent conversion. We have examined these crimes, all part of the law in Ireland today, in the earlier part of this paper.

In essence, the Theft Act, 1968 introduced a new definition of theft which replaced the former requirement of “taking” by one of appropriation, defined so that a person in possession could steal the property, and brought the former offences of larceny, embezzlement and fraudulent conversion together as one offence.

Problems Foreseen

15.4

Again, Stuart, writing about the draft Bill in 1967, showed prophetic perception and foresight:

“There is evidently a case for starting again as the Committee recommends. But the case can be exaggerated. To say, as the Committee does, that the trouble is all basically due to theft being a violation of possession rather than of ownership is a little misleading. In the first place, this complaint has nothing to do with any objection to the concept of possession as such; it would have been quite possible to insist (although the Committee does not do so) that the thief must at some time possess the property dishonestly. In the second place, the connection between the defects in the law and the fact that theft is a form of trespass is often indirect: many of the difficulties are difficulties about the definition of accretions to the theft-trespass structure rather than difficulties generated directly by the structure itself. There is nothing in the Report to show that a reconsideration of the accretions rather than of the structure would not have been equally possible. Two members of the Committee were apparently inclined to prefer this approach, which is also the approach adopted in the Model Penal Code. And the danger of an over-simplified diagnosis is that the Committee's proposals may seem to acquire undue merit merely from not being based on a violation of possession.”4

While Stuart welcomed much of the simplification achieved, he noted that, while most, if not all, of the changes could have been achieved without the radical redefinition of concepts, some of the redefinition undertaken could have been more fundamental; for instance, there was no reason why a dishonest appropriation of the rights of an owner (theft) should not include such an


4

Op cit, at 615.



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appropriation by way of acquiring ownership (obtaining by deception).

15.5

We agree, aided by hindsight. There are grounds for considering that appropriation was inadequately defined. We query whether the word “dishonesty” should have been used at all or used without being defined. We think it was a mistake to leave the interpretation of the legislation to the “ordinary” man in the street.

Maintaining Settled Law

15.6

When one “pitches” legislation at the Bench, that does not mean that one uses obscure language. It simply means that one uses terms whose meaning is well settled in law; terms that are tried and tested in Court, that are trouble-free and have pedigree. When one uses a new term, one defines it clearly and thoroughly, preferably by using 'old' terminology. Why waste all the time and effort taken in so many cases to settle certain concepts and terms only to discard them? We have no doubt, the CLRC and Parliament could have achieved their objective using tried and trusted words like “fraudulently” or “convert” or phrases like “a claim of right made in good faith”. It is not difficult to explain these words to a jury. It happens every day.

Again, Stuart writes:

“The Committee was asked to consider what alterations in the law were necessary to provide a “simpler and more effective” theft law. But no one would advocate complexity as such, nor ineffectiveness. The Report fails to define the aims of reform sharply enough: it is as if they were self-evident, which of course they are not. The American Law Institute's proposals, for example, are in some respects quite different. Nor is the subject one, apparently, to which factual evidence, except as to past judicial interpretation of the law, is relevant. Fundamental reconsideration, if any, was clearly confined to a small range of the possible issues.”5

People in general are “wise” to what they can and cannot do with the property of others and the reforms we propose are not going to make them any more or less “wise”.

B. NEW CONCEPTS

(i) Appropriation

15.7

The CLRC were “strongly of opinion”6 that larceny, embezzlement and fraudulent conversion should be replaced by a single new offence of theft. They


5

Id, at 613.

6

Eighth Report, para. 32.



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said:

“The important element of them all is undoubtedly the dishonest appropriation of another person's property – the treating of 'tuum' as 'meum'; and we think it not only logical, but right in principle, to make this the central element of the offence. In doing so the law would concentrate on what the accused dishonestly achieved or attempted to achieve and not on the means – taking or otherwise – which he used in order to do so.”7

15.8

The Committee proposed a partial definition of “appropriates”, designed primarily to indicate that this was “the familiar concept of conversion”.8 Clause 3(1) of their Draft Bill provided that:

“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.”9

15.9

The implications of this new definition for the old offences are worth noting. The Committee explained that:

“The idea of dishonest appropriation which underlies the new offence of theft corresponds ... to the idea in the words 'fraudulently converts to his own use or benefit, or the use or benefit or any other person' in the definition of fraudulent conversion under 1916 s20(1)(iv). The new offence will in fact consist of the present offence of fraudulent conversion without the requirement that the offender should, at the time of the conversion, be in possession of the property either in the circumstances mentioned in s20(1)(iv) or at all.

With the removal of this requirement the offence will extend to ordinary stealing by taking property from another's possession. The effect will be as if fraudulent conversion were widened to include the whole of larceny and embezzlement; the new offence will indeed include conduct which may not be criminal under the present law such as the dishonest appropriation by a parent of things taken and brought home by a child under the age of criminal responsibility.10

The expression 'dishonestly appropriates' in clause 1(1) means the same as 'fraudulently converts to his own use or benefit, or the use or benefit of any other person' in 1916 s20(1)(iv); but the former expression is shorter and we hope, clearer. There is an argument for keeping the


7

Id, para. 34.

8

Id. Cf Griew, para 2–48, who argues that the word 'conversion', though long used both in criminal law and in the law of tort, does not represent a single concept of settled meaning.

9

Section 3(1) of the Theft Act, 1968 includes these words.

10

Citing Walters v Lunt, 35 Cr App Rep 94 (1951).



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word 'converts' because it is well understood. But it is a lawyers' word, and those not used to legal language might naturally think that it meant changing something or exchanging property for other property. 'Appropriates' seems altogether a better word.

The offence will also cover cases of dishonest retention or disposal after an innocent acquisition .... This result is probably implicit in the concept of appropriation (or 'conversion'); but it is made explicit by the provision in clause 3(1) that a person's assumption of the rights of an owner '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'. It seems natural to regard dishonestly keeping or dealing with the property as theft (as it is now in the case of bailees). This has the advantage that the cases referred to will be brought within the single concept of dishonest appropriation. If taking were to be kept as the basis of the offence, it would be necessary to create a separate offence of dishonest retention or disposal in order to deal with these cases.”11

15.10

It seemed to the Committee natural to refer to the act of stealing in ordinary cases as “appropriation”. It was not a new word to use in this connection. Rather was it based on Stephen's suggested definition of theft.12

“To steal is unlawfully, and with intent to defraud, by taking, by embezzlement, by obtaining by false pretences, or in any other manner whatever to appropriate to the use of any person any property whatever real or personal in possession or in action, so as to deprive any other person of the advantage of any beneficial interest at law or in equity, which he may have therein.”

The concept of “appropriation” is uncertain in its scope. If “any assumption by a person of the rights of an owner” amounts to an “appropriation”, the question as to when such assumption has occurred is of cardinal importance (not least to the defendant), though the requirement13 that the dishonest appropriation be accompanied by the intention of permanently depriving the owner of the appropriated item might be said to mitigate some of the force of this criticism.

15.11

As regards the Committee's view that the concept of appropriation is the same as that of conversion, the tort of conversion is not an entirely happy precedent. The question of when an interference with another's property amounts to an assumption of the rights of owner can involve fine distinctions.14


11

Eighth Report, paras 35–36. A special exception regarding appropriation after bona fide purchase, on discovery that the seller has no title (id, para 37) is not of present relevance.

12

Stephen, General View of the Criminal Law, 129 (1863) ed.

13

Cf The English Theft Act, 1968, section 1(1).

14

Cf McMahon & Binchy, 534–538. In fact, cases under the Theft Act, 1968 have diverged from a strict identification of appropriation with conversion: cf Griew, para 2–49, Bonner, [1970] 2 All ER 97. See also Rogers v Arnott, [1960] 2 QB 244, a decision dealing with a prosecution for larceny as a bailee under the former law: of the proviso to section 1(1) of the Larceny Act, 1916 (“fraudulently converts”).



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A legitimate issue for discussion can relate to whether, for example, defacing another's book (i) always (ii) never or (iii) sometimes amounts to appropriation. On one view it always should, since only an owner has the right to do what he likes with his property. On another view it never should, since such an act ought to be regarded as essentially hostile to, rather than assertive of, an owner's rights. Moreover, it might be considered better for this type of action to be dealt with separately from theft, as constituting the offence of criminal damage.15 As regards the view that such defacing may sometimes amount to appropriation, it might be argued that where it consisted of the kinds of marks an owner would be expected to put on a book – underlining, for example, or marginal notes – it should amount to appropriation, whereas conduct essentially hostile to the right of ownership – tearing pages in two, pouring red ink over the text, for example – should be treated, not as theft, but as criminal damage. Whether this distinction could be meaningfully applied in practice may be debated.

Experience in Practice

15.12

It is useful in this context to enquire as to how the notion of appropriation has worked out in practice under England's Theft Act, 1968. The experience is less than fully satisfactory. Griew notes that.

“the explanation of 'appropriates' provided by the statute has caused more puzzlement than enlightenment; and ... the cases, as they have accumulated, have repeatedly suggested that rationalisation and consistency do not have high priority as judicial objectives in this context.”16

Another danger with the notion of appropriation is that it blurs the distinction between attempt and commission. Elliott says:

“[I]t is strongly arguable that some of the offences go too far in the direction of incorporating conduct better left to the ancillary law of attempt. Under the Theft Act, 1968, dishonest appropriation of another's property is the essence of theft. In the Model Penal Code the basic mode of theft involves the 'exercise of unlawful control over' the property of another. What was sought by the draftsman in both cases were concepts of sufficient generality to avoid the need for a string of conduct verbs: 'Taking', 'retaining', 'disposing' and the like. The ultimate issue [is] whether the behaviour of the actor constituted a negation or usurpation of the owner's dominion. But loss of precision in the definition of the parent offence lends uncertainly to the already vague boundaries of the law of attempt. And especially so where the possibility of describing D's conduct as an act of appropriation or of exercise of control depends on the assessment of his intentions in


15

As we have proposed in our Report on Criminal Damage (LRC 1988).

16

Griew, para 2–47.



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acting.”17

Elliott quotes from Griew18 as follows:

“Although an appropriation and an intention of depriving P are separate elements in the definition of theft ... it is clear that the very existence of the former will often depend upon the existence of the latter.”

Consent

15.13

A central conceptual difficulty with appropriation concerns its relationship with the notion of consent. Is it possible to appropriate another's property dishonestly with his consent? The English courts have experienced considerable problems when attempting to answer this question.19 Underlying the conceptual analysis is of course a troublesome policy issue: in what circumstances should a person who exercises control over another's property with the consent of that other be said to have appropriated it criminally where the consent either (a) has been given in ignorance of some fact which, if known, would have meant that the consent would have been refused, or (b) is implied by conduct and context rather than expressly articulated? Complicating the analysis further, it must be remembered that one cannot generally appropriate what is already one's own property. Thus, if one obtains and consumes a meal in a restaurant with the intention of paying but thereafter changes one's mind, one cannot be considered to have appropriated the food, and therefore cannot be guilty of theft.

15.14

In England, there is considerable debate as to the extent to which the notion of appropriation should have application to cases where the owner intends to transfer ownership to the other party, however fraudulent the other party may have been in inducing this transfer. The Criminal Law Revision Committee intended that their proposed offence of deception, but not theft, should embrace cases where the defendant acquired the entire proprietary interest in the property; but the Courts have interpreted the Theft Act, 1968 differently.

The issue is far from academic: modern modes of consumer sale, especially in supermarkets, can give rise to difficult problems. The vendor is willing to allow prospective purchasers handle products, put them in trolleys, move them around the store and return them to the shelves or even abandon them elsewhere, provided they pay for the products before they leave the store. While some stores make it difficult to leave without having passed through the checkout, others are more casual. In some stores prospective purchasers may find it difficult to know where they are meant to pay for the goods, and may have to engage in extended search before finding a sales point with a sales assistant apparently ready to transact business on behalf of the store.


17

Elliott, Theft and Related Problems – England, Australia and the USA Compared, 26 Int & Comp LQ 110, at 113–114 (1977).

18

2nd ed, 1974, para 2–25.

19

Contrast Lawrence, [1972] AC 626 with Morris, [1983] 3 All ER 288; and see Smith, paras 30–40.



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The policy of some stores of assisting purchasers remove the goods they have brought to their car has tended to blur the moment at which the sale may be considered to have been finally consummated. Moreover, the liberal policy of some stores in accepting back goods purchased and in giving a cash refund (or exchange of goods) with no enquiry as to why the purchaser has changed his or her mind may have contributed to a feeling of lack of finality about sales transactions.

Some Cases: A. Irish Cases

15.15

In Morrissey,20 an Irish case, a customer in a supermarket having been given meat at the meat counter, put it in his shoulder-bag and left the supermarket without presenting it and paying for it at the check-out. It was held by Gannon J following the English case of Martin v Puttick,21 that, in the absence of evidence to the contrary, the only necessary inference from the giving of the meat to the defendant was that he was required to show the meat and pay the price before leaving and that he had accpeted it with this knowledge. It followed that, in the absence of evidence to the contrary, the only necessary inference was that upon his leaving the shop without his disclosing his possession of the meat and without paying for it, the defendant at the time of leaving, if not at the time of receiving the meat, had the intention of depriving the owner of it and that he had obtained it fraudulently and without the consent of the owner.

15.16

In Keating,22 another Irish case, the respondent, with others took dresses and suits from the rails in a store, rolled them up, put them in a bag and having passed four check-out points without paying was making for the exit when approached by a security guard. He dropped the bag. It was held by Lynch J that where, on the evidence, the conduct of the accused shows a fraudulent intention which is not susceptible of a plausible explanation then the offence of larceny has been committed even before the accused leaves the shop premises.

B. English Cases
(a) The facts

15.17

In Lawrence,23 an Italian newly arrived in London gave £1 to a taxi driver for a fare which in fact came to 10s3d. The taxi driver said £1 was not enough and without any objection from the Italian, took a further £6 from his wallet.

In Morris,24 a person took goods from the shelf in a self-service store and substituted a label showing a lower price for the original label.


20

[1982] ILRM 487.

21

[1989] ILRM 561.

22

[1968] 1 QB 82.

23

[1972] AC 626.

24

[1983] 3 All ER 288.



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In Kaur,25 a customer took a pair of shoes, each marked with a different price when she came upon them, to a supermarket cashier hoping to buy them at the lower price which she knew to be the wrong price.

In Philippou,26 the appellant and his partner, the sole directors and shareholders of a company, drew money from the company to buy a block of flats in Spain which was put into a Spanish company of which they were also the sole directors and shareholders.

In Dobson v General Accident Fire and Life Assurance Corp plc27 the plaintiff advertised a watch and ring for sale and agreed on the telephone to sell them to a person for an agreed price to be paid by means of a building society cheque. The person subsequently called, collected the watch and ring and gave in exchange a building society cheque for the agreed price which bounced. The Plaintiff claimed the value of the articles from the defendant insurance company on the basis that his policy covered theft.

In Gomez28, the appellant who was the assistant manager of a store, in concert with a customer induced the manager to accept stolen cheques for goods, representing them to be as good as cash.

15.18

In considering the English cases is always important to remember that appropriation simpliciter is not theft. Only dishonest appropriation of property belonging to another is theft.

