Essay ON Dishonesty - Grade: FIRST CLASS PDF

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ESSAY ON DISHOENTY QUESTION The Ghosh Test For Dishonesty Has Attracted Many Critics. Evaluate And Explain Those Criticisms By Referral To Academic Commentators. ANSWER Where dishonesty is discussed in statute, it’s only negatively defined. Section 2(1) Theft Act 19681 gives the three situations in which a defendant isn’t dishonest in appropriating property.Where none of these situations apply, dishonesty was governed by the Court of Appeal’s decision in R v Ghosh 1982, referred to as “the Ghosh Test”. The test comprises two questions for the Jury. The first is objective; was the conduct dishonest according to the ordinary standards of reasonable and honest people? [R v Feely]. If no, the defendant isn’t guilty. If yes, the second subjective question is asked; did the defendant realise that others would find his conduct dishonest? This is a question of fact. If yes, the defendant is guilty; if no, he isn’t. In many cases, the dishonesty is said to be so obvious that there’s no need to apply the second subjective question, and the test becomes wholly objective as the defendant must have realised others would find his conduct dishonest. The Ghosh test is important in English law because it’s used for all offences where dishonesty is an element of the mens rea. If other aspects of the offence are present, prosecution may depend on this vital element of whether the defendant acted dishonestly [Elliot & Wood]. The necessity for the finding of dishonesty is in agreement with the purpose of ‘mens rea’, that (generally) a person can’t be prosecuted for an offence they didn’t intend to commit. Hence, using the Ghosh test, if a person honestly believed others would have found his conduct honest, he could be acquitted provided the conduct wasn’t obviously dishonest. There are limited arguments in favour of the Ghosh test, as it has attracted so much criticism. In R v Feely, Lawton LJ reasons that “dishonesty” has an ordinary meaning in English language. Dishonesty implies a “willful perversion of truth in order to deceive, cheat, or defraud; an intent to mislead – and commonly suggests a false appearance or double-dealing”. The Jury should not need further direction from the judge in applying the word, as the definition is quite clear. What’s more, the Jury should know what the current standards of ordinary decent people are, and can apply them without further help. The Judge felt that a statute definition was only necessary for a word used in an unusual sense. My own opinion is in agreement with those who think the test is “fraught with difficulties”.

It is a fundamental principle that parliament makes a law and the courts apply a set of facts to that law. The Ghosh test requires that the jury ‘make’ the law in deciding whether a defendant’s conduct is an offence – as oppose to deciding whether it falls within the legal definition of an offence [Law Commission Consultation Paper]. This is inconsistent with parliamentary supremacy i.e. Parliament as the supreme law maker, and the doctrine of separation of powers which states that the Judiciary and Legislative functions should be kept separate. For the Jury to decide what constitutes dishonesty, they must create a scale by which to measure the defendant’s honesty against. The Law Commission reject this idea of a scale, explaining that blameworthy isn’t quantifiable [Law Commission Consultation Paper]. As it can’t be quantified, the scale is going to be determined on what each Juror believes is morally right or wrong. Each Jury is going to vary in age, race, colour, religion, upbringing and morals, resulting in diversity regarding what is believed to be morally dishonest. Communities will differ widely in their attitudes. This means that outcomes in like cases will differ [Griew. E – ‘Dishonesty: The Objections to Feely and Ghosh’]. Consequently, prosecution or acquittal will depend which jury a person gets. A crucial aspect of law is the importance of consistency and certainty, in relation to the Rule of Law and the doctrine of precedent like cases should be judged alike. Part of Dicey’s Rule of Law is that we know in law what we can and cannot do. With the Ghosh test, dishonesty remains undefined and the Jury decides whether, in each case, the defendant is guilty according to their standards and not according to law – the Jury may even in themselves be ‘dishonest’ but apply a higher set of standards to the Defendant, resulting in “creative hypocrisy”. It is impossible to predict outcomes, and a person cannot know whether his conduct is dishonest until he comes to court! Individuals construe words and language differently, and to avoid this, the law defines many words of statutes, so that the same standards are applied consistently. I think this approach should be adopted for ‘dishonesty’, as the diversity of the Jurors could result in the word being construed to mean different things [Griew]. An aspect of the Ghosh test is that if the conduct is so obviously dishonest, there’s no need for the subjective question. However, what is obviously dishonest in one person’s eyes isn’t to another – for example, the conduct of Robin Hood [R v Greenstein]. I think in like cases, if different juries reach different outcomes, it’s debatable whether the defendant has received a “fair…hearing by an independent and impartial tribunal”. Without clear direction to the Jury, a fair outcome can’t be guaranteed as a defendant’s prosecution rests on the Jury’s own opinions, not their application of his behaviour to the law. The Jury comprises of ordinary people who are not, generally, trained in law or accustomed to performing “such complicated tasks” with the skills afforded to a magistrate or judge. Asking them in effect to create the law and judge according to what they have created is illogical [Griew. E–

