Section 27 of the Theft Act 1968

Case: Handling Stolen Goods contrary to s27 of Theft Act 1968

1. Lisa statement

Lisa said that Debbie always sorted those things out. This is a question of inference that Debbie handled the stolen goods. It is direct evidence that Debbie is involved in handling stolen goods. But this was not given during interview with DC Steve when the tape machine was switched on. The prosecution will try to adduce this statement as evidence as it is relevant for the facts in issue. But DC Steve has not cautioned Lisa that what she said will be adduced as evidence. Now Lisa is denying that she made this statement. Lisa may be cross-examined about an earlier statement of her that is inconsistent if she makes testimony in Court. s119 of Criminal Justice Act 2003 provides that if a person gives oral evidence and he admits making a previous inconsistent statement, or a previous inconsistent statement made by him is proved by virtue of s3, 4 or 5 of the Criminal Procedure Act 1896 the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible. But she told the prosecution lawyer she never made this statement. Before a prior inconsistent statement can be adduced under s4 Lisa must be told the substance of the statement, the place, the time and the person to whom it was made. After the witness will be given the chance to deny having made the prior inconsistent statement or explained away any apparent inconsistency, the prior inconsistent statement is introduced. The person to whom made will be called. S4 allows proof that a previous inconsistent statement was made.[3] S4 is for oral statement whereas s5 is for written statement.[4]

DC will testify the statement made to him after the interview by Lisa.