(b) The Decisions

15.19

In Lawrence, it was decided that the taxi driver was guilty both of theft and of obtaining by deception i.e. that there could be dishonest appropriation when the victim consented to part with the property.

15.20

In Morris, the Court of Appeal held that the very act of removing an article from a supermarket shelf, an act to which the owner consented, was an assumption of the rights of the owner and an appropriation. It was theft because of the dishonest intention of the remover. The House of Lords held that this was incorrect and that for a theft there had to be an act which was unauthorised e.g. like switching the price tags. It was also held to be irrelevant and no defence that property passed under a voidable contract. In Lawrence, it had been expressly decided that there could be appropriation with consent and that the old Larceny Act phrase “without the consent of the owner” was not to be read into s1(1) of the Theft Act. Was Morris overruling Lawrence on this point? No Law Lord in either case suggested that fraud or deception might vitiate consent.


25

[1981] 2 All ER 430.

26

[1989] Crim L Rev 585.

27

[1989] 3 All ER 927.

28

[1991] 4 All ER 394.



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15.21

Kaur was decided before Lawrence and the accused was acquitted by the Divisional Court. In that case the store had mixed up its own labels and the accused had knowingly taken advantage of the situation but had neither done anything illegal or unauthorised “off her own bat” nor engaged in any deception. Unfortunately, Lord Roskill in Morris said “he was disposed to agree that”Kaur had been wrongly decided, presumably on the basis that the knowing presentation of wrongly labelled goods constituted theft. Lord Lane in Morris also repented his judgment in Kaur. Glanville Williams writes–“Lord Lane's own wise remark in Kaur that 'the court should be astute not to find theft where it would be straining the language' had ceased to seem convincing to him.”29

15.22

The decisions in Philippou and Dobson represent a swing back to the Lawrence doctrine. In Philippou, it was held, rather doubtfully in the context of theft, that the directors had appropriated from the company notwithstanding the fact that no absence of consent could be proved. The Court of Appeal followed Lawrence and said it was “obvious” that the House of Lords in Morris was not inserting into the definition of theft the words “without the consent of the owner”.

15.23

Dobson, a decision of the Civil Division of the Court of Appeal, reconciles Lawrence and Morris as best it can. The Court held (1) that the property in the watch and ring was not intended to pass before a valid building society cheque was given to the plaintiff. The time of delivery was also the time of the appropriation and accordingly, the watch and ring were the property of another (the plaintiff) at the time they were appropriated. (2) For the purposes of s1(1) of the 1968 Act appropriation could occur even if the owner consented to the property being taken. It was irrelevant (Morris) that the property might have passed with a voidable title. There was a plain interference with or usurpation of the plaintiff's rights. It made no difference that an offence under s15 was also committed. Lord Justice Bingham decided “Just as it is enough to satisfy s15 that the goods belong to the victim up to the time of obtaining, so it is enough for the plaintiff that the watch and ring belonged to him up to the time of appropriation.”

15.24

One might have hoped that the Dobson and Philippon decisions were the start of a more comprehensible trend but the Court of Appeal in Gomez decided they could not follow the lead of their colleagues on the Civil Court in Dobson. They felt constrained, not without communicating a sense of discomfort, to apply the Morris decision and quashed the appellants conviction for theft, remarking that he should have been charged with obtaining by deception. As Griew says –“The law is in truth in an appalling condition because of the incoherence of the cases”.30


29

Glanville Williams, Textbook of Criminal Law (2nd Ed) 819.

30

Griew, p53.



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The Struggle for Reconciliation

15.25

Against a changing economic background, the courts have been struggling to adapt concepts (such as taking, appropriation, the passing of property and express and implied consent) so as to ensure that the conduct of dishonest persons in stores falls within the scope of the law of theft and related offences. At times the judicial resolution of the problem has been less than fully convincing. Inevitably the question of the mens rea of the accused has been allowed to seep into the analysis of the actus reus. Thus, for example, in Morris31 where the question was whether switching a cheaper label for the label attached constituted theft of the dearer product, Lord Roskill observed that, while such unauthorised switching may be an appropriation, it is not always such:

“[I]f a shopper with some perverted sense of humour, intending only to create confusion and nothing more, both for the supermarket and for other shoppers, switches labels, I do not think that the act of label-switching alone is without more an appropriation, though it is not difficult to envisage some cases of dishonest label-switching which could be.”

15.26

On one view, it may be argued that it is better to treat all dishonest conduct occurring before the conventional “moment of sale”– at the checkout in most grocery stores – as constituting a crime of attempt rather than the completed crime of theft. An advantage of this approach is that it gives effect to the policy of the store in allowing, if not a locus poenitentiae, at least an opportunity to change one's mind before committing oneself finally to purchase any product. Moreover, in ordinary parlance, some might find it unconvincing to say of a label-switcher or a person who has put a product in his own bag rather than that supplied by the supermarket that he has already stolen the item. We would not agree. Whatever about the reasoning, we think the ultimate decisions in Lawrence, Morris, Kaur and Dobson and in the Irish cases of Morrissey and Keating were correct and that, once appropriation is defined so as to include obtaining by fraud, it will be clear when an unlawful appropriation has taken place, however effected.

15.27

Professor Smith would not agree. In the comment on Philippou he says:

Morris, whatever its flaws, did seem to offer an escape from the old weary round of cases adopting whatever meaning of theft would lead to the conviction of the particular dishonest defendant before the court, with obviously disastrous effects on the consistency and clarity of the law. The criminal law has suffered from this approach for at least 150 years. It was the primary reason why the law of larceny in 1968 was in such a mess and it continued after the Theft Act. Meech,32Skipp33


31

[1983] 3 All ER at 293. Cf Smith, para 34.

32

[1973] 3 All ER 939.

33

[1975] Crim L Rev 114.



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and Hircock34 were all cases where the Morris interpretation was necessary to uphold a conviction. Lawrence, or so it was thought, required the opposite interpretation in order to convict. The present case suggests we may be falling back into the bad old ways. If it goes higher, please, House of Lords, stick to principle and do not pretend that the irreconcilable can be reconciled.”35

(ii) Dishonesty

15.28

The Theft Act substituted a test of “dishonesty” for the Larceny Act requirement that the act must have been done “fraudulently”, “without a claim of right made in good faith”. This was done on the recommendation of the CLRC who wanted to substitute a familiar concept, a word easy to understand, for lawyers' words like “fraudulently”. Dishonesty in not explicitly defined but a list of instances of “honesty” is given instead.

15.29

2. “Dishonestly


(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 of himself or of a third person; or


(b)


if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or


(c)


(except where the property came to him as 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.”

As a result of this use of ordinary language undefined, there has been as Elliott36 says a “string” of appellate decisions on the meaning of dishonesty since 1968. The judges, “unable to leave the subject alone” had made “a rod for their own backs”.37


34

[1979] Crim L Rev 184.

35

[1989] Crim L Rev 588.

36

Elliott, Dishonesty in Theft: A Dispensable Concept, [1982] Crim LR 395.

37

Id.



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The Standard to be Applied

15.30

The judges started by treating the concept as one of law to be interpreted by the Court but by 1973, in Feely38 it was decided that “jurors when deciding whether an appropriation was dishonest... should apply the current standards of ordinary decent folk”.39

Out of this doctrine began to grow “an unwelcome excrescence”40 i.e. that the defendant's own judgment of the honesty of his conduct was the operative one. Finally, in Ghosh,41 it was decided that for a finding of dishonesty there should be affirmative answers to two questions:


(1)


Was what was done dishonest according to the ordinary standards of reasonable and honest people?


(2)


Must the accused have realised that what he was doing was dishonest according to those standards?

Both Feely and Ghosh assume that ordinary decent people will readily agree on standards.

Do the ordinary standards of decent people include making allowances for the subjective perceptions of the accused? Is this not a decent quality? After Ghosh, the accused can no longer set his own standards but the test is still subjective in that it depends on what the accused perceived ordinary standards to be. The test does not depend on any perception of what is in fact lawful.

Salvo

15.31

This subjective and 'amateur' approach to dishonesty sustained a withering attack from the majority of the Supreme Court in Victoria in Salvo.42 The judgment preceded that in Ghosh and the fire was directed, in particular, at the Feely judgement. Much of the judgement of Fulager J in that case is peculiarly relevant, salutary and instructive to anyone contemplating reform of the Larceny Act. The Victorian legislation had reproduced the Theft Act provisions with few variations and it was intended, as we would intend to recommend, that a number of old common law offences, including larceny should be replaced by a new and short code. Fulager J in Salvo agrees with a comment on the new Victorian code which says that “its deceptively simple language conceals a host of difficulties”43 and says “this commonly occurs when it is attempted to deal with coherent common law principles of substantial complexity by substituting a very compendious code. It was said in England that the legislation there, by the Theft Act, 'intended to sweep away all the learning which over the centuries had


38

[1973] Q.B. 530.

39

Id at p537.

40

Elliott op cit, at 397.

41

[1982] QB 1053.

42

[1980] VR 401.

43

Editorial Comment in (1974) 9 MULR at p498.



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gathered round the common law concept of larceny,' but I cannot myself accept that either it or the Victorian legislature had so pointlessly destructive an intention”.44

The CLRC recommendation to replace “fraudulently and without a claim of right made in good faith” with “dishonesty” on the basis that “dishonesty is something which laymen can easily recognise when they see it” is identified by Fulager J as the “fons et origo malorum”.45 He quotes Blackstone with approval when he warned against the notion that a judge in a court of law should decide each case in the way that he thinks morally right or just, without founding his decisions on known legal principles: “The liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law and leave the decision of every question entirely in the breast of the judge. And law without equity though hard and disagreeable is much more desirable for the public good than equity without law which would make every judge a legislator and introduce most infinite confusion.”46

15.32

We agree. To by-pass the judge and leave the definition of fundamental legal concepts to the jury would be an unwarranted exercise in misguided populism. There must be as many different potential definitions of dishonesty as there are differences in age, social status, nationality, moral outlook and nature. Various such as “being at variance with straightforward or honourable dealing”, “incurring moral obloquy” or the familiar, “without claim of right” usually arise in discussion. There is no guarantee either that judges will agree on a definition. The law must be clearly defined for the judges who will in turn, define it for juries. Griew sums up the practical objections to the post-Theft Act evolution of the law in England as follows:

Feely and Ghosh, ... provide two bases upon which it may be worth a defendant's while to take his chance with a jury. he may advance a 'state of mind' which would before Feely have offered no defence at all. Or he may claim not to have realised that others would condemn his actions. Such claims must multiply and lengthen trials; and it must be in the interests of some defendants to introduce as much evidence as possible on the dishonesty issue in order to obfuscate it. The consequences in terms of expense and of increased difficulty for the jury, not to speak of the danger of unsatisfactory outcomes, are surely enough in themselves to raise serious doubts about the present state of the law.”47

15.33

As Fulager J says, “it is contrary to the most fundamental tenets and traditions of the common law and of the English judicial system itself that the judges of the courts of law should set themselves up or allow themselves to be


44

Salvo at p424.

45

Id, at p429.

46

Blackstone's Commentaries, Book 1, p62.

47

Griew, para 2.112, footnote references omitted.



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set up as the judges of morals or of moral standards. The public respect for the Courts, upon which the Courts' authority and existence ultimately depend is held because they decide cases according to known legal principles. It is equally important that the principles applied be legal principles and known principles. Feelings and intuitions as to what constitutes dishonesty and even as to what dishonesty means must vary greatly from jury to jury and from judge to judge and from magistrate to magistrate”.48

15.34

Most commentators agree that it was a mistake to introduce dishonesty undefined, and consign it to the jury for definition. All are agreed that the essential ingredient to be maintained is that contained in the Larceny Act, namely the requirement that the act be “without a claim of right made in good faith”. It is also agreed that “fraudulently” in the Larceny Act added nothing to the basic definition not covered by the former phrase. Indeed to quote from the title of DW Elliott's article on the topic, dishonesty is a “dispensable concept”,49 once one has in place a claim of right provision. We provisionally recommended the preservation of the claim of legal right test in the Discussion Paper.

The Elliott Formula

15.35

However, commentators also suggest that a simple claim of right provision on its own needs to be alleviated in case it is too “hard and disagreeable” to use Blackstone's words.

Elliott suggests that having dropped “dishonesty” and provided for a claim of right, the following formula should be used:

“No appropriation of property belonging to another which is not detrimental to the interests of the other in a significant practical way shall amount to theft of the property.”50

Thus short-term borrowings of money where there is no doubt the money will be replaced by other money before the money is missed would not be captured. Only actions causing practical detriment or significant risk to proprietary interest would be captured.

The judge should advise the jury both what amounts to a claim of right and to significant detriment. It would be inadvisable to leave the definition of these concepts to a jury.

There may be a fear that leaving the concept of significant detriment at large may afford too tempting an avenue of 'escape' to a court or even to a jury properly charged looking for a 'way out' in an awkward case. In a perfect world, this concept would come to be defined as the lowest form of minor offence. We are


48

R v Salvo supra at 430.

49

[1882] Crim L Rev 395.

50

Id at 410.



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surviving without it and with prosecutorial discretion at the moment.

In our Discussion Paper, we provisionally recommended the adoption of the Elliott formula.

Consultation

15.36

Consultation revealed significant opposition to this option. After further reflection we have concluded that it would not be advisable to adopt it. Two difficulties in particular may be noted. First the concept of significant detriment is so lacking in specificity as to give rise to doubts about its constitutionality. “Significance” is a most uncertain measure. It is, moreover, contextual: what is significant for a poor victim may have no significance for a rich one. Secondly, there would appear to be dangers in defining an offence so strikingly in terms of the contingent effects of the accused's conduct. Troublesome questions of mens rea would have to be confronted in relation to cases where the accused had no reason to know that the appropriation would be detrimental to the interests of the victim in a significant practical way. Accordingly we do not propose that this limitation be incorporated into the legislation.

15.37

Our proposal that dishonesty be defined in terms of the absence of a claim of legal right received general support, but some criticism. It was suggested that the parameters of dishonesty are not identical with those of a claim of legal right: not every act done without such a claim is necessarily dishonest, nor, it might also be observed, does the presence of such a claim inevitably render the act an honest one.

15.38

We accept that dishonesty and the absence of a claim of legal right are not identical, but we nonetheless continue to see merit in the definitional strategy which we proposed. In any prosecution for theft, the jury will necessarily address, in its deliberations, the question of the relevance of dishonesty to the guilt of the accused. Under present law, they must convict the accused if he had not a claim of legal right, regardless of the question of his honesty or dishonesty. This is the effect of judicial interpretation of the “fraudulently”, in section 1 of the Larceny Act, 1916. Under our proposal, the legislative provision will confront the question in direct language, and make it clear to the jury that it is not permissible to acquit the accused where it is satisfied beyond reasonable doubt that he appropriated the property without a claim of legal right.

15.39

Accordingly, we recommend that dishonesty should be defined in terms of the absence of a claim of legal right.



