Handling / Receiving Stolen Property
A person is guilty of handling stolen property if otherwise than in the course of stealing he or she knowing the property was stolen or being reckless as to whether it was stolen, dishonestly receives or arrange to receive it or undertakes or assists in its retention, removal, realization, disposal by or for the benefit of another person or arranges to do. In effect, the offence is committed when any of the aspects of handling or dealing with stolen property is done with the requisite knowledge.
The requirement for dishonesty is the same as that in respect of theft. If a person handles stolen goods honestly believing it to be his, then the offence is not committed. In the case of handling or dealing with stolen property, this must generally be for the benefit of another.
The mental element has two elements. The person must act dishonestly without a claim of right. The person must know or be reckless as to whether the property has been stolen.
Reckless is defined as disregarding a substantial risk that the property handled is stolen. A substantial risk is a risk of such a nature and degree that having regard to the circumstances in which the person acquired the property and the extent of the information then available to him or her, it disregard involves culpability of a high degree.
It must be found the person averted to the risk. If in the circumstances, any reasonable person would conclude the property was stolen or is reckless to such effect this would raise a presumption that the person must have so known or been reckless. It would be a matter for the person concerned to prove that he did not know or was not reckless in relation to the risk. If there is a reasonable doubt as to the defendant’s knowledge or state of mind, he should be acquitted.
Possessing Stolen Property
It is an offence to possess stolen property unlawfully and without excuse, knowing the property was stolen or being reckless as to whether it was not stolen. See the sections on the sale of goods in relation to sale with lawful authority.
It is provided that where a person is in possession of stolen property in such circumstances including purchase at below market value, that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, that he shall be taken for these purposes to have known that fact or to have been so reckless, unless the court or jury are satisfied that there is reasonable doubt.
There is a number of different ways in which the offence may be committed.
- receiving or arranging to receive stolen property,
- undertaking or assisting in its retention by another person.
- undertaking or assisting in its removal by another person.
- undertaking or assistance in its disposal by another person.
- undertaking or assisting in its realisation by another person.
In each of the above cases, undertaking or assisting in the retention, removal, disposal, or realisation for the benefit of another person is also guilty of an offence. Arranging to do any of the above also constitutes an offence.
A person guilty of handling stolen property etc. is liable on conviction on indictment to imprisonment for up to 10 years or a fine or both. The level of punishment may not be higher than for the principal crime.
Position of Accused
The accused must be aware of the existence of the property. Possession need not be physical. Physical custody without the requisite intent is not possession and is insufficient. Constructive possession may suffice. This will be made out here there is some element of control over the thing concerned.
In the case of retention, removal, disposal, realisation or arranging, the accused must act for the benefit of another person. Otherwise, the thief would be a handler as well.
Retention involves a positive decision to keep or retain control of the property. A person may become aware that they are stolen and retention is thereby an offence.
Assisting in the retention of property may involve any act which facilitates another in maintaining possession of the property. For example, a collaborative lie that the property was purchased may suffice. The mere fact of using the property does not necessarily constitute assistance in retention.
Property includes all property, real and personal including intangible property. The legislation applies to goods and property stolen outside the state. It must be shown that it was stolen in accordance with the equivalent law in the foreign jurisdiction.
The principal offender need not necessarily be convicted or identified. However, there must be proof that the principal offender stole the property or unlawfully obtained it. A person may be tried and convicted whether the principal offender has or has not been previously convicted or if he is not amenable to justice.
Property directly or indirectly representing or which has represented the stolen property in the hands of the person who stole it as being the proceeds of the disposal or the realisation of the disposal or representing it or any property which indirectly or directly represents or has represented the stolen property in the hands of a handler or possessor of the stolen property or any part of it as being the proceeds of any disposal or realisation of the whole or any part of the subject property handled, possessed by him or her, or property representing it, is also covered by the offence.
The property must be stolen at the relevant time. If it is subsequently restored and no longer stolen, they cease to be stolen property. This may happen when the goods are reclaimed by authorities. A person may be convicted of handling or dealing with stolen property notwithstanding that the person who committed the offence has not been convicted or may never be convicted.
Where a person receives or arranges to receive property or undertakes to assist in its retention, removal, disposal, or realisation for the benefit of another or arranges to do so in such circumstances that it is reasonable to conclude that the person either knew that the property was stolen or was reckless as to whether it was stolen, he is taken for the purpose of the legislation to have so known or have been so reckless unless the court or the jury as the case may be. is satisfied having regard to all the evidence that there is a reasonable doubt as to whether or not he knew or was so reckless.
Receipt of stolen property requires that the person takes possession of it. This is similar to the concept of possession utilised in the law of personal property. See our separate guides in that regard.
The person must know of the existence of the property and that he has custody and possession of it. A person may be in possession of property that is in the custody, i.e. immediate physical control of another. This would be the case if the person in whose physical possession the goods were, was acting on behalf of the defendant.
A person may be in the physical custody of property without being aware that the property, e.g. a car, contains stolen property. In that case he would not be in possession of the stolen property.
Retention and Removal
Retention of property implies that it is kept or possession is retained. An offence is committed by undertaking or assisting in the retention or control of stolen property. Retention covers continuing in possession of a property that one becomes aware is stolen.
It must be shown that the defendant committed some action rather than that he merely did nothing. It may amount to retention if a person becomes aware that the stolen property is in his possession or that of another and the person assisted the other in retaining them.
Removal refers to any moving from one place to the other. Disposal and realisation involve the sale or exchange of goods. The disposal would include the destruction of the goods. Arranging involves an agreement in relation to stolen property or agreeing to its retention, removing or realisation.
Possession of Cash
It is an offence to possess monies of not less than €5,000 in circumstances giving rise to a reasonable interference that he or she possesses or controls the assets concerned for the purpose in connection with the commission, preparation, facilitation or instigation of any of a number of offences including:
- theft and fraud offences
- public order offences
- drug trafficking offences
It is a defence for a person to prove that at the time of the alleged offence, he did not possess nor control the assets concerned for the above purpose.
The offence is subject on conviction on indictment to imprisonment up to five years and an unlimited fine.
Money includes coins, notes in any currency, bank drafts, postal orders, certificates of deposit and other similar instruments easily convertible into money.
Information about Stolen Property
It is an offence to withhold information in relation to stolen property. Where a member of Garda Síochána has reasonable grounds for believing that an offence consisting of stealing or handling property has been committed, finds any person in possession of property and has reasonable grounds for believing the property includes or may include property on the above categories or part of it and informs that person of that belief, the member of Garda Síochána may require the person to give an account of how he came by the property.
The Gardai may only ask questions if they have grounds to believe property is stolen. It must be linked to a specific instance. If the defendant fails to account for his possession of the property without reasonable excuse or gives misleading information, the offence is committed. He must first have been informed in ordinary language of the consequences of failure. If the person complies with the request, information may not be used against him or his spouse for other criminal proceedings other than for failure to account.
A person who fails without reasonable excuse to give such account or gives false or misleading information knowingly is guilty of an offence. It is subject on summary conviction to a fine of up to €5000 or imprisonment up to 12 months.
The member of an Garda Síochána member must tell the person concerned in ordinary language of the effect of the failure. Information given in compliance with the requirement is not admissible in evidence against the person or his spouse, other than for proceedings under the abovementioned offence, i.e. failure to give or giving false information.