In 1775 the East India company sent out Lord Pigot with instructions to restore the Rajah of Tanjore to his Madras territories. These had been annexed in 1773 by the Nawob of the Carnatic. In fact the Nawob was a puppet; the employees of the East India company were the real powers in Madras and Bengal. One of the principal persons in this regard was Paul Benfield (1740-1810). Benfield was nominally answerable to the Court of Directors of the East India company: in reality he was more powerful than his employers. The unlucky Lord Pigot was thrown into a dungeon by company troops (by order of Benfield) where he died in 1775. Benfield amassed one of the largest fortunes ever brought home from India. He was recalled in 1781 as a result of the Pigot scandal and successfully petitioned to return to his position in India. The vote in his favour in the Court of Proprietors of the East India company was 368 to 302. Edmund Burke had purchased a shareholding in the East India company in order to block Benfield’s reinstatement. One of his “Heads of Objections” read;
“That the immense Magnitude of the Sums alleged by him to be due to the said Paul Benfield, furnishes a just Cause to doubt, whether the Money (if really advanced as pretended) could be acquired by lawful means, considering Mr. Benfield’s Rank in the Service, the nature of his Trade, and the time of his residence in India.” Paul Benfield was a man of the world. The shareholders of the East India company were also beneficiaries of the extortion and theft practised in India and if appearances could be maintained, they would not and did not change the status quo.

The question in the title to this post is very likely a common question to be put to suspects by Gardai.

The reason is found, firstly, in the terms of Section 19A of the Criminal Justice Act 1984 (as inserted by Section 30 of the Criminal Justice Act 2007) and secondly, in the fact that, here in Ireland, not many Garda stations are equipped for electronic monitoring of questioning of suspects.

Under Section 19A an adverse inference may be drawn from the failure of an accused to mention a fact, later relied upon by him in his defence, while he is being questioned etc., by the Gardai.

Section 19A contains the following sub-section:

(6) This section shall not apply in relation to the questioning of a person by a member of the Garda Síochána unless it is recorded by electronic or similar means or the person consents in writing to it not being so recorded.”

Section 19A only applies if the person is charged with “an arrestable offence”.

“an arrestable offence” was defined in the Criminal Law Act 1997 as:

“arrestable offence” means an offence for which a person of full capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and includes an attempt to commit any such offence;”

To put that in context, Section 4 (6) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 provides:

(6) A person guilty of theft is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 10 years or both.”

Few people charged with theft are sentenced to ten years in prison, but they might be, and that is sufficient to make theft “an arrestable offence”.

Consequently, while being questioned about the theft of groceries in a supermarket, say, the Garda Síochána, in preparation for any subsequent trial, knowing that the questioning will not be recorded electronically, are very likely to say,

…sign here, to say you don’t mind us not recording you”.

This is a post of clarification. No blog post can be a monograph, but sometimes “mature reflection” indicates that more needs to be said.

My post on the UK Law Society (seen HERE) is one such post.

May I be taken to be endorsing the Legal Services Board in any sense? Emphatically, no.

Do I approve of the concept of a regulatory system for solicitors? Reluctantly, yes.

Do I believe that the throwing of ashtrays at staff is a matter to be addressed in a regulatory system for solicitors? No.

Do I believe that the stealing of money from clients is a matter to be addressed in a regulatory system for solicitors? Yes.

A fundamental principle should apply; no person and no group of persons should be above the law. That law should be adequate to protect the legitimate interests of the public.

In addition, it is undesirable that there be a special process for applying the law to one group of persons by comparison with any other group of persons.

(It was the failure of the Catholic church and Irish society to adopt and apply these principles to Catholic priests that facilitated wrongdoing by priests.)

In any walk of life, therefore, be it that of lawyers or priests, the throwing of ashtrays should be challenged and, if appropriate, punished, in the same forum as is used for everyone else.

Why do I distinguish the stealing of clients’ money by solicitors from that principle?

I do so because when it happens the client is immediately at a disadvantage, relative to the solicitor.

The client has voluntarily transferred, or directed the transfer, of the money to the solicitor. On that ground alone the average policeman is immediately bemused at the beginning of any hypothetical investigation of a client’s complaint. It takes a specialised policeman, from a fraud squad, to conduct that investigation. In Ireland we have inadequate resources to investigate fraud.

As a practical matter, therefore, it is a necessary evil that the regulation of solicitors exist and that it apply with full force to the management of clients’ money.

I should declare an interest in this topic; under current regulations the Irish solicitors’ profession (I belong to that group) is the collective end stop for making good money losses by solicitors’ fraud or theft, as analysed previously by me HERE.

Needless to say I want a good, efficient, policeman working on the problem when it arises.

The existence of absolute privilege (in the Oireachtas and the courts) is generally known. The existence of qualified privilege is less well known. There is a qualified privilege for words spoken, without malice, to protect property or detect crime. The leading UK textbook on Defamation, “Gatley on Libel and Slander�? states:

Though there is no common interest involved, the Courts have long held that statements are privileged if made bona fide for the purpose of detecting and bringing to punishment a suspected criminal, or of recovering stolen goods. Thus, a person who suspects another of a particular theft may, with a view to inquiry, tax that individual with the theft, and although the suspicion turns out to be erroneous, the law gives no redress to the party accused.”

Consequentially, in the High Court case of McCormack v Olsthoorn [2004] IEHC the Defendant, wrongly believing the Plaintiff had stolen a plant from him, publicly challenged him to that effect. The court ruled that the statement was made on an occasion of qualified privilege and found for the Defendant on that issue. (The Defendant lost on the issues of assault and false imprisonment).

[McCormack v Olsthoorn MAY REST ON ITS PARTICULAR FACTS. ARGUABLY, THE DEFENDANT COULD HAVE DEALT WITH THE MATTER A LITTLE DIFFERENTLY. WAS IT UNAVOIDABLE OF HIM TO SAY WHAT HE SAID, IN PUBLIC?]

The current Irish law on “shoplifting” is to be found in Section 8 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The side note for the Section descriptively reads “Making off without paying�?.

The Section provides:

8. —(1) Subject to subsection (2), a person who, knowing that payment on the spot for any goods obtained or any service done is required or expected, dishonestly makes off without having paid as required or expected and with the intention of avoiding payment on the spot is guilty of an offence.

Shoplifting is a form of theft and could also be charged as theft under Section 4 of the Act, which provides:

4. —(1) Subject to section 5 , a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it.

The relevant differences between Section 8 and Section 4 are that the penalty under Section 4 is considerable; a fine or imprisonment for a term not exceeding 10 years or both.

The penalty under Section 8 is smaller: a fine not exceeding £3,000 or imprisonment for a term not exceeding 2 years or both.

In addition, Section 8 makes specific provision for the circumstances in which a suspected shoplifter may be arrested in a “citizen’s arrest�?. It provides:

An arrest other than by a member of the Garda Síochána may be effected by a person under subsection (3) only where the person, with reasonable cause, suspects that the person to be arrested by him or her would otherwise attempt to avoid, or is avoiding, arrest by a member of the Garda Síochána.