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CHAPTER 16: THE LAW IN NEW ZEALAND

16.1

In New Zealand, Sir James Stephen's Draft Code is at present embodied in the Crimes Act, 1961. In a letter to the Criminal Law Review in 1982, Frank X Quin, Legal Adviser to the New Zealand Police, pointed out that, although the law of theft in New Zealand was far from perfect, the fact that it concentrated on proprietary interests and maintained integrity by recognising and applying the civil law of property placed the law on a “reasonably clear and workable footing” and that any new law of theft in New Zealand ought not to be “a slavish adherence to the English lead” in the light of experience of the Theft Act, 1968.1 As set out by Quin, the following were the fundamental reforms achieved by Stephen –


(1)


An extension of liability for “common theft” beyond a trespassory taking so as to include a conversion of a thing innocently acquired. By s220 (1) of the Crimes Act, 1961, “theft or stealing is the act of fraudulently ... taking, or fraudulently ... converting to the use of any person ... anything capable of being stolen” with the requisite intent.


(2)


An exclusion from the definition of theft of the common law's larceny by a trick. Thus s220 (2) provides that “... the term 'taking' does not include obtaining property in or possession of anything with the consent of the person from whom it was obtained, although that consent may have been induced by a false pretence; but a subsequent conversion of anything of which possession only is so obtained may be theft.” (Emphasis added).


(3)


An extension of the crime of obtaining by false pretences to embrace


1

[1982] Crim L Rev 388.



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conduct hitherto dealt with as larceny by a trick. Thus by s246 (2) of the Act, obtaining by false pretences is committed by the person who, with intent to defraud, “obtains possession of or title to anything capable of being stolen...” etc.

16.2

So, apart from larceny by a trick, all larceny and embezzlement become fraudulent conversion and obtaining by false pretences “takes over” larceny by a trick.

16.3

Stephen advocated the abolition of the distinction between larceny, embezzlement and obtaining by false pretences:

“The technicalities on this subject appear to me to be altogether superfluous and I think they might be easily dispensed with by redefining the offence of theft, or even by removing the distinction between theft, embezzlement and false pretences.”2

As Quin says:

“One suspects however that he tempered reformatory zeal with a pragmatic perception of an ingrained resistance to change, and strove to achieve a workable compromise.”3

Theft

16.4

In the Crimes Bill 1989 recently introduced in New Zealand, we now find the following definition of theft itself.

Theft or stealing


(1)


Theft or stealing is the act of –


(a)


Dishonestly taking any property; or


(b)


Dishonestly assuming any right of ownership of any property after obtaining possession or control of the property in whatever manner, –

with intent to deprive any owner permanently of that property or being reckless whether or not the act deprives any owner permanently of the property.


(2)


In this section the term “taking” does not include obtaining property in, or possession or control of, any thing with the consent of the person from whom it is obtained through a false pretence.


(3)


Where theft is committed by a taking, the offence is committed


2

Stephen, A Digest of the Criminal Law 6th Ed, Note XI, p432.

3

Quin, op cit, at 389.



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when the offender moves the property or causes it to be moved.

Theft by failure to account


(1)


Every person commits theft who, having received or been put in possession of any property on terms or in circumstances that the person knows require him or her to account to any other person for the property or for the whole or any part of the proceeds arising from the property, –


(a)


Dishonestly assumes any right of ownership of the property; or


(b)


Dishonestly fails to account to that other person as so required.


(2)


This section applies whether or not the person was required to deliver over in specie the property received or put into his or her possession.


(3)


It is a question of law whether the circumstances were such as to require the person to account to any other person for the property received or put into his or her possession or for the whole or any part of the proceeds arising from the property.”

16.5

Property, ownership and dishonesty are defined. Section 176 defines “property” as including “all things, animate or inanimate, in which any person has any interest or over which any person has any claim; and also includes money and things in action.”

16.6

As regards matters of ownership, section 177 provides as follows:


(1)


For the purposes of this Part of this Act, a person is to be regarded as the owner of any property that is stolen if, at the time of the theft, that person has –


(a)


Possession or control of the property; or


(b)


Any interest in the property; or


(c)


The right to take possession or control of the property.


(2)


An owner of any property may be guilty of theft against another owner of that property.


(3)


A person may be guilty of theft against his or her spouse even though they are living together.”

16.7

Section 178 addresses the meaning of dishonesty as follows:



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“For the purposes of this Part of this Act, a person dishonestly does any act or dishonestly omits to do any act in each of the following circumstances:


(a)


In respect of any act or omission requiring the authority of any other person and for which that authority has not in fact been given, where he or she –


(i)


Knows that no such authority has been given; or


(ii)


Does not believe that any such authority has been given, –


(b)


In respect of any act or omission requiring the authority of any person and for which that authority has in fact been given, where he or she knows or suspects that the authority has been obtained through any deception:


(c)


In respect of any act or omission, or the continuation of any state of affairs, requiring the authority of any other person to whom he or she owes a fiduciary duty and for which that authority has in fact been given, where he or she has, in breach of that duty, knowingly or recklessly failed to disclose to that other person any material particular that might have caused that other person to refuse to give or to revoke that authority:


(d)


In respect of any representation or statement that is false in any material particular, whether made orally or in writing, where he or she –


(i)


Knows the statement or representation is false in that material particular; or


(ii)


Does not believe the statement or representation is true in that material particular; or


(iii)


Is reckless as to whether the statement or representation is true or false in that material particular.”

An Improvement?

16.8

What has the Bill achieved? In the explanatory notes, it is acknowledged that the change from “fraudulently” to “dishonesty”, fully defined, is “not significant in that the New Zealand courts tend to use the words

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interchangeably”.4 The new definition seeks to disallow a defence based on a subjective view of what is right or wrong, a commendable objective which the claim of right provision in the Larceny Act continues effectively to achieve while affording an “escape” in proper cases. Other amendments seek to simplify the present law. It is to be noted that in s179, the essence of theft is a dishonest taking or keeping of property intending to deprive the owner permanently of it or being reckless whether or not he is so deprived.

16.9

S180 seems unnecessarily to preserve an embezzlement/fraudulent conversion offence.

16.10

It is to be noted also that obtaining by fraud has to be specifically excluded from theft, a definition under which it naturally falls.

Fraud

16.11

The fraud offence is:

Obtaining by false pretence


(1)


Every person is guilty of obtaining by false pretence who, by any false pretence, –


(a)


Obtains any property, or any privilege, benefit, service, pecuniary advantage, or valuable consideration, directly or indirectly for himself or herself or for any other person; or


(b)


In incurring any debt or liability, obtains credit; or


(c)


Induces any other person to deliver over, execute, make, accept, endorse, or alter any document or thing capable of being used to derive a pecuniary advantage.


(2)


In this section “false pretence” means any words or conduct intended to deceive any person or in respect of which the person using the words or engaging in the conduct is reckless whether the words or conduct deceive any person or not.”

It is to be noted that,


(a)


The words “false pretence” are retained;


(b)


The obtaining of property, services, pecuniary advantage or anything else advantageous is rolled into one paragraph;


(c)


The old form of obtaining credit by fraud is found in s192(1)(b).


4

Explanatory notes on Crimes Bill 1990, pXXII citing R v Cambridge [1976] 2 NZLR 381; R v Williams [1985] 1 NZLR 294.



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CHAPTER 17: THE AUSTRALIAN APPROACH

17.1

Australian Capital Territory Crimes (Amendment) Ordinance (No. 4) of 1985, hereinafter referred to as “the Ordinance”, was part of the ongoing review of the criminal laws of the Territory and contains a comprehensive review of all the property related offences in the Crimes Act, 1900 (NSW) in its application to the Australian Capital Territory (Crimes Act, 1900).

17.2

The Explanatory Statement which accompanied the ordinance said that its purpose was:

“to simplify the laws relating to larceny and associated offences enabling the Courts to focus attention on the basic question of honesty or dishonesty instead of on technical questions such as a precise legal analysis of the manner in which property came into the hands of the accused. It is designed to reflect the commercial realities of the 20th century.”1

17.3

While the Ordinance is based on the English Theft Acts and the Victorian Crimes (Theft) Act of 1973, based in its turn on the English legislation, it made certain “departures” from that legislation. It took account of recent decisions, in particular the decision in Lawrence adapted in Australia by Gobbo J in Heddick v Dike.2 As a result, the offences of theft and obtaining by deception are merged in the definition of appropriation found in s96(1):


(1)


For the purposes of this Part, a person shall be taken to have appropriated property if:


1

ACT Ordinance, Explanatory Statement (No.44 of 1985) p1.

2

(1981) 3 A Crim R 139.



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(a)


he or she obtains by deception the ownership, possession or control of the property for herself or himself or for any other person; or


(b)


he or she adversely interferes with or usurps any of the rights of an owner of the property.”

17.4

Stealing is defined in s94:

“For the purposes of this Part, a person shall be taken to steal if he or she dishonestly appropriates property belonging to another person with the intention of permanently depriving that other person of that property.”

The Explanatory Statement says that “as simplification is one of the aims of the reforms it is not considered desirable to have two overlapping offences”.3

The use of “adversely interfere” and “usurps” in 96(1)(b) rather than “assumption”, used in the Theft Act is to be noted. The legislators obviously did not confine their research to the Lawrence decision.

17.5

We were rather surprised to note that the Australian Capital Territory Ordinance maintained the Theft Act approach to dishonesty. Section 96 provides in part:


(3)


For the purposes of this Part, a person may be taken to dishonestly appropriate property belonging to another person notwithstanding that the first-mentioned person is willing to pay for the property.


(4)


For the purposes of this Part, the appropriation by a person of property belonging to another person shall not be regarded as dishonest if:


(a)


he or she appropriates the property in the belief that he or she has a lawful right to deprive the other person of the property on behalf of himself or herself or of a third person;


(b)


he or she appropriates the property in the belief that the appropriation will not thereby cause any significant practical detriment to the interests of the person to whom the property belongs in relation to that property;


3

Op cit p3.



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(c)


he or she appropriates the property in the belief that the other person would consent to the appropriation if the other person knew of it and of the circumstances in which it was done; or


(d)


in the case of property other than property held by the person as trustee or personal representative – he or she appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.


(5)


Where a person acting in good faith believes himself or herself to be acquiring a right or interest in property that is or purports to be transferred for value to him or her, no later adverse interference with or usurpation of the rights in the property by the person shall, by reason of any defect in the title of the transferor, be taken to be a dishonest appropriation of the property.”

We note the Elliott-type formula in section 96(4)(b).

17.6

The Ordinance adopts the concept of “community standard”:

“In this Ordinance, the word “dishonestly” connotes a community standard consciously understood and consciously departed from. It is used in a special sense and hence a judge must direct the jury as to what it must find before it is satisfied as to the accused's dishonesty on the particular circumstances of the case. If the accused's conduct did not amount to dishonesty by community standards then he is entitled to be acquitted. The accused's belief as to dishonesty only becomes relevant if by community standards his conduct could be regarded as dishonesty.

Finally, if the belief of the accused is in issue the Crown must negative the exculpatory belief on the criminal standard of proof “beyond reasonable doubt”.4

Salvo cannot have passed unknown over the legislators' heads. They must have preferred not to follow it.


4

ACT Ordinance, Explanatory Statement op cit p8.



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CHAPTER 18: LARCENY AS EXERCISING UNLAWFUL CONTROL OVER PROPERTY (THE MODEL PENAL CODE)

18.1

We now must consider whether the notion of “unlawful” control would be preferable to “unlawful appropriation”. This approach is favoured by the American Law Institute. Section 223.2 of the Model Penal Code provides in part that a person is guilty of theft if he “unlawfully takes, or exercises unlawful control over”, movable property of another “with purpose to deprive him thereof”. A comment supporting section 223.2 explains:

“This description of the behaviour constituting theft of the larceny-embezzlement type replaces the common-law larceny requirements of 'caption' and 'asportation'. 'Caption', or taking occurred when the actor secured dominion over the property of another; an 'asportation', or carrying away of the other's property. Also replaced by the Model Code formulation are the many terms added by legislation – e.g., 'steal', 'take', 'remove', 'carry away', 'receive', 'secrete', 'conceal', 'withhold', 'retain' 'fail or refuse to pay', 'appropriate',1 'convert', 'embezzle', 'misapply', 'sell', 'convey', 'transfer', 'dispose', 'pledge', 'use', 'purloin', and the like. Most of these terms do no more than illustrate various means of exercising unlawful control. Some of the terms, such as 'steal' and 'embezzle', do not define the acts necessary to constitute a crime but depend for their meaning upon reference to pre-existing law.

The common-law larceny requirement of physical seizure and movement were satisfied by a slight change in position of the object of the theft. If the defendant's behaviour fell somewhat short of these requirements, as where a pickpocket grasped but had not yet moved the victim's purse, he was guilty of attempt only. Since larceny was generally a felony and


1

This rejection of the concept finding favour in England's Theft Act, 1968 is worth noting.



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attempt a misdemeanour, important differences in procedure and punishment turned on the criminologically insignificant fact of slight movement of the object of the theft. Under section 5.01 of the Model Code, and in modern criminal law generally, differences in penal consequences between attempt and completed crime are minimized, so that it becomes less important where the line is drawn between them. It is clear, moreover, that similar penalties for the attempt and the completed offence make obsolete any reference to the concept of 'asportation'; the same penal consequences follow whether or not 'asportation' has occurred.”2

18.2

The comment goes on to explain that the abandonment of the requirement of asportation:

“does not eliminate the necessity of defining the point at which the offence of theft is completed. The words 'unlawfully takes' have been chosen to cover the assumption of physical possession or control without consent or authority, which, as noted, includes the typical common-law category of larceny. The language 'exercise unlawful control' applies at the moment the custodian of property begins to use it in a manner beyond his authority and this includes the typical embezzlement situation. The word 'unlawful' in each instance implies the lack of consent or authority and specifically the absence of any defence under section 2.11, section 223.1(3), or Article 3. These concepts accurately describe the kind of conduct that should be treated as theft, as well as the objectives which should support conviction for attempt. They are simple, which has importance in the context of jury trials, and they are flexible, which is important in their application to the diversity of situations that arise in a modern economy.

Traditionally, larceny required a trespassory taking, whereas embezzlement involved a misappropriation by one in lawful possession. This distinction is no longer significant under the formulation in subsection (1). The typical charge under the Model Code provision should specify that the actor unlawfully took or exercised unlawful control over the property of another with the requisite purpose, thus making the method of exercising control relevant only to the extent that it sheds light on the authority of the actor to behave as he did. Apart from the requirement of a purpose to deprive another of his property, the critical inquiry is thus twofold: whether the actor had control of the property no matter how he got it, and whether the actor's acquisition or use of the property was authorized.”3

18.3

Some may see considerable merit in the notion of exercising “unlawful control” over movable property. It may be considered a good deal more concrete


2

Model Penal Code and Commentaries, p164.

3

Id, pp 165–166.



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in its connotations than the notion of “appropriation”. As against this, it could perhaps be argued that this concreteness is more apparent than real. The fact that there can be cases where a defendant exercises physical control over such property may encourage the perception of the entire concept as being concrete rather than abstract. Yet once one moves from physical control, does the scope of the concept, perhaps, become uncertain.?

18.4

We think not. The concept of non-physical control presented us with no conceptual problem when we reported on Receiving Stolen Goods and we would not consider any overlap with the offence of handling a problem. We will include the concept of exercising control in our recommended definition of appropriation in due course.



