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The Test of Dishonesty in R. v. Ghosh

Published online by Cambridge University Press:  16 January 2009

Kenneth Campbell
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Extract

The nature of the test of dishonesty in offences under the Theft Acts 1968 and 1978 and in conspiracy to defraud has long been a matter of dispute. There have been several conflicting decisions of the Court of Appeal and of the Divisional Court. In essence, two lines of authority had emerged. Both agreed, following Feely, that, on trial on indictment, the question of dishonesty was one for the jury, and both agreed that the test was, at least in part, one of moral judgement. One line, however, said that the moral judgement was that of the accused himself, the other that it was the moral judgement of the reasonable and honest man (or some variant of this.)

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Articles
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The Cambridge Law Journal , Volume 43 , Issue 2 , November 1984 , pp. 349 - 360
Copyright
Copyright © Cambridge Law Journal and Contributors 1984

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References

1 [1973] O.B. 530.

2 [1982] Q.B. 1053. This report lists all the important previous authorities, so I shall not set them out here.

3 Smith, J. C., “Commentary on R. v. Ghosh” [1982] Crim.L.R. 608.Google Scholar

4 Williams, G., “The Standard of Honesty” (1983) 133 N.L.J. 636.Google Scholar

5 For a thought-provoking discussion of these premises see Elliott, D. W., “Dishonesty in Theft: A Dispensable Concept” [1982] Crim.L.R. 395.Google Scholar

6 [1982] Q.B. 1053, 1064C el seq.

7 This point is not clarified by the subsequent decision of the Court of Appeal in Woolven (1983) 77 Cr.App.R. 231. The trial judge directed the jury thus, “If… your final conclusion is that notwithstanding what the accused did he may not have regarded it as dishonest, that is an answer to this charge” (p. 236). This is somewhat ambiguous on the point, but, if anything, suggests that a “don't know” suffices for an acquittal. The Court of Appeal approved that direction, but said that it had brought home to the jury that they must acquit if “they thought he might have regarded his actions as honest” (p. 236), which, if anything, suggests that a “don't know” does not suffice. In this article I shall not discuss one implication of Woolven, namely that the Court of Appeal may, in time, be bound to infer from its own decision in Ghosh that the test in that case itself swallows up all of the partial definition of “dishonestly” which is provided by s.2 of the 1968 Act.Google Scholar

8 [1982] O.B. 1053, 1063F-1064B.

9 Cf. Feely, supra.

10 This same interpretation is advocated in Griew, E., The Theft Acts 1968 and 1978, 4th ed. (1982), pp. 57–58Google Scholar and assumed in Cross, R., and Jones, P. A., Introduction to Criminal Law, 10th ed., edited by Card, R. E. (1984), pp. 234–237. At least in theft the test even in vacuo has to allow for the possibility of one belief of the accused, namely that he has a legal right to appropriate the property, either by operation of law or by permission of the person to whom the property belongs. This, of course, is because s.2 of the 1968 Act makes it mandatory to allow such a belief as a defence.Google Scholar

11 One point to bear in mind is that if dishonesty if made dependent in any degree on the accused's own views, as it is by Ghosh, then he must have held those views at the time of the offence. There is an obscure passage on this point in Woolven. The Court of Appeal said, “When the appellant was cross-examined as to whether he regarded his conduct as dishonest, he at first said that he was not sure whether it was or not … He finally agreed that other people would think that his behaviour was dishonest” (p. 234). Leaving aside the point about the status of a “don't know,” if this remark suggests that a person can be guilty if, on later reflection, he agrees that what he did was dishonest, irrespective of what he thought at the time, then this has to be wrong on principle.

12 I am not, of course, claiming that there may not be cases in which juries fail to grasp the distinction and simply apply their own standards even though directed to apply that of the reasonable and honest man.

13 I am grateful to Dr. Helen Beynon, Mrs. Patricia Leopold and Mr. Peter Schofield for some helpful comments on an earlier version of this article.