Anderton v Ryan

JurisdictionEngland & Wales
JudgeLord Fraser of Tullybelton,Lord Edmund-Davies,Lord Keith of Kinkel,Lord Roskill,Lord Bridge of Harwich
Judgment Date09 May 1985
Judgment citation (vLex)[1985] UKHL J0509-1
Date09 May 1985
CourtHouse of Lords
Anderton
(Respondent)
and
Ryan (A.P.)
(Appellant)
(on Appeal from a Divisional Court of the Queen's Bench Division)

[1985] UKHL J0509-1

Lord Fraser of Tullybelton

Lord Edmund-Davies

Lord Keith of Kinkel

Lord Roskill

Lord Bridge of Harwich

House of Lords

Lord Fraser of Tullybelton

My Lords,

1

I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Roskill and Lord Bridge of Harwich. I agree with them, and for the reasons given by them I would allow the appeal and answer the certified question (as revised) in the way that Lord Roskill proposes.

Lord Edmund-Davies

My Lords,

2

At the outset I address myself briefly to the peripheral question of whether on the established facts this appellant could have been convicted of the full offence of handling stolen goods. It is trite law that, as Darling J. said in Rex v. Sbarra (1918) 13 Cr.App.R. 118, 120: "The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and … that the defendant knew [that fact]." So in Rex v. Fuschillo [1940] 2 All E.R. 489, a conviction for feloniously receiving a substantial quantity of sugar (a rationed commodity) was upheld although, apart from the appellant's own statements, there was no evidence of the ownership of the sugar or of the fact that it had been stolen.

3

But whether or not the circumstances of a particular case are such that inferences of theft and of guilty knowledge can properly be drawn are questions of mixed fact and law in the former case and of fact in the latter. The conclusion arrived at by the magistrates in the present instance is thus expressed in their stated case:

"We were of opinion that the mere fact that [the appellant] believed the goods to be stolen was inconclusive in the absence of any evidence tending to show that the goods were, in fact, worth more than the £110 which [she] paid for them."

4

It followed from this unassailable finding that the magistrates could not thereafter proceed to convict the defendant of "handling stolen goods" contrary to section 22 of the Theft Act 1968. But the prosecution could not have foretold that such a finding would be arrived at; for example, the appellant might have given evidence and, both by what she said and by the manner in which she said it, convinced the magistrates that she more than merely suspected that the video recorder had been stolen and that, when she physically received it, she not only believed it to be stolen but also believed that it was in fact stolen. So some might think that the prosecution should have presented its evidence on the full offence and then awaited the outcome; but it is a matter of personal judgment upon which I express no opinion, and particularly as we know that on the attempted handling charge the defence elected to call no evidence.

5

The sole question raised by this appeal is whether the magistrates were right in dismissing the further charge of attempting to "dishonestly handle a video recorder, knowing or believing it to be stolen (value £500), contrary to section 1(1) Criminal Attempts Act 1981." The short and simple facts and the wording of the section are fully dealt with in the speech prepared by my noble and learned friend, Lord Roskill, and I shall not repeat them. I regard these facts as basically identical with those considered by your Lordships' House in Reg, v. Smith (Roger) [1975] A.C. 476, both cases involving consideration of the ingredients of a charge of attempted handling. It is true that in Reg. v. Smith (Roger) it was established that the goods had in fact been stolen at one time, whereas in the present case there was no direct evidence that the goods had ever been stolen and the prosecution rested its case simply upon what the defendant had told the police about her physical acts and her state of mind at the material time. In Reg. v. Smith (Roger) after being stolen the goods were taken into lawful custody and thereupon ceased to be stolen: see the Act of 1968, section 24(3). In the present case the magistrates were not satisfied that the recorder had ever been stolen. But, despite that distinction (an immaterial one, as I hold), were the facts of Reg. v. Smith (Roger) to recur today, in my judgment they should lead to the same conclusion as do the facts of the present case. In both cases the proper test is whether the defendant believed the goods to be stolen when he performed "an act which is more than merely preparatory to the commission of the offence."