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CHAPTER 19: INTENTION PERMANENTLY TO DEPRIVE

19.1

We now must consider whether, as a general proposition, the offence of theft should require an intention permanently to deprive the owner of the property that has been taken or otherwise appropriated.1 As we have seen, this is an element of the offence of larceny under present law.

19.2

One approach to reform would be to make, at least, the more serious cases of temporary deprivation constitute the offence of larceny or, perhaps, a separate offence with an identical or virtually identical penalty. As the English Criminal Law Revision Committee observed:

“There is certainly a case for making temporary deprivation punishable in circumstances in which it may involve dishonesty comparable with that involved in theft and may cause serious loss or hardship. The taker gets the benefit of the property without payment, and the owner is correspondingly deprived. The property may be lost or damaged, or it may be useless to the owner by the time it is returned.”2

19.3

The Committee did not accept this argument, however, being of the view that an intention to return the property, even after a long time, “makes the conduct essentially different from stealing”.3 We query this. In the more serious cases, the taker virtually treats the property as his own, the essence of theft.

19.4

The Committee went on to make a second objection to the proposed


1

In England, the question whether temporary deprivation should be criminal “attracted more attention than any other issue, both in and out of Parliament,” during the passage of the Theft Act, 1968: Smith, para 265.

2

Eighth Report, para 56. The Committee also noted the argument that if, as they proposed, the general offence of deception covered cases of temporary deprivation, theft should similarly do so.

3

Eighth Report, para 56. See also the strong case made by Williams, Temporary Appropriation Should Be Theft, [1981] Crim L Rev 129.



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change, which in our view, again, lacks substantial force. They were concerned lest:

“[q]uarrelling neighbours and families would be able to threaten one another with prosecution. Students and young people sharing accommodation who might be tempted to borrow one another's property in disregard of a prohibition by the owner would be in danger of acquiring a criminal record. Further, it would be difficult for the police to avoid being involved in wasteful and undesirable investigations into alleged offences which had no social importance. It would be difficult to see how the provision could be framed in a way which would satisfactorily exclude trivial cases and meet these objections.”4

19.5

We are not greatly impressed by this argument, since many offences –including larceny– range from the trivial to the serious. In general the victims of trivial criminal conduct do not pursue the matter with the Gardai. In cases where they do, they are surely entitled to do so. Any idea that certain categories of relationship, such as families, students or young people sharing accommodation should not receive the full protection of the law must be rejected. So also must the view that, because of a perceived inappropriateness of an extended offence of larceny applying with full force to these relationships, the change should not on that account be made.

19.6

In the United States, the penal codes in a number of states include within the concept of intent to deprive “a withholding under such circumstances that the economic or utilitarian benefits of ownership are lost”.5 Thus, a person who borrows without authorisation property that has only a limited useful life may be guilty of theft:

“Even if the thief intends to return such property at some future time, the owner may suffer substantial loss as the property depreciates while it is being withheld from him. Because the consequences to the owner may therefore be the same as if the property had been permanently appropriated these codes treat such a misappropriation as theft.”6

19.7

Under England's Theft Act, 1968 a similar notion may be discerned in section 6(1), which provides that a borrowing or lending of a thing may amount to treating it as one's own, and thus be deemed to fulfil the requisite intention of permanently depriving the owner of the thing,7“if, but only if the borrowing or lending of it is for a period and in circumstances making it equivalent to an outright taking or disposal”. Although the drafting may not be the happiest, it


4

Eighth Report, para 56.

5

TAH & JIR, Note: Reforming the Law of Acquisitive Offences, 59 Va L Rev 1326, at 1336 (1973).

6

Id. Article 223.0(1) of the Model Penal Code defines “deprive” as meaning “(a) to withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or (b) to dispose of the property so as to make it unlikely that the owner will recover it”.

7

Cf Smith, para 133.



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seems clear that this provision extends [inter alia] to borrowings “where the taker intends not to return the thing until the virtue is gone out of it. D takes P's dry battery, intending to return it to P when it is exhausted; or P's season ticket, intending to return it to P when the season is over”.8

19.8

Professor Smith addresses the situation where the virtue has been very nearly, but not entirely, eliminated from the borrowed property:

“D takes P's season ticket for Nottingham Forest's matches intending to return it to him in time for the last match of the season. Is this an 'outright taking so as to amount to theft of the ticket? If it is, is it theft if D intends to return the ticket in time for two matches? – or three, four, five or six – where should the time be drawn? The difficulty of drawing a line suggests that it should not be theft of the ticket unless D intends to keep it until it has lost all its virtue.9

This means, of course, that if D takes P's car and keeps it for ten years, he will not be guilty of theft if, when, as he intended all along, he returns it to P, it is still a roadworthy vehicle, though the proportion of its original value which it retains is very small. If it can no longer be described as a car, but as scrap metal, then, if D intended to return it in this state, he has stolen it.”10

The reference in section 6(1) to lending, in Smith's view, “appears to contemplate the situation where D is in possession or control of the property and he lends it to another. If D knows that ... when P gets the property back again, the virtue will have gone out of it, this is equivalent to an outright disposal”.11

A Recklessness Test as to Permanent Deprivation

19.9

It may be difficult for the prosecution in some cases to show an intent permanently to deprive the owner of the property. The defendant may have behaved with supreme indifference with regard to the owner's interests. Would there therefore be merit in framing the mens rea requirement of theft in terms of recklessness as to whether or not the owner is permanently deprived of the property? The argument against this approach is that while anti-social conduct falling short of an intention permanently to deprive may well be worthy of criminal sanction, it ought not to be characterised as sufficient mens rea for the offence of theft, which historically has required an intent permanently to deprive. Perhaps this is a less strong objection than might first appear. As we have seen, it was not until the nineteenth century that this requirement was clearly


8

Id.

9

Smith, para 135, fn 1, points out that the difficulty “might satisfactorily be overcome in this case by holding that the right to see each match is a separate thing in action, of which P is permanently deprived once that match is over” (citing Chan WaiLam v R, [1981] Crim L R 497). Of course, this solution would not be available for many other cases of very considerable, but not complete, exhaustion of the borrowed thing's virtue. If a season ticket covered Cup matches, much virtue could ebb from it at an early stage!

10

Smith, para 135.

11

Id, para 136.



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articulated by the courts. We are satisfied that the mens rea for the intent to deprive could be extended to accommodate recklessness.

19.10

Section 179, the theft or stealing offence in the New Zealand Crimes Bill, incorporates the intent permanently to deprive and provides, in addition, for “being reckless whether or not the act deprives any owner permanently of the property”.

Mens Rea Test expressed in Negative Terms

19.11

Another approach would express the mens rea test on this issue in negative terms: the defendant who had taken property without the consent of the owner would be liable if he had a “lack of purpose to return the property with reasonable promptitude and in substantially unimpaired condition”.12 Under this approach the onus would be on the defendant to establish the existence of such a purpose.13 Whether this would be just to the defendant is a matter for consideration. Furthermore, it has been suggested that if this formulation were actually applied:

“a jury might well infer the requisite specific intent to deprive the owner of the property where the actor had only been negligent in caring for property in his possession or in failing to return it promptly.”14

Penalising Specific Instances of Temporary Deprivation

19.12

We must now consider whether the better approach would be for the law to penalise temporary deprivation of a specific, defined number of types. As we have seen our law already provides that the temporary taking of a motor vehicle is an offence. In England section 12 of the Theft Act, 1968 introduced a broader offence, applying to the taking of “any conveyance” (save a pedal cycle)15 for the use of the defendant or of another. Thus the taking of yachts, boats and aircraft falls within its scope. The CLRC, which proposed this extension, noted that tampering with yachts and boats was:

“common in some places, and in several recent instances valuable yachts have been taken out to sea, sometimes by unskilled young people who have risked losing their lives as well as the yacht.”16

19.13

The Committee were of opinion that:

“it would be salutary to bring the taking of conveyances in general within


12

Proposed Michigan Revised Criminal Code, s3205, Comment at 226 (Final Draft, 1967), cited by TAH & JIR, Note: Reforming the Law of Acquisitive Offences, 59 Va L Rev 1326, at 1337 (1973).

13

If under this formulation doubts arise as to whether an onus shift is involved, the problem could of course be resolved by a clearer draft.

14

TAH & JIR, op cit, at 1337.

15

The taking of pedal cycles is made a summary offence by section 12(5).

16

Eighth Report, para 83.



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the criminal law. In the case of conveyances other than pedal cycles we see no reason why the existing offence of taking and driving away a motor vehicle should not be applied (with the necessary adaptation of the notion of driving away) or why the maximum penalties should be different. Although there is no practical problem at present with aircraft, there might be one in future; in any event there seems no need to exclude aircraft from the offence.”17

Theft from Galleries etc.

19.14

An example of temporary deprivation which led to the building of a complex legal edifice concerned the taking of articles kept in churches, art galleries, museums and other places open to the public.18 In England, after a series of such takings, in particular that of Goya's portrait of the Duke of Wellington from the National Gallery, the Criminal Law Revision Committee came to the conclusion that the situation was serious enough to warrant the creation of a special offence.19

19.15

The Committee analysed the issue as follows:

“Churches, art galleries, museums and other places open to the public may contain articles of the greatest importance and value, many of them irreplaceable. They cannot always be protected as well as in private premises and, if removed, may easily be lost or damaged. Against this it can be argued that, serious cases of the kind are rare and ... that offenders are more eccentric than genuinely criminal. Before the Goya case few people would have said that there was an evil unprovided for and serious enough to require the creation of a new offence: and there are objections to extending the criminal law because of isolated occurrences. There may also be the danger that the taker will be less likely to return the property eventually if he is liable to punishment for having removed it.”20

19.16

Section 11 of the Theft Act, 1968 which gave effect to the Committee's recommendations. It provides as follows:


(1)


Subject to subsections (2) and (3) below, where the public have access to a building in order to view the building or part of it, or a collection or part of a collection housed in it, any person who without lawful authority removes from the building or its grounds the whole or part of any article displayed or kept for display to the public in the building or that part of it or in its


17

Id, para 84.

18

See the English Criminal Law Revision Committee's Eighth Report, para 57.

19

The Committee decided not to include a provision in the Bill, because they feared that, the matter being one requiring consultation, this might delay the completion of their Report. In fact the Government dealt with the matter in section 11 of the Theft Act, 1968.

20

Eighth Report, para 57.



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grounds shall be guilty of an offence.

For this purpose “collection” includes a collection got together for a temporary purpose, but references in this section to a collection do not apply to a collection made or exhibited for the purpose of affecting sales or other commercial dealings.


(2)


It is immaterial for purposes of subsection (1) above, that the public's access to a building is limited to a particular period or particular occasion; but where anything removed from a building or its grounds is there otherwise than as forming part of, or being on loan for exhibition with, a collection intended for permanent exhibition to the public, the person removing it does not thereby commit an offence under this section unless he removes it on a day, when the public have access to the building as mentioned in subsection (1) above.


(3)


A person does not commit an offence under this section if he believes that he has lawful authority for the removal of the thing in question or that he would have it if the person entitled to give it knew of the removal and the circumstances of it.


(4)


A person guilty of an offence under this section shall, on conviction on indictment, be liable to imprisonment for a term not exceeding five years.”

19.17

The section is drafted in such a way as to exclude:

“not only commercial art galleries but also shops, salerooms and exhibitions for advertising purposes. Had it not been for this limitation, it is obvious that the scope of the section would have been immensely wider than is necessary to deal with the narrow class of cases at which the provision is aimed.”21

19.18

Where the public are admitted to view a building then anything displayed in it is protected by section 11:

“Where a cathedral is open to the public to view and D removes an article which is displayed there, it is immaterial whether a collection is


21

Smith, para 275. Professor Smith goes on to point out that a particular collection “may be protected if the conditions of the section are satisfied, even though it is housed in a sale room, as where Christies' gave an exhibition in their sale room of articles which had been purchased from them and were lent by public galleries all over the world”. Id.



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displayed or not.”22

19.19

But an article in a cathedral or church is not considered to be “displayed” if it is placed there solely for devotional purposes.23

19.20

Rather than resort to legislation like s11, Professor Williams has argued24 that temporary appropriation should be theft. He argues that:


(a)


in several legal systems this rule has been applied: Roman law had the notion of furtum usus, the Indian Penal Code25 has covered dishonest temporary takings since its inception;


(b)


increasingly, the value of articles lies in their use; an owner deprived of the use of an article will be put to trouble and perhaps unnecessary expense. Those who take property, even temporarily, may do so from motives of revenge, spite, extortion, dishonesty or profit; they may put the property at risk or return it in an impaired condition. This is not the kind of conduct which in his view should be exempt from criminal sanction;


(c)


the taker may not know when he takes the property whether he will return it, recklessness is not captured;


(d)


it makes it impossible to steal information;


(e)


persons who take goods and hold them to ransom may not be caught;


(f)


while it is an offence in England to make off temporarily with a cart, it is not an offence to make off with a horse.

19.21

In Canada, the Law Reform Commission of Canada have proposed that an intention to deprive the owner temporarily of his interest in property should suffice. The merits of this approach have been doubted by Professor Leigh, who invites reconsideration for these reasons:

“First, most of these cases do not seem serious enough to justify being treated as theft, still after all, regarded as a serious offence. Second, the requirement of only temporary deprivation makes the problem of


22

Smith, para 273. Presumably churches generally would be considered open to the public “to view”, in that an entrant with such an intent would scarcely be characterised as a trespasser. But unlike the cathedrals of our metropolis, which quite clearly cater for viewing tourists, it might be difficult to perceive this purpose in a small country parish church, where the overwhelming majority of entrants will neither be intended to, nor actually, have the aim of “viewing” the church building. Moreover, most if not all, of the articles will have been placed in the church for devotional purpose.

23

Id para 268, citing Barr, [1978] Crim L Rev 244.

24

Williams, Temporary Appropriation Should Be Theft, [1981] Crim L Rev 129.

25

Cf section 378 of the Code.



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encapsulating the notion of dishonesty in the [Criminal] Code even harder than it would otherwise be. Third, it produces major problems when dealing with joy-riding, the essence of which is also temporary deprivation. The result [of La France26] is ... either to narrow joy-riding to the unrealistic case where the actor intends to return the vehicle, or to admit a wide and undesirable measure of police and prosecutorial discretion in the choice of charges. The difference between a conviction for theft [and] the lesser offence may turn on the way in which the actor responded to the police.”27

19.22

We would be persuaded by Professor Williams. As to the trivia argument he says:

“The argument about trivial cases is frequently used to oppose extensions of the law, but it is never conclusive in itself, because practically every offence covers some trivial matters. If an offence is needed to deal with serious misconduct, that is sufficient to justify it. Even the present law could be abused by prosecuting for trivial thefts, but in practice a sensible discretion is generally exercised. The Canadian experience bears our the view that a law of furtum usus is unlikely to be used oppressively”.28

19.23

As recently as 1984, the unauthorised taking of motor vehicles was made an indictable offence carrying a maximum penalty of 5 years imprisonment.29 Since that time, it is fair to say that heavier sentences are being imposed for “borrowing” cars than for the average larceny of other property making the distinction somewhat unreal. What better time to remove the old requirement than the time when the old law of larceny is being replaced by a new law of appropriation? The alternative would involve complicated drafting, such as is found in the provisions relating to removal of objects from galleries in the Theft Act, and the necessity of creating a special offence for theft of information rather than a simple extension of the definition of property.

