Posted: 10 / 02 / 2019
What is meant by “dishonesty” in English criminal law?
When considering the meaning of dishonesty the criminal courts of England and Wales until now often referred to a case decided last century. Recently in the case of Ivey v Genting Casinos (UK) Ltd (t/a Crockfords)  UKSC 67 (25 October 2017), the UK Supreme Court reconsidered the meaning of dishonesty – and came to some new conclusions.
The two-stage ‘Ghosh’ test
Until October 2017 the leading case on the meaning of dishonesty in English criminal law was R v Ghosh  EWCA Crim 2. In that case, decided in 1982, the Court of Appeal determined that there was a two-stage test for dishonesty. The first stage was based on an objective criterion and the second stage was based on a subjective criterion. The two-stage test was put in the following terms:-
“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must, first of all, decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.
If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.”
So until October 2017 criminal courts operated on the basis that not only must the conduct of the defendant be dishonest by the ordinary standards of reasonable and honest people (the objective test) but the defendant himself must have realised that he was acting dishonestly by that standard (the subjective test).
The subjective test
What was implied in Ghosh, was that a defendant was entitled to say, “I did not know that anybody would regard what I was doing as dishonest” and if he was believed he should be acquitted of dishonesty (as the subjective test was not satisfied).
But the Supreme Court has now criticised that approach, saying that “It has the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour”.
The new judgment means that it is still necessary for the jury in the Crown Court or the magistrates in the Magistrates’ Court to reach conclusions about the actual state of mind of the defendant – but only insofar as this relates to the defendant’s state of knowledge or belief as to the facts. The Supreme Court has now said that criminal courts should no longer ask themselves whether the defendant himself realised that he was acting in a way which ordinary people would consider to be dishonest.
The new legal position
So instead of the Ghosh test, when dishonesty is in question the court must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The question is not whether that belief is reasonable – the question is whether it is genuinely held. Once his actual state of mind as to knowledge or belief as to the facts is established, the question whether his conduct was honest or dishonest is to be determined by the jury or magistrates by applying the (objective) standards of ordinary decent people.
There is no longer any requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.
One consequence of this is that the definition of “dishonesty” is now consistent between criminal and civil law in England and Wales.
Suppose a person has newly arrived in England and he has come from a country in which all public transport is free. He gets on a bus in London and on arriving at his destination gets off without paying. He is charged under s3 Theft Act 1978 with dishonestly making off without payment. But was he dishonest?
The issue is ‘Did he genuinely believe that no payment was required?’. If he did then he has not been dishonest and should be acquitted. If, on the other hand, he did know that payment was required then he was dishonest by not paying.
But this issue concerns the defendant’s belief about the relevant facts – the issue is not about his understanding of what constitutes “dishonesty”. That is the change in the law as a result of the Supreme Court’s ruling in October 2017.
Is the defendant’s state of mind irrelevant?
So is it now totally irrelevant that the defendant wrongly believed that what he was doing was acceptable behaviour? Well, not entirely. A defendant’s deluded belief that he was not acting dishonestly (for example because he hoped one day to repay money which he was stealing and spending) will not now result in his acquittal. But it could be put forward in mitigation on sentencing that he had no intention to cause harm to his unfortunate victim.
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