Handling stolen goods
From CrimeLine from Andrew Keogh
Relationship between handling and theft
CPS Theft Acts, Incorporating the Charging Standard: It is sometimes difficult to show whether a person in possession of stolen goods is a thief, or a handler of goods that have already been stolen. Theft and handling stolen goods may be charged in the alternative. If the evidence clearly points to theft by the defendant, it would not be appropriate to add a further charge of handling.
Handling stolen goods contrary to Section 22 of the Theft Act 1968
Section 22 of the Theft Act 1968 provides:
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.
The offence of handling stolen goods is a single offence. However, there are two limbs to the offence:
- Dishonestly receiving stolen goods
- Dishonestly undertaking or assisting in the retention, removal, disposal or realisation of stolen goods by or for the benefit of another person, or arranging to do so.
A person guilty of handling stolen goods shall on conviction on indictment be liable to imprisonment for a term not exceeding fourteen years."
Stolen goods
Section 34(2)(b) states that goods includes money and every other description of property, except land, and includes things severed from the land by stealing.
'Stolen goods' means goods which have been stolen (contrary to s1) or obtained by deception (contrary to s15) or by blackmail (contrary to s21): s24(4).
Goods 'stolen' in a foreign country (including Scotland and N. Ireland) are stolen goods if they were appropriated or obtained abroad in such a way as to satisfy the requirements of ss 1, 15 or 21 and the stealing was criminal by the law of the foreign country in question: s24(1).
When goods cease to be stolen
The goods must not only have been stolen, but must also remain stolen at the time of the handling. Section 24(3) provides that no goods which have been stolen are to be regarded as having continued to be stolen after one of the following events has occurred:
- After they have been restored to the person from whom they were stolen;
- or to other lawful possession or custody.
After the person from whom they were stolen and any other person claiming through him have otherwise ceased as regards those goods to have any right to restitution in respect of the theft.
Proceeds of stolen goods
References to 'stolen goods' include the proceeds of dealings with such goods by the thief or a handler.
Section 24(2) Theft Act 1968: provides that references to stolen goods:include, in addition to the goods originally stolen and parts of them (whether in their original state or not):
- (a) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of the thief as being the proceeds of any disposal or realisation of the whole or part of the goods stolen or of goods so representing the stolen goods; and
- (b) any other goods which directly or indirectly represent or have at any time represented the stolen goods in the hands of a handler of the stolen goods or any part of them as being the proceeds of any disposal or realisation of the whole or part of the stolen goods handled by him or of goods so representing them."
Forms of handling
The definition of the offence in section 22(1) actually comprises 18 different forms of handling:
- (a) Receiving
- (b) Arranging to receive
- (c) Undertaking the retention, removal, disposal or realisation of stolen goods for the benefit of another (four forms).
- (d) Assisting in the retention, removal, disposal or realisation of stolen goods by another (four forms).
- (e) Arranging to undertake or assist in the retention, removal, disposal or realisation of stolen goods by or for the benefit of another (eight forms).
Otherwise than in the course of the stealing
Section 22(1) states that the handling must have been 'otherwise than in the course of the stealing'. This refers to the stealing by which the goods originally became stolen goods and means that the original thief is not guilty of handling so long as the stealing continues, nor is one of joint thieves, even in respect of the assistance he gives to the other or others. However, once the course of the stealing has ended, the original thief of the goods can be convicted of handling them.
Knowledge or belief that goods were stolen
Section 22(1) Theft Act 1968: The accused must either know or believe that the goods are stolen at the time of the act of handling alleged.
It must be proved that the accused knew or believed that the goods were stolen. The accused may be said to know that goods are stolen when someone with first hand knowledge - such as the thief, tells him. Belief is something short of knowledge. Thus an accused will believe that the goods are stolen if his state of mind is such that, with the knowledge he has, there can be no other reasonable conclusion except that the property is stolen. If, despite the circumstances, the accused still refuses to believe what should be obvious, this still amounts to a belief that the goods are stolen. Suspicion that goods are stolen is not enough, even when coupled with the fact theat an accused shut his eyes to the circumstances - although those matters may be taken into account by a court when deciding whether or not an accused had the necessary knowledge or belief. Mere suspicion alone is however not sufficient.