19.24

Accordingly, we recommend the removal of the requirement to prove an intent to deprive the owner permanently of property in offences of dishonesty.


26

[1975] 2 SCR 201.

27

Leigh, Approaches to the Reform of the Law of Theft, 29 Cahiers de Droit, 469, at 483–484 (1988).

28

Williams, op cit, p 138.

29

Road Traffic (Amendment) Act, 1984.



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CHAPTER 20: WHAT TYPE OF PROPERTY SHOULD BE CAPABLE OF BEING STOLEN?

20.1

We now must consider what type of property should be capable of being stolen. The issue raises difficult questions of policy. Inevitably, boundaries between larcenability and non-larcenability can appear somewhat arbitrary. The present law certainly involves some controversial line-drawing.

(a) Land

20.2

At present, as we have seen, the general rule is that nothing attached to or forming part of the realty is capable of being stolen.1 However, it is possible to steal fixtures, growing things, and ore from mines.2 Land can not be embezzled but it can be fraudulently converted under section 20(1)(iv) of the Larceny Act, 1916.3

20.3

The English Criminal Law Revision Committee, in their Eighth Report, listed the arguments for and against making land the subject of theft in general:

“The arguments in favour of making land the subject of theft in general appear to be these:


(i)


Stealing by moving a boundary, for example, is a real problem, especially in crowded housing estates. It is as dishonest as stealing ordinary property, and it can cause considerable loss. Rectification may be difficult and expensive after boundaries and buildings have been erected. To make the misappropriation stealing would be salutary.


1

Larceny Act, 1916, section 1(3).

2

Cf id, sections 8 and 10.

3

See further the English Criminal Law Revision Committee's Eighth Report, para 41.



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(ii)


It is right in principle, and in accordance with the scheme of the Bill, to draw no distinction between land and other property in this respect.

The contrary arguments seem to be these:


(i)


Stealing land by encroachment is not so widespread or socially evil that the civil remedies are insufficient.


(ii)


It might be too severe to make a tenant guilty of theft if, for example, he sold waste material such as earth or rubble after making alterations in the garden.


(iii)


In other legal systems misappropriation of land is, in general at least, not treated as theft. The reason is perhaps that land cannot be taken away.


(iv)


A squatter may get a good title in civil law after occupation for twelve years .... It would be anomalous that he should remain in theory guilty of theft for ever afterwards, however unlikely he would be to be prosecuted or, if convicted, given more than a nominal sentence. The anomaly is so great that it would seem necessary to provide that a squatter should not be liable to prosecution once he had acquired a good title. (This question hardly arises with a tenant holding over, because he would be unlikely to have the requisite intention of depriving the owner permanently).


(v)


Criminal liability might involve difficult – albeit rare – questions of title to land which could not easily be decided by the criminal court.”4

20.4

The Committee considered these arguments to be finely balanced. They favoured a compromise by which land should be the subject of stealing in only certain cases, not including moving boundaries or squatting. These exceptional cases were:


(i)


dishonest appropriation by trustees or other persons in a position to sell or dispose of the land of another or anything forming part of it;


(ii)


dishonest appropriation by persons not in possession, for example by removing soil;


(iii)


dishonest appropriation by tenants of fixtures to be used with the land.


4

Id, paras 42–43.



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20.5

Section 4(2) of the Theft Act, 1968 gives effect to these recommendations. It provides as follows:

“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 incorporeal 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.”

20.6

Professor Smith notes that:

“The following acts, which would not (or may not) have been larceny under the old law, are theft under the new:

D enters upon land in the possession of P and (i) demolishes a brick wall and carries away the bricks; (ii) removes a stone statue fixed in the land; (iii) digs sand from a sand pit and takes it away; (iv) cuts grass growing on the land and at once loads it onto a cart to drive away; (v) takes away P's farm gate.”5

Professor Smith identifies6 a lacuna in section 4(2)(c): it fails to catch the conduct of a person in possession of land other than a tenant. Thus a licensee in possession of land would not be guilty of theft if he dishonestly appropriated fixtures or dug sand or ore from the land.7


5

Smith, para 90.

6

Id, para 92.

7

Id.



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20.7

The definition of “property” in the Australian Capital Territory Ordinance is less elaborate:

”Property” means any real or personal property and includes:


(a)


a chose in action and any other intangible property, other than an incorporeal hereditament;


(b)


a wild animal that is tamed or ordinarily kept in captivity; and


(c)


a wild animal that is not tamed nor ordinarily kept in captivity but that is:


(i)


reduced into the possession of a person who has not lost or abandoned that possession; or


(ii)


in the course of being reduced into the possession of a person.”

20.8

The definition in the New Zealand Crimes Bill is briefer still:

”Property” includes all things, animate or inanimate, in which any person has any interest or over which any person has any claim; and also includes money and things in action.”

20.9

In the United States, most jurisdictions include land as the subject of theft,8 though a few limit its larcenability to cases where it has been severed or disposed of by means of false pretences.

20.10

Section 223.2 of the Model Penal Code makes a distinction between movable and immovable property as follows:


(1)


Movable Property. A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property9 of another with purpose to deprive him thereof.


(2)


Immovable Property. A person is guilty of theft if he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto.”

20.11

The comment supporting this provision states that:


8

Cf the American Law Institute's Model Penal Code and Commentaries, pp 167–168.

9

Section 223.0 defines “movable property” as “property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location”. “Immovable property” is defined (id) as “all other property”. Thus anything located on real property, such as crops, timber or oil, which can be removed and converted to the use of one who is not entitled to do so is movable property: Id, p 172.



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“Despite the judgment that real property is appropriately included within the concept of 'property', a definition of theft should not be so broad as to include unlawful use or occupancy of land. The immobility and virtual indestructibility of real estate makes unlawful occupancy of land a relatively minor harm for which civil remedies supplemented by mild criminal sanctions for trespass should be adequate.

Thus, even though a squatter may acquire title to land by exercising adverse control for the prescriptive period, he is not a thief within section 223.2. He would be excluded from subsection (1) because that section applies only to “movable” property ....

Similarly, subsection (1) does not apply to landlord-tenant relations. Relations between a landlord and a tenant are so minutely regulated and constitute such a delicate socio-political problem that it would be wrong to introduce the possibility of a theft prosecution for unauthorized occupancy by a tenant or improper eviction by a landlord. Again, the limitation of subsection (1) to 'movable' property assures that this result will not occur and leaves to other sources of law the remedies that should be provided for such conduct.

Subsection (2) makes it clear, however, that a trustee, guardian, or other person empowered to dispose of 'immovable' property of others subjects himself to theft liability if he misappropriates the property, i.e., if 'he unlawfully transfers immovable property of another or any interest therein with purpose to benefit himself or another not entitled thereto'. There may well be situations in which civil remedies are ineffective to deal with such conduct, as in the case of a transfer or encumbrance which is made by the holder of legal title to a good-faith purchaser. Such a transfer would convey an effective interest as against beneficial owners. Quite apart from the possibility that civil remedies may be inadequate, it seems clear that criminal liability for theft is appropriate in cases where a person seeks to benefit himself or another through the illegitimate transfer of interests in real property. There is little to distinguish such cases from any other attempt to secure economic benefit at the expense of another.”10

20.12

The general similarity of approach between the English Criminal Law Revision Committee and the Model Penal Code is worth noting.

20.13

The Law Reform Commission of Canada's proposals, in clauses 1(2) and


10

Op cit, pp172–173. The Model Penal Code's approach to the theft of land has received support. Two commentators (TAH & JIR, Note: Reforming the Law of Acquisition Offences, 59 Va L Rev 1326, at 1328 (1973)) have said with regard to Article 223.2:

“This distinction appears sound, since it limits liability for theft to situations in which the thief has clearly and meaningfully violated the property interests of the landowner. At the same time, the criminal law does not become involved in disputes that are more easily settled in civil actions.”



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13(1) of their Report entitled Recodifying Criminal Law, published in 1986, make no distinction between real and personal property for the purposes of the offence of theft. Professor Leigh has observed that:

“the Canadian proposals have the great advantage that any dishonest transfer can be brought within theft. One would not, for example, have to worry about the status of the transferor or the precise nature of any authorisation upon which he might rely.

On the other hand, there is no recognition of the reason which led the American Law Institute to reject a general assimilation of movable and immovable property, that is, the undesirability of including unlawful use of occupancy of land, perhaps by an overholding tenant, within theft ....

The problem is surely potentially more difficult in Canada where, as the proposals now stand, intent to deprive temporarily will suffice for theft. Any temporary dispossession of my neighbour from any part of his property would, seemingly, fall within the theoretical ambit of theft, squatters would become thieves, and the police would be called upon to intervene in situations of social unrest to which the civil law seems better adapted.”11

20.14

In the Irish context it is worth noting that, before 1957, the expiration of the limitation period (of six years) merely barred a right of action for conversion and detinue, and did not divest the owner of the chattel or his title to it. Thus, if he could recover it otherwise than by action, he was entitled to do so. Furthermore, any further conversion or wrongful detention of the chattel by a third person entitled the owner to sue in respect of it, his action running from the time of the subsequent wrongful act.

20.15

Section 12 of the Statute of Limitations 1957 has changed the position on both these points. Now, the owner's title to the chattel is extinguished after the expiry of the relevant limitation period, unless he has in the meantime recovered possession of it.12 Moreover, where a chattel has been converted or wrongfully detained, and before the owner recovers possession of it a further conversion or wrongful detention takes place, no action may be brought in respect of this subsequent tort after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.13

20.16

The position can thus arise under Irish law at present that a person may be convicted of stealing what has, through the effluxion of time, become his own property. This must be borne in mind when deciding what is the appropriate weight to be given to the argument that land should not be the subject of theft because ownership in it may eventually pass to the transgressor through adverse


11

Leigh, Approaches to the Reform of the Law of Theft, 29 Cahiers de Dr 469, at 488 (1988).

12

Section 12(2). The provision is subject to section 26, which deals with chattels held in trust.

13

Id, section 12(1) (also subject to section 26).



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possession.

20.17

As a general rule, we consider it better legislative practice to have the seriousness or “offensiveness” of an act determined by the nature of the act itself rather than by the identity or position of the actor. For this reason, we do not consider it appropriate or necessary to make special provision for appropriation by trustees or personal representatives, as has been done in s4(2)a of the Theft Act, 1968.

20.18

Subject to that, we would recommend the introduction of legislation, similar to that in s4(2) of the Theft Act, providing that land can be stolen, except in certain circumstances, and excluding the provision in s4(2)(a) relating to trustees.

(b) Flora and Other Growing Things

20.19

The next question we must consider is whether such things as trees, plants, flowers, fruit and foliage should be the subject of theft. The English Criminal Law Revision Committee were clearly of the view that, if cultivated, they should; but they considered that there was “a difficult question”14 about things growing wild:

“On the one hand a person should not ordinarily be guilty of theft by picking wild flowers and the like. On the other hand it may be right that this should be theft in some cases. Examples are cutting holly at Christmas to sell and perhaps picking sloes which the owner of the land wants to keep in order to make sloe gin or picking wild flowers which he is anxious to preserve for their beauty or rarity.”15

20.20

The Committee considered but rejected the option of providing that things growing wild should in no case be the subject of theft. It seemed to them:

“right that (for example) picking another person's holly to sell should be theft. This is an offence of dishonesty and it can be profitable.”16

20.21

But the Committee were also opposed to letting the law of theft apply in all cases. They acknowledged that, in trivial cases, the defence of absence of dishonesty might be raised and that landowners and prosecuting authorities would presumably be sensible enough to prosecute only in the exceptional cases where this would be reasonable. Moreover, such cases would usually be tried summarily and only a mild punishment would be imposed. Nevertheless they considered that “a provision could reasonably be criticised which made it even technically theft in all cases to pick wild flowers against the will of the owner”.17 Accordingly, they proposed a compromise. A person should not be guilty of


14

Eighth Report, para 46.

15

Id.

16

Id, para 47.

17

Id.



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theft by picking mushrooms or flowers, fruit or foliage growing wild unless he did so for reward or for sale or another commercial purpose. As regards flowers, fruit and foliage, this exemption would apply only where the person managed to accomplish his purpose without injury to the growth of the plant.

20.22

This latter requirement is not included in section 4(3) of the Theft Act, 1968, which provides as follows:

“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 purpose of this subsection 'mushroom' includes any fungus, and 'plant' includes any shrub or tree.”

20.23

One can readily appreciate the advantages of this general approach. There is something offensive to one's sense of justice in making the picking of wild flowers against the will of the landowner constitute the actus reus of theft, however unlikely a prosecution might be. Section 4(3) contains a rational limitation which is relatively easy to understand and apply.18

20.24

As against this it is worth recording Smith & Hogan's view that:

“[t]he whole matter might have been left to the common sense of the prosecutor who would hardly institute proceedings where the appropriation was trivial. Of course this would leave the aggrieved landowner free to take proceedings in such trivial cases, but generally under the criminal law the person aggrieved is free to take proceedings in the most trivial case and this does not apparently lead to any serious abuse.”19

On balance, we would recommend the adoption of the provision in s4(3) of the Theft Act, 1968 relating to the Theft of flora and growing things.

(c) Tame Animals

20.25

As we have seen,20 at common law some domestic animals were not the subject of theft. Section 21 of the Larceny Act, 1861 made the theft of domestic animals a summary offence, and provisions in that Act and the Larceny Act, 1961 deal specifically with the theft of certain domestic animals.


18

There is admittedly a small element of disagreement among the commentators as to whether a single, isolated, case of appropriation with the intention of sale should fall within the scope of the sub-section, since it may not necessarily be considered to amount to a “commercial” purpose, “the wording of the subsection requir[ing] that sale, as well as other purposes, be 'commercial'”: Smith, para 97. Professor Williams, op cit, 683, fn 1 (1st ed) queries this interpretation, enquiring whether the wording of the subsection “does not imply that every sale is to be taken to be commercial”. We favour Professor Williams's interpretation. 78.

19

Smith and Hogan, 508.

20

Supra, p5.



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It may be argued that the law should not treat domestic animals in this distinct manner, and that instead the theft of animals should be treated simply as part of the law of theft in general. The present approach may be considered difficult to justify and to contain unnecessary complexities. In appropriate cases, where the theft is a minor one, it can be disposed of summarily; it may well be that the theft of most domestic animals will usually warrant such treatment, but it may be argued that there is nothing distinctive about them which would justify this approach.

(d) Wild Animals

20.26

As we have seen,21 under present law wild animals at liberty, having no owner, are not the subject of larceny. A poacher is guilty of larceny only where, having killed the wild animal, he abandons possession of it on the land and later takes it away. We must now consider the argument that poaching should be made the offence of theft in any case where the poacher takes a wild creature, whether dead or alive, with the intention of permanently depriving the person entitled to the sporting rights in the creature.

