In the Scottish Courts
| Published date | 01 July 1965 |
| Date | 01 July 1965 |
| DOI | http://doi.org/10.1177/002201836502900308 |
| Subject Matter | Article |
In the Scottish Courts
RESET-POSSESSION--CONNIV
ANCE
Clark v.
H.M.
Advocate
THE classic accounts of reset in Scots law insist
that
it is
fundamental to
the
crime
that
the
accused should have
possession of the stolen goods. When one adds to this
the
principle
that
there is no such thing as accession after
the
fact
in Scots law, it will appear
that
the
person who aids a thief to
dispose of stolen goods
but
does not himself have possession
of
the
goods is guilty of no
crime-he
is
not
guilty of theft,
because his assistance is given after
the
theft is completed
(unless of course he was party to an earlier conspiracy whereby
he agreed to help the thief to dispose of goods
the
latter was
going to steal), and he is not guilty of reset, because he never
has possession of
the
goods.
It
was probably in order to fill this gap
that
Lord
Justice-
Clerk Macdonald in his textbook (See Macdonald on
the
Criminal Law of Scotland, 5th edn., p.
67-the
passage first
appears in the edition of 1877) and in a charge to
the
jury
in
H.M.
Adv. v. Browne in 1903 (6F(J) 24, 26) extended
the
definition of theft to include "being privy to the retaining of
[stolen] property" even where
the
accused "never laid a
finger on
the
property stolen".
In
Browne
Lord
Macdonald
told
the
jury
that:-
".
. . it is not necessary according to law
that
the
actual
property which is said to have been received guiltily has
ever passed into
the
personal possession of the receiver at
all.
If
a
man
steals a bundle of notes
out
of a
man's
pocket, and after
that
informs another man
that
he has
got these notes,
that
he has stolen them, or if
the
other
man
saw him stealing
them
and
knew
that
they were
stolen,
then
if the other man connived at it remaining in
the
possession of
the
thief or being
put
in any place for
safe custody, such as hiding it in a cupboard, he is guilty
201
CL--4
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