R v Grainge
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCARMAN,MR. JUSTICE EVELEIGH |
| Judgment Date | 18 December 1973 |
| Judgment citation (vLex) | [1973] EWCA Crim J1218-3 |
| Docket Number | No. 2557/B/73 |
| Court | Court of Appeal (Criminal Division) |
| Date | 18 December 1973 |
[1973] EWCA Crim J1218-3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Scarman
Mr. Justice Chapman
and
Mr. Justice Eveleigh
No. 2557/B/73
MR. R. JOHNSTONE appeared as Counsel for the Appellant.
MR. R. MOORE appeared as Counsel for the Crown.
In fact the Court has already pronounced judgment in this case by allowing the appeal against conviction. Mr. Justice Eveleigh will now give in public the reasons for so allowing it.
On the 14th May, 1973 at Sheffield Crown Court the Appellant was acquitted of theft upon the Judge's direction but convicted of handling stolen goods. He was sentenced to six months' imprisonment suspended for two years and fined £150 payable in £5 instalments with six months' imprisonment in default. He was also ordered to pay a legal aid contribution not to exceed £100, payable after the payment of the fine, at £5 per week, the payment of these sums to commence after the payment of the fine of £100 imposed by the Knutsford Crown Court on the 3rd May, 1973. He now appeals against conviction and sentence.
On the 7th March, 1973 the Appellant, his co-defendant a man named O'Connor, and a third man entered a shop in Sheffield which sold office machinery and stationery. During the course of the visit O'Connor stole a pocket calculating machine valued at £59. The loss of the machine was soon noticed and the salesman went out of the shop into the street to search for the three men. Having seen them he noticed that one of the men passed the calculator to the Appellant. Eventually the salesman reported the matter to a police officer who then cautioned and arrested all three men and told them that he was taking them to the offices of the Criminal Investigation Department. On the way the officer noticed the Appellant pass the calculator across towards the direction of O'Connor's pocket. In evidence the Appellant said, "I never gave it a second thought. He is a friend of mine. I have known him two or three years. He has never been dishonest. I never even asked him about it. I just put it in my pocket. I thought it was a radio."
The Appeal against conviction is based upon grounds which may be summarised as follows:-
A. The learned Recorder misdirected the jury to the effect that suspicion that the goods were stolen was an alternative to knowledge or belief as an essential mental element, and failed to direct them that the test thereof was subjective and not objective.
B. The learned Recorder failed to direct the jury that knowledge or belief must be proved at the time when the goods were received.
The Recorder said, "…. you have got to decide whether there was any element of dishonesty about it and that ….. he handled it dishonestly, that at the time he knew or believed or suspected that the article had been stolen. That is what is referred to as guilty knowledge." He then referred to the circumstances from which knowledge could be inferred and continued, "….. so there are the three elements, the theft, the dishonest handling and the guilty knowledge, the knowledge or belief or suspicion "that the property was stolen when it was handled."
In our judgment this passage in its reference to suspicion was a misdirection. Before the Theft Act of 1968 it was necessary for the prosecution to prove that the accused knew that the goods were "stolen or obtained in any way whatever under circumstances which amount to felony or misdemeanour." Larceny Act 1916, Section 33(1). It is understandable that members of the jury might have different views as to the degree of certainty in the mind of an accused necessary to constitute knowledge. Furthermore, they might well have had difficulty in evaluating the evidence upon which proof of knowledge rested, and have asked, 'How can I know what was in the accused's mind?'.
These two considerations naturally led to directions being given with a view to indicating that absolute certainty was not necessary, R. v. White in 1859 1 F. and F. 665, and to indicating the appropriate facts in a given case which might lead to an inference of knowledge.
Negligence or even recklessness did not amount to knowledge, see R. v. Havard, reported in (1914) 11 Criminal Appeal Reports, page 2. Knowledge might be inferred from evidence that the accused wilfully shut his eyes to facts from which ordinary men would realise that the goods were stolen, but the inference is a process of reasoning based on the circumstances of the case not a presumption of law.
Section 22 of the Theft Act, 1968 , has clarified the...
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Zak v Regional Court of Bydgoszcz Poland
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