It is to noted that what Lisa told to DC Steve will be a form of hearsay which is defined as a statement made outside a court, adduced as proof of any matter stated in it.[5] First hand hearsay is admissible by virtue of s.116 of CJA 2003 if the person who made is unavailable due to one of the reason as specified in s116 (2) which appears to be fear in this present case. In a voire dire in which the Lisa will give testimony judge will examine the reason why Lisa is refusing-whether she is frightened. If it is not established that Lisa is indeed in fear, section 116 attempt to get Lisa's statement will not be likely. As this seems to be an important statement the prosecution will apply to the court to introduce the statement by virtue of s.116 (2) (e) which will then be considered by the judge to allow it in the interests of justice to do so.[6] Demand for special measures[7] will be then made by the prosecution as this is a key witness. 2. PC Robyne will testify that he sold a coat to Defendant at below market price for cash. Only a person dealing in such transaction in a regularly basis will readily accept to purchase good without enquiring the source or provenance of the item under sale. This means that defendant is used to such purchase for sale. This will be a direct evidence of defendant dealing in stolen goods with guilty knowledge. The defence, however, will try to have the evidence excluded if it is shown, in a voire dire, that it is improperly obtained through entrapment in this case. A voire dire may be heard in the absence of the jury. But the judge will decide whether the entrapment evidence will be heard by the jury or not. The Court, at common law, has discretion to exclude evidence albeit relevant to ensure a fair trial- evidence which has been obtained improperly through entrapment, deceit, trickery or through improprietery of the police officers. As regards the conversation which the undercover PC and the defendant had in the latter's place of residence should have been excluded if they concerned fact in issue in this case. The fact that the defendant asked the undercover PC whether it would be problem in disposing the fur coat in Birmingham implied that the defendant wants to ensure it had not been ‘stolen' from that region which is an indirect evidence which PC Robyne will be required to testify in the witness box . The case of Sang[8] which is concerned with entrapment in which a person acting as an agent provocateur enticed the accused to commit a crime dealing in forged bank notes and possession of those notes which otherwise would not have been occurred, established judicial exclusion of evidence if it justifies it has a prejudicial effect outweighing its probative value and a more limited discretion to exclude unfairly and illegally obtained evidence. Thus in English law entrapment is not a substantive defence; therefore judicial discretion to exclude evidence merely on entrapment is not available.[9] In another case[10] concerning entrapment, in which an undercover journalist posed as a sheikh and a meeting arranged to book the Defendant who was a celebrity to open a nightclub owned apparently by the sheikh. Conversation which they had involved drugs during which defendant agreed to supply cocaine and cannabis for use in the sheikh's party. Defendant was charged and convicted of possession with intent to supply. Though the defendant had been enticed to commit the offence, the evidence was admissible provided it is reliable and defendant was given the opportunity to challenge the admission. The court of appeal acknowledged that in cases where abuse of power is raised, policy issues would be considered widely and evidence gathering would be disapproved by expressing it in staying proceedings. This therefore implies mitigation of sentence where there is entrapment. Section 78 of the Police and criminal Evidence Act 1984 provides the judge discretion to exclude evidence that would have an adverse effect on the fairness of the proceedings and the court ought not to admit it. The court should have regards to the circumstances in which the evidence have been obtained including the way it was obtained. In Christou,[11] police officers set up bogus jewellery shops in an undercover operation to attract vendors to sell stolen jewellery and other items. The Judge could exercise discretion to exclude if criteria for unfairness, which has a wider meaning, were fulfilled and in the case of Christou , the defendants were neither encouraged nor persuaded to commit the offences, merely facilitated to do so . The key question is that whether the conduct of the undercover police officer did more than provide an opportunity to offend. In Shannon and R v Hardwick and Thwaites[12] the defendants were not certainly pressured though they may have been enticed into committing offences. But we cannot expect the same standards apply to both the police officers and the members of the public who instigated the entrapment. However in Loosely[13] in which defendant claimed had been entrapped into supplying heroin to a police officer and argued that it should be excluded under s.78 PACE 1984 which the judge had erred at not doing. The House of Lords found stay of the proceedings as a remedy if the cause of entrapment is found to an abuse of process. If the court do decide that, as a result of the action of the agent provocateur, allowing to proceed would constitute an abuse of process because it would constitute an affront to the public conscience or offend ordinary notions of fairness, the entire proceedings will be stayed on the basis that the accused should not be tried at all rather than the courts merely excluding aspects of the evidence under s78 at trial[14]. The Judge would ultimately consider , while looking at a stay of proceedings whether the behaviour of the officers involved was ‘so seriously improper that it brought the administration of justice into disrepute'.[15] If the defendant would have acted in the same way if someone else would have given the opportunity the entrapment would not be considered if the police had merely provided an opportunity to commit the criminal offence. Distinction has been made in Texeira De Castro v Portugal [16] between an officer creating a criminal intent that was inexistent previously and providing an opportunity for an offender who was already predisposed to offend.[17]PC Robyn by presenting himself in front of the defendant in his house and offering to sell a fur coat at below market price provides an opportunity for the latter to fall in that entrapment net of committing an offence. The court will also consider Art 6 right to fair trial. Entrapment operation must be necessary, proportional and properly managed and supervised. It does appear that the operation has been carried out properly as it is supervised by DC Steve. But it does seem necessary and proportionate for such a crime of handling stolen goods. The legitimate aim was just to protect the public from theft and burglary which could be prevented from close watch and patrolling. The case of Ludi v Switzerland[18]just like Texeira v Portugal concerned about undercover police officers involved in sample purchase of drugs from the defendants. In Ludi as the operation was supervised and the drugs deal was already under way when the officers arrived it not violate Art 6 and the evidence was not excluded whereas in Texeira there was no pre-existing evidence against the defendant or any judicial supervision of the operation, therefore the evidence was excluded. In Shannon evidence was not excluded because the court found short of ‘actual incitement or of instigation of the offences concerned. ‘ The defendant should be given the opportunity to persuade the judge in a voir dire to exclude the entrapment evidence because it will be admissible if it is reliable and not unfair.

3. DC Steve's Testimony

Steve will testify that he has kept watch of the defendant house in company of another officer who can corroborate what Steve will say. Police does carry acts which would normally be unlawful under certain conditions (infringing privacy of individuals).[19] For instance covert surveillance is ‘carried out in a manner that is calculated to ensure persons who are subject to the surveillance are unaware that it is or may be taking place.'[20] Authorisation is needed to keep surveillance if police action deems necessary on ground of substantive value either in the prevention or detection of serious crime. This watch has been carried by DC Robyn who is higher position in police hierarchy. His testimony will concern the search at the defendant house as well. Steve finding several individuals arriving at the defendant's house with bags and parcels and leaving without the bags did not directly identify the latter dealing in stolen goods with guilty knowledge but can used as supporting evidence against the defendant. This will be relevant evidence as this can be persuasive if put to the jury in addition to other evidence. But the individuals cannot be traced to testify in court. The defendant does not run any business why these individuals were coming and going is to be answerable. This is known as implied assertion. Now the question is can this be adduced as evidence. The defendant will try to exclude them as hearsay. Hearsay evidence is an out of court statement to prove the truth of what is already stated in the fact in issue. The prosecution will maintain and show that the individuals coming to the defendant's place of residence have a purpose, he is the owner and sole occupier and know why there is an influx of these individuals in order to undermine the hearsay element of defence. The judge will tell the jury to focus mind on admissibility. In kearley[21] telephone calls made to the defendant were identified as implied assertion hearsay statements which were inadmissible under the old law. But s115(3) of the Criminal Justice Act 2003 has reduced the scope of kearley. Now this section has defined hearsay statement as an original statement made in order to cause another person to believe the matter stated or to cause them to act upon the basis the statement was true thus apparently suggesting that unintentional implied statements are not hearsay.[22] The unidentified individuals do not intend to prove that other believe that Debbie is handling stolen goods. They were coming for a purpose and that is to sell their goods to Debbie.

