Monday 24 October 2016

Is it wrong to steal food if you are starving?

James McDermott

Published 02/06/2016 | 02:30

The decision taken by the Supreme Court of Italy could have implications for Ireland (Stock picture)
The decision taken by the Supreme Court of Italy could have implications for Ireland (Stock picture)

It has always been assumed by Irish lawyers that hunger is no defence to a charge of stealing food and homelessness is no defence to a charge of trespassing. However, that may need to be reconsidered in the light of an unexpected decision recently delivered by the Supreme Court of Italy.

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When Roman Ostriakov, a homeless, 30-year-old Ukrainian, stole a sausage and a piece of cheese from an Italian supermarket, he could not have imagined that he was about to radically change the law and in the process become the most famous European petty thief since Jean Valjean, the protagonist of Victor Hugo's 'Les Miserables'.

Ostriakov was noticed by a fellow customer leaving the supermarket with the cheese and sausage worth €4.07 in his pocket, having only paid for some breadsticks. In 2015, the lower court in Genoa convicted Ostriakov of theft and sentenced him to six months in prison and fined him €100. On appeal, Ostriakov's lawyers sought to argue that their client should only have been convicted of the lesser charge of attempted theft rather than actual theft on the basis that he had not managed to leave the supermarket with the concealed items before he was apprehended by store security. However, Italy's Supreme Court of Cassation overturned the conviction entirely.

In a historic ruling, the court noted that the condition of the defendant and the circumstances in which the theft took place were such that Ostriakov "took possession of that small amount of food in the face of the immediate and essential need for nourishment, acting therefore in a state of necessity".

In such circumstances, the theft "does not constitute a crime" as "people should not be punished if, forced by need, they steal small quantities of food in order to meet the basic requirements of feeding themselves".

The common law origins of the defence of necessity in criminal law date back to the 16th century but has always been of limited scope.

This was highlighted in the celebrated 1884 case of Dudley and Stephens, which concerned two sailors and a cabin boy who were cast adrift on a lifeboat after their ship sank. Eighteen days later, having run out of food and drink, the two sailors decided to kill and eat the unfortunate cabin boy. Four days later, the surviving sailors were rescued by a passing ship and returned to England only to be subsequently convicted of murder and sentenced to death (later commuted to six months imprisonment) despite the fact that the jury accepted that had they not eaten the cabin boy, they would probably all have died, as at the time of the killing there was no appreciable chance of survival by any other means.

This precise scenario in which Ostriakov found himself was considered with remarkable prescience by Lord Denning in a case concerning Southwark London Borough Council in 1971. Lord Denning took a firm stand and stated that "When a man, who is starving, enters a house and takes food in order to keep himself alive, our English law does not admit the defence of necessity. It holds him guilty of larceny."

Denning went on to explain that "The reason is because, if hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass" and he concluded that in refusing the defence of necessity to the homeless one trusts that "their distress will be relieved by the charitable and the good".

It has always been assumed that Lord Denning's stand against anarchy represented the law in this jurisdiction too. However, the decision of the Italian Supreme Court raises the possibility that a hungry or homeless person who finds themselves charged before an Irish court might now have a basis for arguing that it is wrong to condemn them as a criminal in respect of a crime they were compelled to commit by their circumstances.

James McDermott is a barrister

Irish Independent

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