R v Cash
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 27 February 1985 |
| Judgment citation (vLex) | [1985] EWCA Crim J0227-1 |
| Date | 27 February 1985 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 6731/C/83 |
[1985] EWCA Crim J0227-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Russell
and
Mr. Justice Kennedy
No. 6731/C/83
MR. R. CHERRILL appeared on behalf of the Appellant.
MR. M. WARREN appeared on behalf of the Crown.
On 14 November 1983 at the Crown Court at Lewes, this appellant was convicted on 11 counts of handling stolen goods and was sentenced to 3 years' imprisonment on each count to run concurrently. Two other men were charged in the same indictment; Archibald ANDREW, who was convicted of two offences of burglary and four offences of handling; Anthony John ELLIOTT who pleaded guilty to two counts of burglary and one of obtaining property by deception.
The appellant was given leave to appeal against conviction by the full Court.
The case for the prosecution was that the appellant dishonestly handled goods stolen by Andrew, by Elliott and by other persons unknown in the course of a number of separate burglaries of dwelling houses which took place between July and October 1982 and January and 16 February 1983. Some of the proceeds of the burglaries were recovered by police officers on 25 February 1983, from a flat occupied by the appellant in Hove. Archibald ANDREW was a lodger in that flat. When arrested, the appellant declined to answer questions addressed to him by the police, and at his trial he elected to give no evidence.
However…….
However, the evidence was overwhelming that the goods set out in each individual count of handling were goods that had been stolen in the burglaries and, on 25 February 1983, were in the possession of the appellant. Archibald ANDREW was convicted of two of the burglaries and, together with the appellant, he was convicted of four offences of handling. There were no alternative counts against the appellant alleging burglary or theft.
In the forefront of counsel's submissions to the trial judge, which have been repeated before this court, is the contention that the prosecution failed to prove an essential ingredient of the offence of handling. The definition of the offence is to be found in Section 22 of the Theft Act 1968. It reads as follows:-
"(1) A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen goods he dishonestly receives the goods, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so".
Sub-section (2) provides that the maximum penalty for handling is 14 years' imprisonment, as opposed to the maximum penalty for theft which is 10 years' imprisonment.
The point….
The point taken by counsel is concerned with the words "(otherwise than in the course of the stealing)". He submits that before there can be a conviction for handling, the prosecution has to prove affirmatively that the defendant was not the thief or a party to the theft, and if that is not proved the charge of handling is not made out. It is submitted that the words "otherwise than in the course of the stealing", constitute an essential ingredient of the offence of handling and that a burden is placed upon the prosecution to prove this negative averment. Counsel develops his argument by submitting that in all cases where a person is found in possession of stolen goods, in the absence of any explanation from the defendant, there should be alternative counts, charging the defendant with theft or burglary (as the case may be) or alternatively handling. The Judge, he submits, should leave both counts for the jury's consideration and, in the event of a conviction on one count they should be discharged from returning a verdict on the alternative. In support of his argument, counsel referred us to R v Seymour [1954] 1 WLR 678, where Lord Goddard CJ said:
"There is a tendency nowadays where there is no positive evidence that a man stole goods, that is to say, no evidence of seeing him go into a shop or of running away or of finding his fingerprints, but he is found in possession of stolen property shortly after it was stolen so that it can be fairly said that he is in recent possession, to think that that only justifies a verdict of receiving and not of stealing. We tried to correct that view in Rex v Loughlin, the headnote to which reads: "Where it is proved that premises have been broken into and property stolen therefrom, and that very soon after the breaking the prisoner has been found in possession of that property, it is open to the jury to find the prisoner guilty of breaking and entering, and the jury should be so directed". The jury in that case had been directed that they should only find the accused guilty of receiving, and so we quashed the conviction. Similarly, where it is proved that property has been stolen and that very soon after the stealing the accused has been found in possession of the property, it is open to the jury to find the accused guilty of stealing and the jury should be so directed".
Mr Cherrill further draws our attention to a passage in the 5th Edition of Professor Smith's book "The Law of Theft" at paragraph 408:-
"Whatever the form of handling alleged, it must be proved it was done "otherwise than in the course of the stealing". This provision was obviously necessary if the….. if the great many instances of perfectly ordinary theft were not automatically to become handling as well. Thus, without the provision, virtually every instance of theft by two or more persons would have been handling by one or other or, more likely, both of them, since they would inevitably render mutual assistance to one another in the removal of the goods. Given the decision to keep handling as a separate crime, the provision was, then, necessary – but it adds further unfortunate complications to an already complicated offence".
It may be that the first sentence of that passage is unhappily worded, as will become apparent later in this judgment.
We turn to examine the question first of all simply in the context of the instant case. The prosecution relied on what is sometimes conveniently but inaccurately called the doctrine of "recent possession". If someone is found in possession of stolen goods soon after they have left the possession of their owner, and he is unable to give any or any reasonably credible explanation of how he came by them, it is open to the jury to infer that he is on the one hand guilty of theft (or burglary if they were stolen in the course of burglary) or on the other hand, guilty...
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