R v Hall [1985] 81 Cr App R 260
"I cannot say I know for certain that these goods are stolen, but there can be no other reasonable conclusion in the light of all that I have heard and seen."
“Belief… is something short of knowledge. It may be said to be the state of mind of a person who says to himself: “I cannot say I know for certain that these goods are stolen, but there can be no other reasonable conclusion in the light of all the circumstances, in the light of all that I have heard and seen”. Either of those two states of mind is enough to satisfy the words of the statute. The second is enough (that is, belief) even if the defendant says to himself: “Despite all that I have seen and all that I have heard, I refuse to believe what my brain tells me is obvious”. What is not enough, of course, is mere suspicion. “I suspect that these goods may be stolen, but it may be on the other hand that they are not”. That state of mind, of course, does not fall within the words “knowing or believing”.” See also: Knowing or believing
Proof of knowledge or belief
Section 27(3) Theft Act 1968: provides that the following evidence (which would not otherwise be admissible under the law of evidence) is admissible for the purpose of proving that the accused knew or believed the goods to be stolen goods:
- Evidence that he has been involved in handling stolen goods from any theft within the last 12 months; and
- evidence that he has been convicted of theft or handling stolen goods within the last five years.
Dishonesty
Section 2 Theft Act 1968: A person's appropriation of property belonging to another is not to be regarded as dishonest:
- (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
- (b) if he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it; or
- (c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
A person's appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
In assessing whether dishonesty can be proved, you should apply the twofold test set out in the case of (Ghosh, R. v [1982] EWCA Crim 2 (05 April 1982); 75 CR App R 154). Remember that a jury will have to consider the same two tests before they are entitled to conclude that an accused was dishonest:
- Firstly, according to the ordinary standards of reasonable and honest people, was what was done dishonest?
- Secondly, if it was dishonest by those standards, did the accused realise that reasonable and honest people would regard his conduct as dishonest?
If the answer to either of these two questions is no, a prosecution will fail.
Case law
Forsyth, R v
Forsyth, R v [1997] EWCA Crim 751 (17th March, 1997)
- It is beyond question that even great suspicion is not to be equated with belief. Ever since the judgment of Lord Widgery CJ in Atwal v Massey [1971] 56 CAR 6, references to suspicion in exegesis of the word “believing” in section 22 of the Theft Act have given rise to difficulty. In that case Lord Widgery emphasised that the question was a subjective one and he posed it in these terms:
- "... was the appellant aware of the theft or did he believe the goods to be stolen or did he, suspecting the goods to be stolen, deliberately shut his eyes to the consequences?"
- But as Lord Justice James said in Griffiths [1974] 60 CAR 14:
- "There is a danger in the adoption of the passage cited from the judgment in Atwal v Massey as the direction to the jury unless great care is taken to avoid confusion between the mental element of knowledge or belief and the approach by which a jury may arrive at the conclusion as to knowledge or belief. To direct the jury that the offence is committed if the defendant, suspecting the goods were stolen, deliberately shut his eyes to the circumstances as an alternative to knowing or believing the goods were stolen is a misdirection. To direct the jury that, in common sense and in law, they may find that the defendant knew or believed the goods to be stolen because he deliberately closed his eyes to the circumstances is a perfectly proper direction."
- Lord Justice James thus stressed the difference between evidence from which a jury might infer belief and their being directed that shutting the eyes to circumstances of suspicion is equivalent to belief. In Moys [1984] 79 CAR; 79 Cr App R 72, at 76 at page 72 this court had to consider a direction which included the passage:
- "Thirdly, the prosecution has to satisfy you so that you are sure that at the time the horse came into his possession the defendant knew or believed that it was stolen. “Believed” in that sense means that he suspected very strongly that it was stolen and shut his eyes to that possibility altogether ..."
