Bates, R. v

A person may be guilty of both theft and handling the same goods where the handling is a separate and subsequent act. Handling cannot, however, occur only in the course of the stealing.

Whether theft and handling counts are mutually exclusive alternatives depends on the prosecution case, the particulars of the counts and the evidence. A handling count may properly be an alternative to burglary alone, notwithstanding a separate theft count, where it concerns wider subsequent handling. An acquittal of burglary is not inconsistent with a conviction for theft where the jury could be sure of participation in the theft but not in the burglary.

The appellant was acquitted of burglary but convicted at Teesside Crown Court of theft of a Toyota Hilux and handling stolen goods, contrary to the Theft Act 1968. The handling count concerned the vehicle and other property taken during the burglary. He appealed against both convictions.

The appeal contended that theft and handling were mutually exclusive on the facts and that the jury should have been directed to treat the handling count as an alternative to both burglary and theft. The central issue was whether the verdicts were unsafe because the handling count had been presented as an alternative only to burglary.

1. Appeal dismissed. The convictions for theft and handling stolen goods were safe.

2. Under sections 1, 3 and 22 of the Theft Act 1968, handling must concern goods already stolen and must occur otherwise than in the course of the theft. Nevertheless, the same person may steal and subsequently dishonestly handle the same goods if the evidence supports distinct conduct. The court applied R v Dolan [1975] 62 Cr App R 36.

3. The prosecution had not alleged that handling was an alternative to theft. It had alleged that handling was an alternative to burglary. That approach was lawful and factually available because the handling count covered all the property taken from the house, as well as the vehicle, and was not confined to conduct occurring during the vehicle theft.

4. This did not conflict with the guidance in R v Shelton [1986] 83 Cr App R 379. The judge had clearly directed the jury that it could not convict of both burglary and handling, and that it should consider handling only if not sure of burglary.

5. The verdicts were reconcilable. The jury could properly be sure that the appellant and his co-accused jointly stole the vehicle, while not being sure that the appellant participated in the burglary. References to joint offending concerned joint participation with the co-accused; they did not require the same participants to have committed every charged offence.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2020] EWCA Crim 1288.
• Teesside Crown Court: convicted the appellant of theft and handling stolen goods after trial, and acquitted him of burglary.