20.27

The English Criminal Law Revision Committee made a detailed examination of the issue. A principal argument in favour of making poaching theft was that:

“[s]porting rights may be valuable. Some farmers spend money and labour on improving the shooting on their land with a view to the income. It is therefore both logical and correct in policy that these rights should be protected from dishonest violation in the same way as rights to other profits of the land. Fishery rights, in particular, may be owned by modest anglers' clubs which cannot afford to pay keepers to protect their rights from local poachers.”22

20.28

While it would be unwise to ignore the historical background and community attitudes or the continuing potency in certain areas of the symbols of absentee landlordism, the pressure to abolish ground rents being one example, we agree with the English Criminal Law Revision Committee that “[n]owadays a good deal of poaching is done on a large scale and for purely commercial purposes. Poaching should therefore be treated as an offence of dishonesty”.23 The same position now prevails in Ireland. Some formidable arguments (apart from those already mentioned) must be considered. It may be contended that wild animals are not generally the subject of theft with good reason: whether they have an owner may be regarded as largely a matter of chance. The present offences in regard to poaching and related matters have not received widespread criticism on the basis of their leniency. To require the Gardai to take an active role in detecting or preventing the theft of fish and other wild animals would


21

Supra, pp5–6.

22

Eighth Report, para 50.

23

Id.



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involve them in an area of little social significance, with a potential for aggravating communal disharmony.

20.29

The English Criminal Law Revision Committee came to the conclusion24 that it would involve too great a departure from the existing law to make poaching in general constitute theft; they were impressed by the fact that in the law of no other country of which they aware were wild animals the subject of theft; moreover, the greatly increased maximum penalty for theft (of ten years' imprisonment) seemed inappropriate. However, the Committee considered that, as in the case of flora and other growing things,25 the taking of a wild creature for commercial purposes (as well as for reward) should constitute theft; they proposed the abolition of the rule contained in section 1(3), proviso (b) of the Larceny Act, 1916, on the basis that “[t]o distinguish this case would be quite illogical”.26

20.30

Section 4(4) of the Theft Act, 1968 provides as follows:

“Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the carcase 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.”

We recommend the adoption of such a provision.

(e) Theft of Choses in Action, and Information

(i) Choses in Action

20.31

We now must consider whether choses in action should be the subject of theft. A chose in action is “property which does not exist in a physical state but which may be vindicated by a legal action”.27 Thus, a debt or a company share or a copyright or trade mark is a chose in action.28 With regard to cheques, Professor Smith has written:

“The thing in action represented by [the] cheque can never, it is submitted, be stolen from the drawer because it consists in a right to sue the drawer and the drawer cannot sue himself so he can never “own” the right to do so; but there is another thing in action which does belong to the drawer and which can be stolen from him and that is his credit balance or right to overdraw at his bank. In Chan Man Sin [1988] Crim


24

Id, para 52.

25

Cf supra, pp7 et seq.

26

Eighth Report, para 52.

27

Smith, para 104.

28

Id.



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LR 319, PC, a company accountant who drew forged cheques on the company's account was convicted of stealing the things in action represented by the company's credit balance and its contractual right to overdraw.”29

20.32

Glanville Williams writes that the thief who steals a cheque:

“can be charged with stealing the cheque as a piece of paper (of the value of £x) from the drawer (the person who has the bank account) or other person from whose possession the thing was taken. On conviction the thief can be punished according to circumstances, and if he has cashed the cheque that is of course an important circumstance.

Alternatively, if he has cashed the cheque (whether at a bank or by obtaining cash for it from someone else) he can be convicted either of stealing the cash or of obtaining it by deception.”30

20.33

In England, section 4(1) of the Theft Act, 1968 defines “property” as including “things in action and other intangible property”. The American Law Institute's Model Penal Code, in Article 223.0(6), defines property as meaning:

“anything of value, including real estate, tangible and intangible personal property, contract rights, choses-in-action and other interests in or claims to wealth ....”

20.34

The opportunity for the theft of choses in action is not very great in practice, and “the great majority of [the cases] will be [ones] of misappropriation by trustees, personal representatives and others”.31 The usefulness of the provision is also limited by the necessity to prove an intention permanently to deprive the owner of his intangible property. While Griew, for example, is of opinion that the Theft Act permits one to charge for larceny of the share certificates, he advises that in “obvious” cases, such as infringement of a trade mark or copyright, the assumption of an owners right to use a mark or reproduce the work subject to copyright, any prosecution for theft would founder because of the necessity to prove the intent permanently to deprive as only the exclusiveness of possession would have been sabotaged.32 This problem would disappear if our recommendation to dispense with this proof were followed.

20.35

We recommend that property be defined to include choses in action.

(ii) Information

20.36

A potential for a vastly wider range of liability is raised by the possibility


29

Commentary on R v Davis [1988] Crim L Rev 762 at 765.

30

Williams, (2nd Ed) 757.

31

Id.

32

Griew, para 2–82.



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of another intangible asset, information, being regarded as a proper subject of theft. As we have mentioned in chapter 2, courts in other common law jurisdictions are divided on this question. In England the view was taken that the acquisition and copying of confidential information is not theft.33 In Canada, however, a different view was taken in Stewart,34 where the majority of the Ontario Court of Appeal held that the copying of a confidential list of hotel employees fell within the definition of theft under the Canadian Criminal Code. (The Supreme Court of Canada subseqently reversed the Ontario Court of Appeal).

20.37

In favour of the view that information should be the subject of theft it may be argued that in contemporary society such an intangible asset has far greater prominence than formerly. The expansion of computers and of the means of telecommunication has given a huge value to information, especially secret information. For the law of larceny to exclude the theft of information may be perceived as being behind the times.

20.38

Against this, it may be argued that to impose the criminal sanction of theft on the improper acquisition and dissemination of information would be socially undesirable. One commentator has observed that:

“The need to maintain the free and open transmission of ideas and information is the cornerstone of the western liberal tradition, and should be viewed as the overriding norm. Departures, or suggested departures, from this norm should be rigorously scrutinised and granted only in compelling cases, and then only in sufficient but no more than sufficient terms.”

It may be, for instance, that a good case can be made out on economic grounds for improved civil remedies against misappropriation of trade secrets or other commercially valuable information of an intangible nature. Such an approach would add a third tier of statutory rights alongside patents and copyright. However, even where legal protection is, for reasons which are thought to be good and sufficient, extended to this kind of 'information', such exceptions to the general principle may still have to be defeasible where there is an overriding 'right to know', in the public. These principles will probably have to be applied to a wide variety of fact situations with complex public policy assessments being made in each case as to the likely social and economic costs entailed in granting or withholding protection. Information entitlement statutes may well become the industrial, health and welfare statutes of the future. The criminal law is too blunt an instrument for this task. It does not offer a 'quick fix' for the kinds of issues at stake. The solution to information issues lies in traditional legal methodology: the evolution and articulation of sound principles and their systemic, painstaking


33

Oxford v Moss, [1979] Crim L Rev 119.

34

149 DLR (3d) 583 (1983).



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application on a situation by situation basis.”34

20.39

Apart from the possible context of computer “hacking”, which we discuss later35 it may be argued that no clear social need has been shown for extending the criminal law of theft into the area of information misappropriation. At present, our civil law affords a wide range of protection, including statutes dealing with copyright, trade marks and data protection. The common law remedies of passing off36 and breach of confidence37 also range widely. It may be that these should be extended still further, but whether a criminal sanction in lieu or in addition is called for may be debated.

20.40

A similar problem has arisen in respect of the “pirating” of films or of television or other 'exclusive' signals. The actual film or signal is “left behind” but the owner or distributor loses the fee for access to the film or signal, properly due to him for his investment in making, disseminating or distributing the film or signal.

20.41

This problem used to arise in the area of telecommunications e.g. where telephone calls were made without authority. The prosecution used to resort to charges of larceny of electricity or latterly, (and successfully) of common law cheat, to address this mischief. Finally, the problem was specifically addressed in the Postal and Telecommunications Services Act, 1983. S99 of the that Act provides:-

A person who wilfully causes the company to suffer loss in respect of any rental, fee or charge properly payable for the use of the telecommunications system or any part of the system or who by any false statement or misrepresentation or otherwise with intent to defraud avoids or attempts to avoid payment of any such rental, fee or charge shall be guilty of an offence.


(2)


A person who connects or causes to be connected any apparatus or device to, or places or causes to be placed any apparatus or device in association or conjunction with, the telecommunications system operated by the company or any part of the system the effect of which might result in the provision by the company of a service to any person without payment of the appropriate rental, fee or charge shall be guilty of an offence.

20.42

The legislature has addressed this problem in s9 of the Broadcasting Act, 1990 by creating an offence of “interception of service”.


(1)


No person, other than a duly authorised officer of the


34

Hammond, Theft of Information, 100 LQ Rev 252, at 263–264 (1984). (Footnote reference omitted).

35

Infra, Chapter 29.

36

See McMahon & Binchy, ch 31.

37

See Keane, ch 30.



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Minister, shall, in relation to a service provided by a licensee or a service provider –


(a)


intercept the service,


(b)


suffer or permit or to any other thing that enables such interception by any person,


(c)


possess, manufacture, assemble, import, supply, or offer to supply, any equipment which is designed or adapted to be used for the purpose of enabling such interception by any person, or


(d)


publish information with the intention of assisting or enabling any person to intercept such a service.


(2)


No person shall –


(a)


knowingly instal or attempt to instal or maintain any equipment which is capable of being used or designed or adapted to be used for the purpose of enabling such interception by any person, or


(b)


wilfully damage or attempt to damage a system or part of a system operated by a licensee or service provider.


(3)


A person who contravenes any provision of subsection (1) or (2) shall be guilty of an offence.


(4)


In this section “intercept” in relation to a service means receive, view, listen to, record by any means or acquire the substance or purport of the service or part thereof supplied by a licensee or service provider without the agreement of the licensee or service provider.”

20.43

The civil law relating to abuse of confidence is evolving rapidly.

“The equitable doctrine of confidentiality has developed significantly in recent years in Ireland, along with other common law countries, but it must not be thought that the doctrine itself is in any sense novel. ... the willingness of equity to intervene in a case where one party was abusing the confidence placed in him by another was well established in the first half of the last century.

But it has been given renewed vigour in modern times by the growth of the 'information economy', the greatly enhanced value of 'intellectual property' and the inadequacy, in some areas, of the law of copyright, patents and trade marks in protecting such property from unjust exploitation. Thus, in the leading modern Irish case of House of Spring



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Gardens Ltd and others v Point Blank Ltd and others,38 the fact that the plaintiffs were entitled to protection for infringement of copyright and had also registered patent applications in respect of the subject matter of the proceedings did not prevent them from obtaining equitable relief under the doctrine of abuse of confidence.

The doctrine ... has not been confined to commercial law, but the extent to which it enables governments to protect themselves against alleged breaches of confidentiality by their own officials has given rise to controversy in some highly publicised cases in Ireland and other jurisdictions in recent times. Moreover, developments in the law of confidentiality in what might be called the public domain, and particularly where the topic of telephone tapping and various forms of technological information gathering are involved, have raised constitutional questions as to the extent to which a right of privacy exists in our law and if so the manner in which it may be protected.”39

20.44

Lawyers may well consider that the ability to obtain an injunction and damages is a sufficient sanction to keep abuse in check, better tailored to the particular mischief. But the criminal law of dishonesty already supplements and reinforces the civil law of trespass, fraud and deceit. It may well be that abuse of confidence e.g. by employees who are no marks for damages, may become in the future a highly popular activity requiring criminal sanction and a criminal deterrent. If a person's physical property is protected by the criminal law, why not his intellectual property? Each has value. The unlawful acquisition of either gives rise to economic loss.

20.45

If it is accepted that the criminal law should protect intellectual property, perhaps the law of theft or unlawful appropriation as such is not the best weapon to use. As the English Law Commission say:

“4.41 Information, particularly confidential information, will often be regarded as a valuable commodity. Information of one kind or another is frequently bought and sold. A right to confidential information is similar in some respects to a proprietary right and occasionally the courts have referred to such information as being “property”40; and for certain specific purposes the courts have treated it as such.41 Nevertheless information does not fit easily into the traditional concepts of either tangible or intangible objects, and its nature is such as to place it in a category of its own, distinct from that of property. It is perhaps not surprising that the Divisional Court should have established that for the purpose of section 4(1) of the Theft Act, 1968, information of itself is not intangible “property”, so that a charge against a student of stealing


38

[1984] IR 611.

39

Keane, 345. Certain footnote references omitted.

40

Citing as an example Boardman v Phipps [1967] AC 46.

41

In Re Keene [1922] 2 Ch 475 (CA), for instance, it was held that a secret formula relating to certain proprietary articles passed to its owner's trustee in bankruptcy.



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confidential information contained in the proof copy of an examination paper was misconceived.42 (Had he removed the examination paper with the intention of keeping it permanently, he would of course have been liable to be found guilty of theft of the paper).

Although in law dishonestly obtaining information of itself cannot be charged as theft or obtaining property by deception, the criminal law does offer a degree of protection against such conduct under a variety of other headings. One such heading, it would seem, may be conspiracy to defraud.43 ....

Obtaining information by deception may constitute the offence of obtaining services by deception under section 1 of the Theft Act, 1978, since to give information is to confer a benefit on the person who seeks it. However, a serious limitation arises because in order to constitute the offence, the benefit (the information) must have been supplied on the understanding that it has been or will be paid for. Since the offence does not apply to the obtaining of information not supplied for payment, it will not cover, for example, the case of the industrial spy who acquires secret information from a company by deception of one of its employees. Nor will section 1 apply where the information is obtained by making unauthorised access to another's computer because of the principle that, as the law stands at present, a machine cannot be “deceived”. Copying certain types of information may be a breach of copyright and to sell the copy may be an offence under section 21 of the Copyright Act, 1956. An offence of corruption under section 1 of the Prevention of Corruption Act, 1906 might be charged, if information is obtained by inducing an employee or other agent to disclose it in return for a reward. If the receipt of the bribe is proved, both the employee and the person seeking the information are liable to be convicted. Finally, the Official Secrets Act, 1911 contains provisions to protect certain information held by the Government from unauthorised abstraction and disclosure.

The offences mentioned above are each capable of being used to deal with particular situations involving the dishonest acquisition of information. None of them, however, deals with the problem of “stealing” valuable information generally. .... It is possible therefore, that a gap in the law may arise here.”44

20.46

In our view it is wrong to resort to a charge of stealing an exam paper when the actual mischief to be addressed is acquisition of knowledge of the questions, to charge larceny of electricity when the mischief is unauthorised use of a computer or in any of these cases, to seek out an agreement and charge


42

Citing Oxford v Moss (1978) 68 Cr App R 183.

43

Referring to Arlidge & Parry, para 3.12.

44

Working Paper No. 104 Criminal Law, Conspiracy to Defraud pps54 to 56, certain footnote references omitted.



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conspiracy to defraud, the last refuge of a prosecutor.

20.47

The New Zealand Crimes Bill contains an offence of “Taking, obtaining or copying trade secrets” and provides, in s185 that –

“Every person is liable to imprisonment for 5 years who, with intent to obtain for himself or herself or for any other person any pecuniary advantage, –


(a)


Dishonestly takes, obtains, or copies (whether by a photographic process or otherwise) any document or any model or other depiction of any things or process; or


(b)


Dishonestly takes or obtains any copy (whether produced by a photographic process or otherwise) of any document or of any model or other depiction of any things or process, –

believing that the document, thing, or process is of commercial value.”

This section is fine in itself but we consider it better to approach the issue by dealing with the definition of property.