- The court held this to be a misdirection. The judge had told the jury that suspicion coupled with a deliberate shutting of eyes was not merely an alternative but was equivalent to belief. That was incorrect and a material misdirection. Lord Lane, after reviewing the cases referred to in Griffiths and the case of Grainge [1973] 59 CAR 3 said at page 76 that mistakes in this branch of the law were frequent and suggested a direction in these terms:
- "The question is a subjective one and it must be proved that the defendant was aware of the theft or that he believed the goods to be stolen. Suspicion that they were stolen, even coupled with the fact that he shut his eyes to the circumstances, is not enough, although these matters may be taken into account by the jury when deciding whether or not the necessary knowledge or belief existed."
R v Lisa Burroughes (29th November 2000)
R v Lisa Burroughes (otherwise Woodrow)
10. The offence of which the appellant was convicted is a statutory offence, so it is important to look first at the words of section 22(1) of the Theft Act 1968 which defines the offence. So far as material those words read-
- "A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen he .... dishonestly undertakes or assists in their retention .... by or for the benefit of another person....."
11. In R v Brown [1970] 1 QB 105 cigarettes and foodstuffs were stolen from a cafe in a burglary. Next day the stolen items were found at Brown's flat, the foodstuffs being in a refrigerator and the cigarettes hidden in a wardrobe. When the police were searching, and had found only the foodstuffs, Brown told them to "get lost". He was arrested. The count of which he was convicted alleged handling by dishonestly assisting in the retention of the stolen goods. The thief had given evidence at the trial that he had brought the stolen goods to Brown's flat, had hidden the cigarettes in the wardrobe and had told Brown where they were. Brown, he asserted, knew that they were stolen. On the assumption that before the police arrived Brown knew that the goods were in his wardrobe and were stolen the Court of Appeal accepted at page 108 that if he had said nothing, that silence could not amount to assisting in the retention of the goods within the meaning of section 22(1). The court went on to accept that the mere failure to tell the police coupled with the words "get lost" did not in itself amount to assisting in the retention of the goods, but those matters -
- "did afford strong evidence of what was the real basis of the charge here, namely, that knowing that they had been stolen, he permitted them to remain there or, as it has been put, provided accommodation for these stolen goods in order to assist (the thief) to retain them. To that extent ... this direction was incomplete. The Chairman should have gone on to say : "but the fact that he did not tell the constable that they were there and said 'get lost' is evidence from which you can infer, if you think right, that this man was permitting the goods to remain in his flat, and to that extent was assisting in their retention by (the thief)""
12. Having indicated that a further direction was required, the court then went on to decide, on the facts of the case, that once the thief was believed it necessarily followed that Brown was assisting in the retention of the goods by housing them, providing accommodation for them, permitting them to remain there, and so by the application of the proviso to section 2 of the Criminal Appeal Act 1968 as it then stood the appeal was dismissed.
13. The decision in Brown was applied in Pitchley [1973] 57 Cr App R 30 where a son gave to his father 150 which he had stolen. At that time the father accepted that the money had been innocently obtained, and paid it into a Post Office account. Two days later the son admitted that it was stolen money, and the father took no action until four days later when the police arrived. He told them all he knew. The question which the court asked itself at page 35 was -
- "Did the conduct of the appellant between the Saturday (when he learnt that the money was stolen) and the Wednesday (when the police arrived) amount to an assisting in the retention of this money for the benefit of his son Brian?"
14. In Pitchley it was clear on the evidence that the appellant was permitting the money to remain under his control (leaving aside the problem of whether the money remained identifiable once paid into the account) so, the court said, it was clear from what was said in Brown when dealing with the proviso that the court regarded such permitting as sufficient to constitute assisting in retention. Cairns LJ said at page 37 that it is important to realise that what was said in Brown as to the only inference which could be drawn-
- "was in relation to a situation where there was no evidence that anything active had been done by the appellant in relation to the goods."