4. DC Steve's testimony after search at Debbie's house

Steve will testify that they discovered stolen goods which have been identified being stolen in local burglaries in Clapham and which will be direct evidence that Debbie is in possession of stolen goods. Defence will seek to exclude this evidence as unfair and improperly conducted which will have a slight chance of success as the search was carried out with a search warrant and which could also be carried out without a search warrant. The search of premises is governed by Code B which states that searches should be made at reasonable time, that only reasonable force should be used and that due consideration for the property and privacy of the occupier should be shown.[23] Debbie stated that she did not have knowledge that the stolen goods were in the house. Now the prosecution has the burden of proof to show that she does have knowledge and she is lying. The prosecution has to prove beyond reasonable doubt so as to be compliant with Art 6 of ECHR. Again all searches should be conducted if it is necessary, proportionate and is of public interest. In this case there is no doubt the legitimate aim is to track people who have been involved in large scale burglaries and it is the duty of police to create a safe environment for both the public in general and the business men in particular. If the search is illegal or DC Steve has acted mala fide the defence will use s78 PACE Act 1984 to exclude it despite its reliability for public interest in bringing Debbie to trial does not outweigh her Article 8 right to privacy. Defence will also argue that she has not been given the right to be assisted by a solicitor while being interviewed and this will be an infringement of Art 6 of ECHRR. Based on the Woolmington principle the prosecution bears the legal burden of proof for the avoidance of doubt and if it fails to discharge its evidential burden the defendant is entitled to an acquittal, that is, a prima facie case cannot be made. There are instances where there will be reversal of burden of proof on the defendant without being in any infringement of Art 6-fair trial-of ECHR and that is when defence gives defence of insanity at common law or relies for his defence on any exception, exemption, proviso, excuse or qualification by virtue of s101 of the Magistrates Court Act 1980. In the present instance the onus will be on prosecution to prove that Debbie has handling stolen goods and the presence of the goods do indicate that she in fact received these stolen goods. However In R v Lambert[24], the appellant, Lambert, was convicted of possession of a controlled drug with intent to supply contrary to s5 of the Misuse of Drugs Act 1971. On the original trial he, in his defence, relied on s28(3)(b)(i) of the Misuse of Drugs Act 1971 and claimed that he did not believe or suspect or have reason to suspect that he was in possession of a controlled drug, cocaine which has been found in his bag. Lambert, [25]in his case, has to prove on the balance of probabilities that he did not know that the bag controlled drugs. The appeal was dismissed and it was ruled that the appellant could not rely on the provisions of Human Rights Act 1998 to challenge the direction given by the trial judge in the original trial to the jury. The prosecution was required by s5 of the Act to prove that the accused had a bag in his possession containing a controlled drug and did not have to prove that accused knew that the bag contained a control drug. Once the prosecution proved that accused had a bag containing a controlled drug the accused could seek to establish one of the defences under s5 (2) or s28 of the 1971 Act. Once accused was entitled to rely on the provision of the Convention Art6 (2) then s. 28 could, in accordance with s.3 (1) of the Human Rights Act have to be read as imposing only an evidential burden on the accused rather than a legal burden. Debbie had in his house two bags containing goods identified as having stolen and jewellery and silverware. She only had access to the house. There is no information that somebody else also has access. She apparently being the sole occupier or owner does indicate that she knew about the goods. Where legal action is taken against a person for handling stolen goods, s.27 ( 3) of the Theft Act 1968 provides that, if evidence has been given of his having in his possession the goods that are the subject of the charge, evidence of previous conviction for handling stolen goods shall be admissible for the purpose of proving that he knew or believed the goods were stolen. The section 27 (3) provides two conditions : namely the conviction shall not be more than five years preceding the date of the offence charged and seven days' notice in writing be given to the defendant of intention to prove the conviction. On the ground that the prejudicial effect outweighs its probative value the judge has power to exclude s.27 (3) evidence. But defendant's previous charge is beyond five years rule. Therefore prosecution will adduce bad character evidence under s101 (d) .

