Theft and Handling Charged as Alternatives
| DOI | 10.1177/002201838705100105 |
| Published date | 01 February 1987 |
| Author | J. A. Coutts |
| Date | 01 February 1987 |
| Subject Matter | Comment |
COMMENT
THEFT
AND HANDLING CHARGED AS ALTERNATIVES
Adverse judicial reaction to the use of academic commentaries on
judicial decisions is perhaps rarer than it once was. In
R.
v.
Shelton
(1986) 150
J.P.
380,
however, Lawton L.J. described the case as “a
striking example of what can happen
if
counsel, after studying the
commentaries of academic writers, develop arguments which have
the allure of legal logic, but which, if taken too far, affront common
sense.” This judicial comment was aimed at the use sought
to
be
made of the conclusion reached by Professor Glanville Williams
Q.C. and Professor J.C. Smith Q.C. upon the decision of the
Divisional Court in
Stupleton
v.
O’Cullughun
[1973] 2
AI1.E.R.
782.
It would seem, however, that
it
was the judicial pronouncements in
that case and in
R.
v.
Devall[1984]
Crim.L.R.
428,
as much as the
academic comments thereon or the use sought to be made of them,
which turned the “elementary” or “humdrum” case of
R.
v.
Shelron
into one of some apparent difficulty.
There, a cheque book was stolen from an office and on the same
day three of the cheques were cashed. The indictment charged
theft, handling and obtaining by deception on that date. This
follows the practice of indicting for theft and handling in the
alternative, where the evidence might point to one or the other: see
R.
v.
Seymour
(1954) 38
Cr.App.R.
68.
In such circumstances,
if
the
judge thinks the evidence entitles the jury to return a verdict on one
or the other, both should be left to them, although he must make it
clear that, by virtue
of
section
22
of the Theft Act
1968,
a defendant
cannot be convicted of both theft and handling in relation to the
same property. If, however,
it
be thought by the judge that the
evidence points to one offence only, that alone should be left to the
jury, although he should not make the decision to do that until the
end of the defendant’s case, in view
of
the difficulties which
otherwise arise, as in
R.
v.
Plain
(1969)
51
Cr.App.R.
91.
It is in
relation
to
this second possibility that
R.
v.
Loughlin
(1951) 35
Cr.App.R.
69,
is important, since that case established that recent
possession of stolen goods may be evidence of theft.
61
To continue reading
Request your trial