15. In Sanders [1982] 75 Cr App R 84 stolen goods found their way to a garage owned by the appellant's father where the appellant used them. The father was charged with handling stolen goods by receiving them, and the appellant with assisting in their retention. Dunn LJ, giving the judgment of the court, said at page 86 - "The mere use of goods knowing them to be stolen is not enough. It must be proved that in some way the accused was assisting in the retention of the goods by concealing them, or making them more difficult to identify, or by holding them pending their ultimate disposal, or by some other act that was part of the chain of the dishonest handling."
16. Kanwar [1982] 75 Cr App R 87 concerned stolen goods brought to the appellant's home by her husband when she was in hospital. She arrived home during a police search, and, having asserted that there was no stolen property in the house, told lies about individual items, claiming that she had bought them legitimately. She was convicted of assisting in the retention of the goods for the benefit of her husband, and that conviction was upheld. At page 89 Cantley J, giving the judgment of the court, said -
- "In the case of Thornhill unreported, 15th May 1981, and Sanders it was held that merely using stolen goods in the possession of another does not constitute the offence of assisting in their retention. To constitute the offence something must be done by the offender, and done intentionally and dishonestly, for the purpose of enabling the goods to be retained. Examples of such conduct are concealing or helping to conceal the goods, or doing something to make them more difficult to find or identify. Such conduct must be done knowing or believing the goods to be stolen and done dishonestly and for the benefit of another.
- We see no reason why the requisite assistance should be restricted to physical acts. Verbal representations, whether oral or in writing, for the purpose of concealing the identity of stolen goods may, if made dishonestly and for the benefit of another, amount to handling stolen goods by assisting in their retention within the meaning of section 22 of the Theft Act 1968.
- The requisite assistance need not be successful in its object. "
17. There was then a quotation from the direction given by the trial judge to the jury in that case, part of which reads -
- "..... you must be satisfied, before you can convict her on either of these counts, not only that she knew or believed the goods to be stolen, but that she actively assisted her husband in keeping them there; not by just passive acquiesence in the sense of saying: 'what can I do about it?' but in the sense of saying: "How nice to have these things in our home although they are stolen goods""
18. Cantley J continued at page 90 - "In so far as this direction suggests that the appellant would be guilty of the offence if she was merely willing for the goods to be kept and used in the house and was thinking that it was nice to have them there, although they were stolen goods, it is a misdirection."
19. In the circumstances of that case the misdirection was held to be ineffective. The decision in Kanwar should not be understood. It must not be read as suggesting that being willing to keep goods in a location which the defendant controls cannot constitute assisting in their retention.
20. Commenting in the Criminal Law Review on the decision in Kanwar Professor Sir John Smith said at 1982 CLR 532
- "A refusal to answer questions might also, in fact, have assisted the husband to retain possession but it would not have amounted to an offence: see Brown .... this depends however on the fact that an omission to act does not constitute an offence unless the criminal law recognises a duty to act; and it does not recognise any general duty to answer questions put by the police or any one else: Rice v Connolly [1966] 2 QB 414. The positive act of deception is entirely different. Merely to use the stolen goods does not in itself constitute an offence for the obvious reason that it does not necessarily amount to assistance in the retention of the goods. "
21. The author then expressed doubts as to whether an attempt to assist which was unsuccessful could accurately be described as assisting.
22. In Bloxham [1983] 1AC 109 the House of Lords made it clear that what the handler undertakes must be an activity for the benefit of another person, and what he or she assists in must be an activity undertaken by another person. An activity is not for the benefit of someone else just because it happens to benefit him, but only if it is undertaken for his benefit. As Brown and Pitchley make clear the relevant act can be passive.