‘Dishonesty: The Objections to Feely and Ghosh’ ]. The decision of the Supreme Court given on 25th October 2017, in the case of Ivey v Genting Casinos is a watershed moment in the law relating to dishonesty. In giving the judgment Lord Hughes adopted the test applied by Lord Hoffman in Barlow Clowes v Eurotrust International Ltd [2005]. Lord Hughes concluded his analysis of Ghosh dishonesty by articulating that "the second leg of the test propounded in Ghosh does not correctly represent the law", and opined that the test for dishonesty in criminal proceedings should be the same as the test used in civil proceedings, as set out by Lord Nicholls in Royal Brunei and Lord Hoffman in Barlow Clowes: 1) The jury must first ascertain (subjectively) the actual state of the accused's knowledge or belief asto the facts. The reasonableness of his belief is a matter of evidence going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable. 2)Once the accused's statement of mind as to knowledge or belief as to facts is established, the question of whether his conduct was dishonest is to be determined by the jury, by applying the (objective) standard of ordinary decent people. Crucially, Lord Hughes explicitly stated that there is "no requirement that the defendant must appreciate that what he has done is, by those [objective] standards, dishonest”. The fact that the Supreme Court has ostensibly overruled Ghosh and proposed a move towards a more objective test of dishonesty is of clear conceptual significance, and it is made all the more interesting by the fact that such a seismic shift in the criminal law has taken place against the backdrop of a civil case. However, in practice it is possible that the decision in Ivey v Genting Casinos may not be as revolutionary as first thought. [WORD COUNT: 1330 WITHOUT FOOTNOTE] 1 (C) REFORMING DISHONESTY: HOW MIGHT THE POSITION BE IMPROVED? One solution, suggested by Sir John Smith, would be to redefine dishonesty as ‘knowing that the appropriation will or may be detrimental to the interests of the owner in a significant practical way’. This would entitle the acquittal of those who take a shortterm loan from the till believing they can repay it without difficulty and without risk to the owner. It might also acquit the petty pilferer from work. It would leave vulnerable to conviction those who appropriate property for a good motive, political or otherwise. A more satisfactory proposal, consistent with the principle of minimal criminalisation, was suggested by Elliot, but would require Parliament’s attention. This would be to dispense with dishonesty except as provided by section 2(1) and to add another case: ‘no appropriation of property belonging to another which is not detrimental to the interests of the other in a significant practical way shall amount to theft of the property’. It should be noted that the basis of such a defence, unlike that of Professor Smith, is not A’s state of mind but a state of affairs, namely that the appropriation is too trivial to warrant criminal liability. One possible

consequence of the proposal is that it may offer the potential for decriminalising ‘unprofitable’ prosecutions such as shoplifting. Its most obvious application, however, is in cases where money is ‘borrowed’ with the intention of replacing it. This intention, it should be remembered, does nothing to counter the intention to permanently deprive the owner of that money. But it is little more blameworthy than any other case of borrowing without permission. A less radical proposal is put by Glazebrook and is targeted on this latter case. He suggests that an appropriation should not be regarded as dishonest if the property is ‘money, some other fungible, a thing in action or intangible property, and is appropriated with the intention of replacing it, and in the belief that it will be possible to do so without loss to the person to whom it belongs’....