Refer section 5 as well.

5. Evidence of Bad character

Bad character is defined as ‘evidence of, or of a disposition towards, misconduct on his [a defendant's] part'[26]from which misconduct is further defined as the commission of an offence or ‘other reprehensible behaviour'.[27] Admission of bad character is possible through seven gateways as provided by s.101 (1) (a) to s. 101 (1) (g) of the 2003 Act. Can the prosecution adduce the bad character of Defendant under s.101 (1)? In R v Hanson[28] a case which concerned about a bag containing £600 stolen from a bedroom above a public house. The Appellant who had been drinking in the public house that afternoon was allowed behind the bar into a private kitchen to make up a bottle for his child and thus had an opportunity to enter the bed room at the material time. His previous convictions for offences of dishonesty were admitted as being relevant to an important matter in issue between prosecution and defence whether he had a propensity to commit offences of the kind charged. The appeal was dismissed. The Court of Appeal issued guidelines as to the principles of admissibility under this gateway. There are three questions to be considered in order to rely upon whether there is propensity to commit offence. The first is whether the history of convictions establish a propensity to commit offences of the kind charged, the second is whether the propensity make it more likely that the defendant committed the offence and lastly whether it is unjust to rely on the convictions of the same or category ; and , in any event, will the proceedings be unfair if they are admitted. Rose LJ stated that ‘it is often necessary, before determining admissibility and even considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant's record as a whole.' [29] The prosecution would argue that Debbie's previous convictions should be admitted under s.101 (1)(d) as showing a propensity to commit offence and also to be untruthful if in any other earlier case pleaded not guilty and gave evidence in her own defence.

Defence's Argument

The defence would argue that , under s.101 (3), the admission of such evidence would have such an adverse effect on the fairness of the proceedings that it ought not to admit and the length of time since the conviction it would be unjust to admit it in this case . Relying on the guidelines of Hanson the defence would also argue that the judge has a duty to consider the strength of the prosecution case. If there is not enough evidence against the defendant it is unlikely to admit previous conviction. Debbie's previous convictions dated eight years the latest and twenty years the earliest. Defence could also rely on the common law discretion as confirmed in Sang to exclude evidence where its prejudicial effect outweighs its probative value. Prosecution will try to rebut this stating that defendant has been continuing handling stolen goods but has not been arrested due to evidence. Now she is being charged because her name has come to through Liza. By putting the blame on Gerry the defendant has made an attack on another person's character and open another gateway by virtue of s101 (1)(g) of the CJA 2003 to admit bad character evidence. Prior to 2003 Act defendant was free to make attack on the character of non co-defendants, witnesses of the prosecution or deceased victims of the alleged crime without having his own bad character revealed. Now s.101 (1)(g) has provided a wide definition to include anybody. If this is accepted defence would argue to exclude it either by virtue of s.101 (3) or under common law discretion. Refer Sang in Para above. S100(1) (b) permit to adduce the evidence of another's bad character, provided that it has substantial probative value in relation to a matter which is a matter in issue in the proceedings and is of substantial importance in the context of the case as a whole' in order to allege that that other party was the true culprit. By reason of the nature of the offence and of a third party's particular record of offending that third party was responsible for committing this offence. Such offence was admissible independently of s 100 on the ground that it is evidence which has to do with the alleged facts of the offence with which the defendant is charged.'[30] Defence will give evidence that Gerry accepted through telephone that he placed the stolen goods in the garden. S100(3) provides detail in assessing the probative value of evidence for the purpose of 100(1) (b), that the court must have regard tothe nature and number of the events to or other things to which the evidence relates, when they occurred, and the similarity between the misconduct and other alleged misconduct. Under s100(3) if the defendant is suggesting that Gerry had been responsible for the offence for which she was charged based on R v Blastland {1986] AC 41 the court would have regard to the extent to which the evidence shows that ‘ the same person was responding each time.' The counsellor in this regard will have to give evidence in the witness box under oath what Gerry told him. If it is a question of justice and to prohibit an innocent to be sentenced it is imperative to infringe professional immunity and reveal the court under oath what Gerry told him. [Refer below.] Prosecution will say that it is important that Gerry himself give the testimony as he is not reliable, given the nature of work he is involved with and was in prison. s101 (1)(b) of CJA applies as untruthful. S116(2) of CJA lays down five facts under which a party is permitted to adduce the statements of identified, absent witness and defence will use s116(2)(d) as Gerry cannot be found as he is absconding but has to show reasonable and practicable steps have been taken to find him. What Gerry is saying is that he is confessing to a third party by virtue of s82(1) of PACE 1984, confession ‘includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.' By admitting Gerry is incriminating himself. Confession is one of the exception to the rule against hearsay and therefore admissible under s 114(1)(a). Confession is admissible if properly obtained as evidence adduced and available only to prosecution against the defendant as an exception to hearsay but based on Blastland [1986] AC 41 judges sometimes admitted evidence that was inadmissible hearsay 'as a matter of grace in favour of the appellant.' [Callan(1984) 98 Cr App R 467, 471] The prosecution has the burden of proof beyond reasonable to the facts in issue. [Refer paragraph 4.] Defence will submit that prosecution does not have a prima facie case as the evidence adduced was inadmissible as entrapment [ Refer 2 as well] and Gerry has accepted and confessed to the counsellor that he has placed the goods in Debbie's garden. Prosecution will reiterate that on public policy and interest of the public given the high level of theft in the region resort to entrapment is fair and Gerry's confession cannot be reliable as he is untruthful.. The judges will give direction to the jury on the basis of Galbraith that the jury will take a reasonable decision.

