AC-2024-LON-003550 - [2025] EWHC 2831 (Admin)

I examine the six chief points made by the appellant.

First, I immediately clear away an argument touched on by the appellant that it is not certain under Polish law that the conduct in paragraph 2 amounts to a criminal offence. In the 2019 arrest warrant, the following is stated about the conduct in paragraph 2:

“Under Polish law, this conduct amounts to the offence of dealing in stolen goods contrary to Article 291 paragraph 1 of the Penal Code.”

There is no evidence to suggest this is incorrect. Indeed, this was not the basis of the challenge to the Judge’s finding. That focused on whether the conduct amounted to a criminal offence under the law of England and Wales (the relevant part of the United Kingdom).

Second, it is clear that the welding device in Paragraph 2 (“welder for PCV pipes of Dedra make”) is not mentioned in the first paragraph. Therefore, there is a difference between the items alleged to be stolen by the appellant and then handled by him. He was not convicted of stealing the welder. Therefore, there cannot be a valid objection to his having handled it. However, the Black & Decker angle grinder may be one of the angle grinders stolen by him. Framed properly, there must be a doubt whether the Judge could safely find that it was a different angle grinder to those stolen by him, and in fairness to the appellant I proceed on this basis.

It is settled law that section 22 contains two distinct types of offending. First, dishonestly receiving. Second, dishonestly undertaking or assisting in the goods’ retention, removal, disposal or realisation by or for the benefit of another person, or if the accused so arranges. It is the first offence under section 22 that the respondent submits the paragraph 2 conduct amounts to – a receiving offence. When the Theft Act 1968 was enacted, this offence broadly replaced the previous offence under section 33 of the Larceny Act 1916. The offence has several requirements. The goods must be stolen. The person must receive them. The term “receiving” is not defined in the statute, but what is vital is the element of control, which may exceed simple physical possession. The person must know or believe them to be stolen. The receiving must be otherwise than in the course of stealing. It is not disputed that the angle grinder was stolen and that if the appellant came into possession of it the next day, he knew or believed it was stolen as he had been involved in the tool’s theft. He was therefore dishonest.

From the warrant, the allegation is that the appellant “purchased” the items, including the angle grinder. In other words, he received them having exchanged value (presumably money, although this is unclear) for them. This would amount to an offence under our law subject to a vital definitional question arising under section 22. Therefore, at least one item is potentially both stolen and handled. This is the focus of my analysis.

Third, this ground fundamentally turns on what is meant by “otherwise than in the course of stealing”. Put in simple terms, the warrant states that if the stealing was on Day 1, the receipt was on either Day 2, 3 or 4. To be fair to the appellant, I take the date most favourable to him: Day 2. The submission was put by him in different ways.

To begin, the starkest claim, as put orally: “it is not in the course of stealing because the items were gained during the course of the burglary that [the appellant] took part in and therefore they are received in the course of stealing.” In the appellant’s skeleton argument, it is submitted that for the purposes of the conduct test, the appellant “cannot be the ‘stealer’ and the ‘handler’” (para 28). In my judgment, the answer to the key statutory phrase is evident from the words Parliament has chosen. They are not “otherwise than having stolen”. That would require a judge to decide a materially different question. If the intention of the statutory provision was to prevent a person once she or he has stolen goods ever being capable of handling them, Parliament could and undoubtedly would have said that. It did not. The mischief is different.

The words are directed at preventing a person being guilty of stealing goods and at the same time as the during course of stealing being susceptible to being guilty of handling them. There is the obvious risk of unfair double jeopardy or punishment. When counsel for the appellant was asked whether a person involved in a theft on Day 1 could be a receiver of the same goods on Day 100, it was conceded that the person could be a receiver. Thus, the principle is established. One can steal at Time 1 and become a receiver of precisely the same goods one has stolen at Time 2. The question is when the course of stealing ends. The appellant’s earlier “never a handler” position seemed to me an unnatural reading of the statutory phrase.

This analysis is confirmed by the case of R v Dolan (1976) Cr. App. R. 36 (“Dolan”). The parties chose not to present the court with any authorities on the point, but during the course of judgment preparation, the court brought Dolan to the attention of counsel and naturally provided an opportunity for further written submission. It seems to settle the point of principle. The question then becomes a matter of evidence. Scarman LJ (as he then was) said at 39:

“The old common law (its complications are succinctly summarised in Smith, Law of Theft (2nd ed., 1972), para. 486) has now gone. The combined effect of the Criminal Law Act 1967, s. 1 and the Theft Act I968, s. 22 (1) is that, as Professor Smith suggests in paragraph 487 of his book, a thief ‘could be convicted of handling the goods stolen by him by receiving them - if the evidence warranted this conclusion’ (our italics).

If the defendant's handling of the goods occurs only in the course of the stealing, he cannot be found guilty of handling by receiving; see Theft Act 1968, s. 22 (1). But, if he handles them later, i.e. after the stealing, he commits an offence under the subsection. It is, therefore, perfectly possible for a man to be guilty of stealing and receiving the same goods.”

Fourth, it is submitted that the Judge erred in reading into the warrant that the appellant received the goods from a person who was also involved in the theft or a “third party”, whereas the warrant is silent on the identity of the seller. However, it seems to me that the Judge’s conclusion must be right. There are only two possible types of seller of the goods to him: someone involved in the theft or a third party. That covers the entire world comprehensively. This criticism is misplaced: the Judge was only expressing what is a logical inevitability.

Fifth, the principal criticism is that the appellant’s receipt was not otherwise than in the course of stealing because of an insufficient lapse of time. This is an issue that arises from time to time in criminal courts: when the course of stealing ends. As noted, the point of section 22 is to prevent a person involved in the theft immediately becoming a receiver or handler in the second sense at the point the appropriation is complete. The natural and ordinary meaning of the phrase “otherwise than in the course of stealing” is that the course of stealing involves the actual point of appropriation along with a limited but not extended time for the thief to make off with the goods and successfully complete the theft. Then the course of stealing is complete. However, I cannot think that this extends to the next day on most factual scenarios and certainly not in the case of what appears to be a commonly encountered burglary of premises, here those being decorated. There can be little doubt that by Day 2, the course of stealing has comfortably ended. The thieves have got away with the goods. The next day if one of the thieves – for whatever reason – is in a position to sell the fruits of the theft including the angle grinder in question to the appellant, in receiving the angle grinder from that other person, the appellant’s conduct amounts to the first section 22 offence under the Theft Act 1968. The position is precisely the same if the seller the next day is a third party. The number of hands the goods the appellant has helped steal have then passed through before the sale to him is immaterial.

Sixth, I cannot accept the submission that “it makes no sense” that having been a joint thief, you then purchase some of the same goods the next day. One can immediately envisage a range of factual scenarios where exactly that happens, including a hierarchy of criminality. Those involved in crime frequently play different roles; some are dominant, some subordinate. But the chief point is that there is nothing under the statute that prevents it amounting to a section 22 offence. The submission is not a proposition of law but a species of jury point.