6

In the present case the Divisional Court held that the absence of evidence of theft was immaterial to the charge of attempted handling. I think this was right, for either ( a) the recorder had been stolen, in which case the appellant was guilty of an attempt to receive it, since the fact that she was also guilty of the full offence of handling leaves unaffected her liability to conviction for attempted handling ( Webley v. Buxton [1977] Q.B. 481); or ( b) the recorder had not been stolen, in which case the appellant was, under the Act of 1981, guilty of attempted handling.

7

My Lords, in my judgment the Divisional Court came to the correct conclusion. If, on the contrary, the submission advanced on behalf of the appellant is right, the legislature has substantially missed its mark, for it was and is common knowledge that (to take as an example merely the facts of the present case) Parliament intended by the Act of 1981 that a person who dishonestly handles goods, mistakenly believing that they are stolen goods, should for the future be liable to conviction for attempted handling.

8

Section 1(4) provides: "This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence …" I shall later indicate why, in my judgment, the appellant clearly intended to handle stolen goods. She also took steps which were "more than merely preparatory" to the offence of handling, for in her belief that the goods were stolen she bought the recorder and received it into her custody. So she had the mens rea and, as far as she could and thought (though mistakenly), she committed the actus reus of the full offence of handling, though in reality a piece of the actus reus of handling "stolen goods" was missing.

9

But, since the recorder was not in reality stolen, are the facts nevertheless sufficient for the charge of attempted handling? In developing the view that the proper answer is "No," Professor Hogan has observed [1984] Crim. L.R. 584, 589-590:

"[Mrs. Ryan] attempted to handle non-stolen goods believing that they were stolen. That is not an offence known to the law and cannot be an offence to which section 1 of the Act applies. To convict Mrs. Ryan would be to contravene the principle of legality; a person, however evil his or her intentions may be, cannot be convicted unless he or she does, or fails to do, something which constitutes the actus reus of a defined crime. Mrs. Ryan got what she wanted for what she wanted was the video recorder at a very low price and in so doing did not handle stolen goods; if she is to be properly convicted of an attempt the requirement for proof that the goods were stolen still stands and cannot be satisfied by proof that Mrs. Ryan thought they were stolen."

10

I have set out this extensive quotation because Professor Hogan's article was cited and adopted by the appellant's counsel. I desire to make the following brief comments upon it:

(1) In my judgment the quoted passage reveals an unsound approach to the new law of attempts introduced by the Act of 1981, which by section 6(1) abolished for all purposes the common law relating to the offence of attempt. It is not right to say that the appellant "attempted to handle non- stolen goods." Her own words disclosed that what she attempted was to handle stolen goods, and to the best of her belief she accomplished that very act, an act which undoubtedly constitutes "an offence to which [section 1 of the Act] applies" (section 1(1)).

(2) I naturally accept that, what is intended must be something which, if accomplished, would have brought about the actus reus of a defined crime, but at the same time I bear in mind that, in ascertaining what was intended, section 1(3) requires that the facts are to be taken as if they had been as the actor believed them to be.

(3) Professor Hogan earlier said: "it can be accepted that Mrs. Ryan had mens rea." Then what mens rea did she have? In my judgment, clearly the mens rea of one intending to handle stolen goods, for from its attractively low price she "supposed" that the recorder was stolen and acting on that supposition she bought and received it. As Professor Glanville Williams neatly puts it, "If the defendant received a stolen article believing it to be clean, you would not say that he intended to receive a stolen article. So when he receives a clean article believing it to be stolen, you should not say that he intended to receive a clean article" ( 1985 N.L.J. 337).

11

My Lords, I hold that the appellant's case fails to have full and proper regard for the impact of subsection (2) and (3) of section 1 of the Act. The section wins no prize for lucidity, but its effect when considered in its entirety is that a person may now be guilty of attempting an offence even though the facts are such that commission of the full offence is impossible, provided that, "if the facts of the case had been as he believed them to be" (section 1 (3)(b)), he would be regarded as having made an attempt to commit that offence. In dealing with any attempt charge other than those expressly excluded by the Act, the Court has now to take the facts as the defendant believed them to be. If, on those supposed facts (as contrasted with supposed law), he would be guilty of an attempt, the Act makes him guilty of it. Taking the facts of the present case,...

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