23. As to what is required to establish the guilt of a person in the household of a thief or handler who keeps goods in the home, Professor Griew, in the 6th Edition of his work on the Theft Acts states at page 230, paragraph 14-24 -
- "What is required is the doing of something, intentionally and dishonestly, for the purpose of enabling goods to be retained, such as concealing them or telling lies (not necessarily successful lies) to the police to prevent their being found."
24. In the current (9th) edition of Smith and Hogan on Criminal Law Sir John Smith, having referred to Brown, says at 641 -
- "If D's premises are used .. to house the goods and D allows them to remain there he can properly be said to be assisting in their retention just as plainly as if he had initially given permission. What is important here is that D has control of the premises and has chosen to allow their use for the storage of stolen goods."
R (on the application of) v Director of Public Prosecutions
Wilkinson, R (on the application of) v Director of Public Prosecutions [2006] EWHC 3012 (Admin) (22 June 2006) This appeal concerned the increasingly common practice of the Crown Prosecution Service to charge offences under section 329(1) Proceeds of Crime Act 2002 as opposed to handling stolen goods. Held: No doubt when that offence was created in the 2002 Act it was in the context of legislation directed primarily at money laundering and matters of serious criminality. It is an offence which in one sense is easier to prove than that of handling stolen goods because the mens rea is one of "knowing or suspecting" that the property constituted or represents a benefit from criminal conduct rather than "knowing or believing" which applies in section 22 of the Theft Act 1968. The 2002 Act should be resorted to only in "serious cases", and that is clear from the CPS's own guidance. If an offence was inappropriately charged it was for the court to express that view to the Crown and encourage them to charge a lesser offence. But encouragement is where it would stop. It is ultimately a matter for them. It is not for the divisional court to interfere with the proceedings before the magistrates' court, and this case does not raise even arguable grounds. Satellite litigation is to be discouraged.
Hogan v The Director of Public Prosecutions (21 February 2007)
Hogan v The Director of Public Prosecutions [2007] EWHC 978 (Admin) (21 February 2007)
"A person who acquires property which he knows to be stolen, but acquires it for full consideration, will not be guilty under this part of the Act".
15. I turn to the question of the interpretation of the Act. The scheme of this part of the Act turns on the definition of "criminal property" set out in section 340. Rather interestingly, the definition turns in part on the state of mind of the alleged offender. Essentially, if the person acquires or keeps property whilst knowing or suspecting it is stolen, it is "criminal property", provided the other ingredients of the definition are made out. However, once the property is acquired by someone who does not have that knowledge or suspicion, the property ceases to be criminal property, whatever its origin. So far so good.
16. However, what is also interesting about the scheme of this part of the Act is the effect of section 329(2)(c). Wherever the burden lies and whatever may be the consequential standard of proof, if criminal property is acquired for "adequate consideration", then no offence is committed under the Act. I emphasise that this requirement applies to criminal property. In other words, if the court concludes that adequate consideration has been given for the acquisition of property, then no offence is made out under the Act, even if the defendant who has acquired the property knows that it was stolen. I pause to observe that, in circumstances like that, other offences may very well be made out, but they will not be offences under this part of the Act. I reach this conclusion as a matter of straightforward statutory interpretation.
17 What is the meaning of "adequate consideration"? This must be a question of fact in each case. In deciding it, my view is that a court is entitled -- indeed has an obligation -- to look at all relevant circumstances drawn from the evidence. But the question is an objective one. It is a discrete question from the question of knowledge, belief or suspicion by the defendant as to whether the property constitutes a benefit from criminal conduct. Thus, the question is not whether all relevant circumstances may be brought to bear on the adequacy of consideration. They may. The point is that this is a separate question from the state of mind of the defendant. It is an inevitable consequence of the way this Act is drawn that a person who acquires property which he knows to be stolen, but acquires it for full consideration, will not be guilty under this part of the Act.
Where would we be without bailii please DONATE to BAILII
CrimeLine is sponsored by Keogh Solicitors. CrimeLine is published by CrimeLine Training Limited (Company No. 06748394)