References:

Evidence Text and Materials 2n Ed, by Steve Uglow Evidence Text and Materials by Gregory Durston Evidence 5th ed, by Roderick Munday Evidence Routledge-Cavendish Questions & Answers Series Criminal Law Text, Cases and Materials by Jonathan Herring

Internets

www.oup.com [1] The defendant must be aware that he has possession or control of the items. If he is not aware when he receives the goods that they are stolen, but later becomes aware that it is then better charge on basis of retention than receiving. [2] Forsyth [1997] 2Cr App R 299 [3] R v Derby Magistrates' Court ex parte B [1995] 3 WLR 681, HL [4] Ibid 3 [5] Cross and Tapper on Evidence 10th ed, Sweet &Maxwell 2006 [6] S.116 (e) Criminal Justice Act 2003 [7] S.17 (b) of Youth and Criminal Evidence Act [8] [1994] 98 Cr app. R 437 [9] Prof. S.Uglow's lectures and seminar in judicial discretion. [10] R v Shannon [2001] 1 WLR 51 [11] [1992] 4 All ER 559 [12] [2000] WL 16 [13] R v Loosely [2001] 1 WLR 2060 [14] G. Durston, Evidence Text and Materials Pg 81 [15] Above 6; A.G's Reference {no.3 of 2000} [16] [1998] 28 EHRR 101 [17] Adapted from Prof S. Uglow's in Moodle [18] [1993] 15 EHRR 173 [19] section 93(2)PACE 1984 [20] Regulation of Investigatory Powers Act 2000 s26(9)9a) [21] [1992] 2 All E>R 345 [22] Adapted from Prof Uglow in moodle. [23] Prof Steve Uglow, Evidence Text and Materials Sweet & Maxwell Pg124. Also by s17 and 18 [24] [2001] [25] The House of Lords has three issues to address, namely(1) concerned about the nature of the offence under s5 of the Act, second concerned about the direction given to the jury at the original trial regarding the burden of proof imposed on the accused in relation to the defence under s28 of the Act and thirdly whether the appellant could rely on an alleged breach of his rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms,Art.6(2) the presumption of innocence, by the investigating or prosecuting authority when the original trial had taken place before the Human Rights Act had come into force. [26] S.98 of Criminal Justice Act 2003 [27] S.112 ibid 16 [28] [2005] EWCA Crim 824 [29] Ibid 20 [30] S 98(a) Criminal justice Act