20.48

Section 1 of the Criminal Evidence Act, 1992, has provided us with the following definitions:

“information” includes any representation of fact, whether in words or otherwise;

“information in non-legible form” includes information on microfilm, microfiche, magnetic tape or disk.

20.49

We recommend that property, in the context of dishonesty, be defined to include intellectual property protected by the equitable doctrine of confidentiality, the personal data defined in and protected by the Data Protection Act, 1988 or other valuable, confidential information. Official secrets, such as would be valuable in

THIS IS AN ORIGINAL PAGE-BREAK: PAGE NUMBER=181


the context of espionage, would be protected.45

20.50

This recommendation would be difficult to effect in the context of having to prove an intention permanently to deprive as one does not permanently deprive a person of information. The recommendation to dispense with this proof facilitates this recommendation.


45

The Calcutt Committee have recently recommended that:

1.

The following acts should be criminal offences in England and Wales:

a.

entering private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication;

b.

placing a surveillance device on private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication; and

c.

taking a photograph, or recording the voice, of an individual who is on private property, without his consent, with a view to its publication and with intent that the individual shall be identifiable.

(paragraph 6.33)

2.

It should be a defence to any of these proposed offences that the act was done:

a.

for the purpose of preventing, detecting or exposing the commission of any crime, or other seriously anti-social conduct; or

b.

for the protection of public health or safety; or

c.

under any lawful authority.



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CHAPTER 21: THEFT OF PROPERTY LOST, MISLAID OR DELIVERED BY MISTAKE

21.1

We now must consider the best way to deal with the misappropriation of property lost, mislaid or delivered by mistake. Under present law, as we have seen, criminal liability does not attach where the finder or recipient does not have the requisite mens rea at the time of the finding or receipt of the property; but, as we have also seen, difficulties can arise where the physical acquisition of the property comes some time before a consciousness on the part of the recipient of the true nature or value of the property.

Before addressing the policy issue directly, it may be useful to contrast two approaches to the subject, one involving a broad statement of principle, the other a minute disposition of several specific modes of conduct.

A. The Approach Based on a Broad Statement of Principle

21.2

The Model Penal Code adopts an approach involving a broad statement of principle. Article 223.5 provides as follows:

“A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with purpose to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.”

Noting the troublesome cases of Middleton1 and Ashwell2 the supporting comment states that Article 223.5:


1

LR 2 CCR 38 (1873). See para 2.31 supra.

2

16 QB 190 (1885). See para 2.53 supra.



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“eliminates the largely irrelevant issue of whether the owner remains in 'possession' of lost or mislaid property. It seems obvious that the guilt of a taker of 'found' property should not turn on whether the owner intentionally put the property where it was found. The gist of the offense is not a putative wrong in the actor's method of acquisition of the property but a purposeful appropriation without taking reasonable steps to restore the article to the owner.”3

21.3

The Comment also notes that it was necessary to limit the reach of Article 223.5, so as to avoid impinging on certain types of tolerated sharp trading. For example, it was not proposed to punish the purchase of another's property at a bargain price on a mere showing that the buyer had been aware that the seller was misinformed regarding the value of what he sold. The language of Article 223.5 was accordingly limited to situations where the mistake was as to “the nature or amount of” the property or the identity of the recipient.

One may, perhaps, register a note of caution as to the scope of the word “nature” here. Cases4 on contract law suggest that mistakes as to the “nature” of property transferred can involve just the type of sharp trading which the framers of the Model Penal Code seek to exclude.

The supporting Comment accepts that it could be argued that the conduct covered by Article 223.5 is adequately reached by Article 223.2(1), relating to one who “exercises unlawful control over” property of another “with purpose to deprive him thereof”.5 It argues, however, that the advantage of explicit coverage is that:

“conceptual difficulties with applying traditional larceny or embezzlement law to these situations can unmistakingly be discarded .... [T]raditional theft law generally has reached such conduct only by manipulation of antecedent concepts. There is every reason to continue at the same time posing the analytic subtleties that traditional law required.”6

21.4

On the question of the accused's mens rea, the Comment states that:

“[t]he search for an initial fraudulent intent appears to be largely fictional, and in any event, poses the wrong question. The realistic objective in this area is not to prevent initial appropriation but to compel subsequent acts to restore to the owner. The section therefore permits conviction even where the original taking was honest in the sense that the actor then intended to restore; if he subsequently changes his mind and determines to keep the property, he will then be guilty of


3

Model Penal Code and Commentaries, p225.

4

Cf Keane, paras 17.11–17.14, Clark, ch 10, Anson, 260–263.

5

Model Penal Code and Commentaries, p227.

6

Id.



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theft. Similarly, the section bars conviction where the finder acts with reasonable promptness to restore the property, even though he may have entertained a purpose to deprive at the time he acquired the property or at some other time during his possession. Section 223.5 thus focuses on the operative event of a purpose to deprive accompanied by the failure to take reasonable measures to restore.”7

The latter part of this passage gives rise to difficulty. The idea that a theftous intent should be capable of retrospective inoculation by a subsequent change of mind and restoration of the property “with reasonable promptness” raises the possibility of conduct constituting a crime subsequently being rendered non-criminal – a notion bristling with conceptual and policy problems. This is so unless it can be said a priori that a person cannot ever fail “to take reasonable measures to restore the property” until the passage of a certain period of time (which constitutes that within which the person “acts with reasonable promptness”).

21.5

This brings us to the more general question of whether the notion of failing to take “reasonable measures” to restore the property is sufficiently certain to constitute the test of criminality. On the face of it, it arguably is not. The tentative draft of Article 223.5 did contain a provision elaborating the concept as follows:

“In determining what are reasonable measures, account shall be taken of the following factors, among others: the nature and value of the property, the expense and value of the property, the expense and inconvenience of the restoration measures, and the reasonable expectation of compensation to the finder for expense and inconvenience borne by him. The following, among others, are reasonable measures which he believes would be more likely to result in restoration:


(a)


compliance with procedure prescribed by laws relating to the preservation and restoration of lost property;


(b)


delivery of the property to law officers for restoration to the owner; or


(c)


delivery of the property to the occupant of the premises or operator of the vehicle where the property was found for restoration to the owner.”8

This elaboration was deleted in the final version “to simplify the language of the section but not to make a change in the general sense of what is meant by


7

Id, p228. Contrast Article 376 of the Greek Penal Code, making it an offence for the finder of property to fail to report the finding to the owner or a public authority within fourteen days.

8

Model Penal Code, Article 206.5 (Tentative Draft 2, at 82–83 (1954)).



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“reasonable measures”.”9

21.6

While the Comment concedes that it could be argued that the more elaborate language of the tentative draft should have been provided for the guidance of judges or to settle as a matter of law the sufficiency of certain steps which the finder may take to restore the property, it takes solace in the fact that no recent statutory revision of criminal codes in the United States had spelt out in such detail what constitutes “reasonable measures”. Only North Dakota had required that the measures be “readily available” as well as “reasonable”. In its final form, Article 223.5 could constitute too vague a definition of the central element of a crime.

B. The Approach Involving a Minute Disposition of Several Specific Modes of Conduct

21.7

The English Theft Act, 1968 favours an approach involving a far greater degree of specifity than in the Model Penal Code. Section 3(1) provides that 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”. S5(4) provides as follows:

5.4“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.”

21.8

It is generally agreed that the obligation to make restoration referred to in 5(4) is an obligation in civil law. Glanville Williams points out that the “fiction” created by s5(4) can only apply to money in that there is no obligation to restore other property obtained by mistake until the contract is avoided by the mistaken person. S5(4), he says, should therefore have been confined by the draftsman to “money” and not to property.10 This is advanced as a further reason why the decision in Kaur11 is considered correct as it related to a pair of shoes, not to money.

21.9

A moral obligation is different from a legal obligation. Gilks12 was convicted of theft when, to his knowledge, he was mistakenly paid winnings by a book-maker on a horse he had not backed. There is general agreement that this was an incorrect decision. As the gaming transaction was unenforceable,


9

Model Penal Code and Commentaries, p229.

10

Williams, Theft and Voidable Title [1981] Crim L Rev 666 at 676.

11

Kaur v Chief Constable of Hampshire [1981] 1 WLR578. Supra para 15.17 et seq.

12

[1972] 3 All ER 280.



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there was therefore no obligation to repay and there had been no deception on Gilks's part.

21.10

S5(4) is clearly designed to deal with the problem created by cases such as Ashwell,13Middleton14 and Moynes v Cooper.15 As we noted when examining obtaining by deception, this gives rise to difficulty for those who regard appropriation as inconsistent with acquisition of ownership. Since it covers a case where P, the owner, by mistake has parted with his entire proprietary interest in the property,

“nothing that D does with it can be done without his authority or be a usurpation of or interference with P's rights,16 since he has none. Unless s5(4) is to be wholly ineffective, this must be one instance where the normal conditions for appropriation are inapplicable. Since P's proprietary interest is fictional, the appropriation of it must also be to some extent a fiction. The fiction is that P has not parted with his proprietary interest and, if he had not parted with it, he would not have consented to D's assuming his rights.”17

21.11

As to policy, the question arises as to whether the Theft Act has cast the


13

16 QBD 190 (1885).

14

LR 2 CCR 38 (1873).

15

[1956] 1 QB 439.

16

Cf Morris, [1983] 3 All ER 288.

17

Smith, para 81. At a Criminal Law Review Conference in 1989, Professor Smith summarised recent decisions on payments by mistake as follows:

(i)

Where a payment is made under a mistake of fact, the payer retains an equitable proprietary interest in it: Chase Manhattan Bank NA v Israel-British Bank (London) [1981] Ch 105 (Ch D, Goulding J); therefore the payment is property belonging to payer and may be stolen by payee: Shadrokh-Cigari [1988] Crim LR 465 – no need to rely on s5(4).

(ii)

Where P by mistake (whether or not induced by deception) draws a cheque or draft in favour of D, D cannot steal (or obtain by deception) the thing in action represented by the cheque or draft, because it is not and never can be property belonging to P: Shadrokh-Cigari, but the instrument when made belongs to the drawer and continues to belong in equity to him when delivered by mistake; and so may be stolen from him.

(iii)

Where D is sent a cheque by mistake and dishonestly appropriates it he may be convicted of stealing money if he dishonestly obtains cash for it but not if he endorses it, e.g., to pay his rent; though (obiter) he may then be convicted of stealing the cheque: Davis [1988] Crim LR 762.

(iv)

Where by mistake D is sent two cheques instead of one and appropriates both it is immaterial that it is not possible to identify one cheque as that sent by mistake – no different from an overpayment in cash: Davis [1988] Crim LR 762. What if D cashed one cheque and endorsed the other? No proof that he stole cash – he did not steal both and it cannot be proved that he stole the cashed cheque. But he certainly stole a cheque. [What about the decision in Tsang Ping-nam (1982) 74 Cr App R 139, PC, that it is not enough to prove that D committed a crime either on occasion (a) or on occasion (b)?]

(v)

Could Davis have been convicted of stealing the thing in action constituted by P's bank balance or right to overdraw? No problem of identifying the property stolen, though the occasion of the theft may still be in doubt. The only objection seems to be that the cheque was cashed or endorsed with the authority and consent of the owner – but that may be irrelevant: Philippou and Dobson.”

Many difficulties disappear once appropriation includes acquisition of ownership.



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net too widely. Recipients of property under any common mistake18 would probably be criminally liable if, on discovering the true facts they resolved not to make restoration. As Professor Smith observes:

“Whether such cases are wisely brought within the net of theft is questionable .... The difficulty is eventually, one of making a thief of a particular kind of debtor when debtors generally cannot steal. And it can involve the criminal law in some of the finest distinctions drawn in the civil law.”19

21.12

S179 1(b) of the New Zealand Crimes Bill provides that theft includes “dishonestly assuming any right of ownership of any property after obtaining possession or control of the property in whatever manner”.

21.13

S96(2) of the Australian Capital Territory Ordinance provides that “a person who has come by any property (whether innocently or not) without stealing it shall be taken to have adversely interfered with or usurped the rights of an owner of property ... if he or she later keeps or deals with it as the owner”.

The Policy Issue

21.14

We now must address the policy issue underlying this question. Should a finder or recipient of property under a mistake be guilty of theft? Is appropriation in such a case the same, morally and legally speaking, as an appropriation where the mens rea preceded the taking?

On one view it is quite different. There is an important distinction, it may be argued, between setting out to steal, on the one hand, and giving in to temptation to hold onto something which comes into one's possession innocently, on the other. On another view, however, there is no moral significance in this distinction. Life includes a wide range of temptations, some of which can be very pressing. It is true that where property is, as it were, thrust on a person by mistake, that person may find it hard to resist the temptation to hold onto it; but the temptation to steal in other specific contexts can be equally pressing.

21.15

Perhaps there is an underlying element of a distinction between misfeasance and nonfeasance here, where the failure to return goods is regarded as merely a sin of omission.20 The difficulty with this analogy is that a person cannot be convicted for the mere failure to return the goods: a positive resolve not to do so is necessary. Nevertheless, a mental resolve is somewhat less tangible than an externally measurable action and may tend to be regarded as something “less than” such action.


18

Cf the well-known cases of Norwich Union, Fire Insurance Society Ltd v Price, [1934] AC 455, Cooper v Phibbs, LR 2 HL 149 (1867) and Bell v Lever Brothers Ltd, [1932] AC 161.

19

Cf Smith, para 82.

20

As to analogous problems in the civil law, of Burnett, Conversion by an involuntary Ballee, 76 LQ Rev 364 (1960); see also the Sale of Goods and Supply of Services Act, 1980, section 47.



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21.16

Another reason for hesitating before making finders and recipients of property by mistake guilty of theft is that in many cases the owner has been guilty of some carelessness in losing the property21 or in transferring it by mistake. Historically the law has been in some respects slow to impose the full criminal sanction upon those who profit from the carelessness of others.

21.17

One possible via media would impose a lesser criminal sanction in cases of appropriation by finders and recipients of property by mistake. A difficulty with this approach is that it would seem necessary to distinguish between different types of case. For example, where the recipient of the property had in any respect, by action or omission, consciously induced the mistake, there would seem no reason for treating him more leniently. More generally, it may be objected that there is no need to preclude a lesser offence: the judge can always have due regard for extenuating circumstances when sentencing the transgressor.

21.18

One must not forget that it is already the offence of larceny under s1(2)(c) of the Larceny Act, 1916 to obtain possession of property with contemporaneous knowledge of the owner's mistake. The Theft Act simply extends the offence to circumstances where knowledge of the mistake is subsequent to the obtaining of possession and the property is retained notwithstanding this knowledge. Given the existing law, this is not an unreasonable extension of liability.22

21.19

We recommend the adoption of a provision similar to that in s5(4) of the Theft Act, to the effect that it shall be an offence to retain property obtained by mistake where there is an obligation, in civil law, to restore it.


21

Again, the civil law presents some interesting comparisons: see Goldring, The Negligence of the Plaintiff in Conversion, 11 Melbourne UL Rev 91 (1977); see also the Civil Liability Act, 1961, section 34(2)(d), and McMahon & Binchy, 543.

22

Roy Stuart points out that in larceny by mistake, larceny by a trick and obtaining by false pretences the accused obtains property (whether ownership or not) as a result of a mistake on the part of the owner. If he were not mistaken any pretences made would have been irrelevant. Clause 5(4) of the Bill, now s5(4) of the Theft Act, 1968, makes every case of obtaining by mistake theft, therefore all cases of obtaining by false pretences must be theft.



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21.16

Another reason for hesitating before making finders and recipients of property by mistake guilty of theft is that in many cases the owner has been guilty of some carelessness in losing the property21 or in transferring it by mistake. Historically the law has been in some respects slow to impose the full criminal sanction upon those who profit from the carelessness of others.

21.17

One possible via media would impose a lesser criminal sanction in cases of appropriation by finders and recipients of property by mistake. A difficulty with this approach is that it would seem necessary to distinguish between different types of case. For example, where the recipient of the property had in any respect, by action or omission, consciously induced the mistake, there would seem no reason for treating him more leniently. More generally, it may be objected that there is no need to preclude a lesser offence: the judge can always have due regard for extenuating circumstances when sentencing the transgressor.

21.18

One must not forget that it is already the offence of larceny under s1(2)(c) of the Larceny Act, 1916 to obtain possession of property with contemporaneous knowledge of the owner's mistake. The Theft Act simply extends the offence to circumstances where knowledge of the mistake is subsequent to the obtaining of possession and the property is retained notwithstanding this knowledge. Given the existing law, this is not an unreasonable extension of liability.22

21.19

We recommend the adoption of a provision similar to that in s5(4) of the Theft Act, to the effect that it shall be an offence to retain property obtained by mistake where there is an obligation, in civil law, to restore it.


21

Again, the civil law presents some interesting comparisons: see Goldring, The Negligence of the Plaintiff in Conversion, 11 Melbourne UL Rev 91 (1977); see also the Civil Liability Act, 1961, section 34(2)(d), and McMahon & Binchy, 543.

22

Roy Stuart points out that in larceny by mistake, larceny by a trick and obtaining by false pretences the accused obtains property (whether ownership or not) as a result of a mistake on the part of the owner. If he were not mistaken any pretences made would have been irrelevant. Clause 5(4) of the Bill, now s5(4) of the Theft Act, 1968, makes every case of obtaining by mistake theft, therefore all cases of obtaining by false pretences must be theft.



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CHAPTER 22: HUSBAND AND WIFE

22.1

What limitations, if any, should apply to the definition and prosecution of the offence of theft1 by one spouse from the other? Several possible strategies have to be considered.

In our discussion of the issue we think it reasonable to proceed on the basis that, where the spouses no longer are living together, the ordinary rules of theft should continue to apply.2 We also consider that these ordinary rules should continue to apply where one spouse takes (or otherwise steals) property when leaving or deserting or about to leave or desert the other spouse.3 So far as we are aware, there has been no suggestion that the liability imposed by the existing law to this effect has given rise to any difficulty in practice. Nor have we any objection to it in principle. Our discussion, therefore, will centre on whether the ordinary rules of theft should be further extended.

22.2

The first strategy for change would remove the present restrictions completely: one spouse would be capable of theft from the other, just as he or she would be from any person. In favour of this approach it may be argued that theft is no less serious or socially significant by reason of being committed against one's spouse. From the standpoint of the victim, relieving the transgressor from liability for theft or account of his or her marital status relative to the victim could well offend against the Constitution.4 Even within the family unit, the present law involves anomalies as between husband and wife and parent and


1

For present purposes we use this term in its consolidated sense.

2

Cf the Married Women's Status Act, 1957, section 9(3).

3

Cf id.

4

Cf Murphy v AG, [1982] IR 241 (Sup Ct), DPP v T, unreported CCA 27th July 1988. The Commission, in its Report on Rape, LRC 24, 1988, recommended that the exemption afforded a husband from prosecution for raping his wife be abolished. This is provided for in s5 of the Criminal Law (Rape) (Amendment) Act, 1990.



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child or as between in-laws.5

22.3

Against this, it may be argued that theft law is prudent and just in standing back a little (though not too far) from the inter-spousal relationship. The boundary lines as to spousal proprietal interests are notoriously blurred. Questions of consent to the appropriation of property can be complicated and uncertain. Moreover even where a spouse engages in petty theft -taking a pound note out of his or her partner's coat, for example – society may consider it an unwise policy to adjudge the transgressor a thief, and may prefer to leave this personal weakness to be dealt with by less strict means.

22.4

A possible compromise, proposed by Article 223.1(4) of the Model Penal Code is that it should be:

“no defense that [the] theft was from the actor's spouse, except that misappropriation of household and personal effects, or other property normally accessible to both spouses, is theft only if it occurs after the parties have ceased living together.”6

If this were to be acceptable, the definition of “household chattels” found in such legislation as the Family Home Protection Act, 1976 and the Judicial Separation and Family Law Reform Act, 1989 might prove useful.

22.5

A legislative prescription of a specific maximum monetary value for these chattels would, of course, remove much of the uncertainty7 but this would be a somewhat crude solution, in failing to distinguish between the respective economic resources of different families. An item worth £300 may well be trivial for one couple but considered a small fortune by another couple. Setting the figure closer to the true test of triviality for the first couple would deprive the poorer husband or wife of legal protection in cases of theft by his or her partner. Bringing the figure closer to the test relevant to the second couple would tend to expose more affluent couples to the intrusion of the law in cases where, for them, the item in question was clearly of trivial value.

22.6

Another approach, which has, broadly speaking, been adopted in England,8 would extend the ordinary rules of theft to all cases of theft by one spouse from another, by providing that proceedings are not to be instituted (save in cases where the spouses are not living together9) except by or with the consent of the Director of Public Prosecutions who would thus have a supervisory


5

Many civil law jurisdictions remove or reduce this anomaly by extending the range of exemptions to lineals and affines. Cf, e.g., the French Penal Code, article 380, the German Penal Code, section 247(2), the Greek Penal Code, article 378.

6

For consideration of the policy issues, see the Model Penal Code and Commentaries, pp161–162.

7

The problem of accurately assessing the value of old furniture, other household effects and jewellery, for example should not be understated. If criminal liability were to depend on this issue, it is easy to envisage frequent “battles of experts” between valuers, in the courts.

8

Theft Act 1968, section 30(4).

9

The English Act (section 30(4), proviso (a)(ii)) limits this proviso to cases where the spouse by virtue of any judicial decree or order, are under no obligation to cohabit.



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function which may be expected to be exercised with sensitivity and commonsense. The advantage with this approach is that it is not possible for legislation to prescribe in advance the kind of case where humanitarian or other considerations should prevail against prosecuting a spouse from stealing from another. We have already mentioned the case of a spouse fraudulently taking a pound out of the other spouse's coat pocket. This may be considered to be just the kind of case in which the exercise of professional discretion by the Director of Public Prosecutions would be a desirable pre-condition of prosecution.

22.7

As against this, it may be argued that for the legislature to take this step would involve a refusal to face the difficult issues at stake. Of course the Director of Public Prosecutions will be able to discharge this function, if thrust upon him by the legislature, but in doing so he would inevitably be called on to make, not merely humanitarian decisions, but also, on occasion value-judgments as to the propriety of the criminal law's extending to certain types of interspousal theft.10

22.8

On balance, we would recommend the enactment of a provision, similar to that in s30(4) of the Theft Act, to the effect that one spouse may be prosecuted for stealing from the other spouse but only by or with the consent of the DPP.


10

This may be particularly so in relation to the failure by one spouse to hand over money which he or she has agreed to give to the other. If a man gambles away all his wages on the way home from work and tells his wife he was mugged, so that she does not receive £80 to which she had (let us assume) a legal entitlement, the Director of Public Prosecutions would have to decide whether this type of conduct was a proper matter for prosecution. It is interesting to note the new discretion conferred by the Criminal Law (Rape) (Amendment) Act, 1990 on the Director of Public Prosecutions in respect of interspousal rape.



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CHAPTER 23: FRAUD

23.1

An offence of unlawful appropriation can be drafted in such a way as to ensure that all obtainings by fraud or deception will be theft. Whether or not an offence of dishonesty is recommended which would include appropriation by fraud or a distinct offence of obtaining by fraud is maintained, it will be necessary to examine and define what we mean by fraud or deception. We will first consider possible changes to the offence as it stands in Ireland, then the history and development of offences of deception in the English Theft Acts.

Obtaining by False Pretences

1. The Case for No Change

23.2

It may be argued that no change should be made to the present law. In contrast with the offence of larceny, which is the product of many centuries of judicial manipulation and distortion of its central concepts, the offence of obtaining property by false pretences is a good deal more straightforward, with much greater conceptual integrity.

Furthermore, the limitations in the scope of this offence represent considered legislative decisions as to how far the criminal law should penalise deceitful behaviour. Much of commercial life consists of a battle of wits, involving competition between people based on differing assessments of risk. Such assessments in turn are based on differing pools of information. It is only a limited range of business relationships which proceeds on the uberrima fides principle. While there may of course be debate as to whether s32 of the Larceny Act, 1916 (or s10 of the Criminal Justice Act, 1951) goes far enough, it is not a compelling argument merely to point to the limits of criminality prescribed by the sections and to characterise these limits as deficiencies in the law. It must be

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asked whether dishonest men and women are evading prosecution by reason of the inadequacies of the section. Certainly there has been little public disquiet with present laws, save, perhaps, in the area of fraudulent promises. Even on this issue, as we shall mention, the present limits are based on a defensible rationale.

23.3

The experience in England has been less than happy. Moreover, changes in technology have caused problems for the amended law which would not have been so serious had the amendments not been made. Thus, certain fraudulent conduct in relation to computers may more easily be charged as obtaining money by false pretences than as the offence of deception, since the latter may be considered to require proof that a person (rather than a machine) was actually deceived.

2. Changing “False Pretence” to “Deception”

23.4

Assuming that some changes in the present offence are desirable we consider first whether the expression “false pretence” should be replaced by “deception”. This change is made in the American Law Institute's Model Penal Code, in Article 223.3. It has also been made in England. There the Criminal Law Revision Committee were of the view that the word “deception” had “the advantage of directing attention to the effect that the offender deliberately produced on the mind of the person deceived, whereas 'false pretence' makes one think of what exactly the offender did in order to deceive. 'Deception' seems also more apt in relation to deception by conduct.”1

The element of impersonal communication in business transactions has greatly increased over the twenty-three years since the Criminal Law Revision Committee published its report. People transact a growing number of their daily commercial transactions with machines. To speak of deceiving a machine in a statute involves a metaphorical use of language which may result in the acquittal of a dishonest person who would be convicted under a test of “false pretences”. As the English Law Commission observed in 1987:

“It seems reasonably clear on the authorities that the element of 'deception' in the offences of deception in the Theft Acts involves the inducing of a state of mind in another person. For this reason 'deception' of a machine, by dishonestly misusing or tampering with it, would not be sufficient on its own to amount to a deception for the purposes of these offences.”2

23.5

As regards the Criminal Law Revision Committee's reasons for suggesting the change to “deception”, it may be argued that neither is compelling. Concentration on “what exactly the offender did in order to deceive”, rather than on the effect produced on the mind of the person deceived, may be no bad thing. It centres on the defendant's conduct, which is the essence of the offence, rather


1

Eighth Report, para 87.

2

English Law Commission, WP No. 104, Criminal Law: Conspiracy to Defraud, para 4.9 (1987).



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than on its efficacy, which is of course a necessary element in this offence (and most others) but which is secondary to, and dependent upon, the issue of the defendant's conduct. It may be debated whether “deception” is a more apt expression in relation to deception by conduct. The reason why such conduct is criminal is because, when analysed, it may be seen to contain an implied representation. If it lacks this element, the conduct, after, as before, the enactment of the Theft Act, 1968, will not, on one view, constitute an offence of this category. Using the expression “false pretence” may be considered to bring out this element into the open, and facilitate the jury's analysis. Why not simply use the word “fraud”?

It is difficult to express a strong opinion on one side or the other but, on balance, as we will be proposing the extension of the scope of the fraud offence, recommending the adoption of certain Theft Act offences and the creation of distinct offences relating to machines and computers, we recommend using the expression “deception” rather than “false pretences”. Above all, use of the word “deception” has given rise to no problem, of which we are aware, in practice and the expression has taken root in several other jurisdictions.

3. The Ingredients of Deception or Fraud

23.6

For convenience, the expressions, “fraud”, “false pretences” and “deception” will be interchangeable in the discussion which follows.

Perhaps the best way of bringing the policy issues to the fore is to quote Article 223.3 of the Model Penal Code:

“A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely:


(1)


creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; or


(2)


prevents another from acquiring information which would affect his judgment of a transaction; or


(3)


fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or


(4)


fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers or encumbers in consideration for the property obtained, whether such impediment is or is not valid, or is or is not a matter of



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official record.

The term 'deceive' does not however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.”

Several aspects of policy are highlighted by this provision, which need separate consideration.

A. Representations of Law

23.7

As may be seen, section 223.3 characterises as deception the creation or reinforcement of a false impression as to law. Section 15(4) of England's Theft Act, 1968 favours the same approach. Professor Smith states that

“[c]ertainly it seems desirable that misrepresentations of law should be within the terms of the Act. Consider the following cases:


(i)


D and P are reading a legal document and D deliberately misrepresents its legal effect. This would seem to be misrepresentation of law since the construction of documents is a question of law. If D does so with the object of leading P to pay money for the release of that right, this would seem to amount to obtaining by deception.


(ii)


P and his wife, D, have entered into a separation agreement whereby P covenanted to pay D an annual sum free of any deduction whatever. D, knowing that the true legal construction of the document is to the contrary, represents to P that this prevents P from deducting income tax. This is a misrepresentation of law and it would seem that D is guilty of obtaining the money (or at least that portion of it which represents the tax which ought to have been deducted) by deception.”3

23.8

In the United States, the Comment supporting Article 223.3 explains why this provision embraces misstatements of law:

“There are conflicting precedents on criminal liability for obtaining property by false representations as to relevant law. Liability has been denied on the ground that everyone is 'presumed' to know the law and that 'ordinary vigilance' would disclose the truth.4 It is not clear why contributory negligence of the victim should be significant when he is tricked by legal misrepresentation, while it is irrelevant for other


3

Smith, para 175.

4

Citing, inter alia, Stiefel, Note, Criminal Law: False Pretences: Misrepresentation of Law, 15 Cornell LQ 464 (1930).



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misrepresentations. The presumption of knowledge referred to is a way of stating that an offender cannot escape criminal liability by pleading ignorance of the scope or meaning of the criminal law or its applicability to the facts and circumstances of his conduct; it is an extraordinary misapplication of this fictional concept to use it to relieve an offender who did know the law and consciously misrepresented it in order to achieve personal gain at the expense of another. Even courts that exclude misrepresentations of law concede that the rule may be otherwise when a relation of trust and confidence is involved, or when foreign law is the subject of the deception, or when a misrepresentation of fact can be found implicit in the statement of a legal conclusion as when the actor states that he has done certain things which have the described legal consequence. Paragraph (1) renders such refinements unnecessary. Instead, liability is imposed whenever a defendant obtains property by a knowing misstatement of the law. Of course, a legal opinion as well as other statements in the course of bargaining, might be made with the understanding that the opposite party i