The meaning of “dishonesty” in English criminal law

Legal wig copyright David Winch 2014
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) [2017] 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 [1982] 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.

 

An example

Suppose a person is 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.

 

Contacting us

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David

(Note: This article applies to matters arising under the provisions of the criminal law in England and Wales.  Appropriate professional advice should be sought in each individual case.)

6 Responses to The meaning of “dishonesty” in English criminal law
  1. Ron Barker
    October 28, 2017 | 6:36 am

    David

    Could you please use the same example using the Ghosh Test’. Thanks.

    • David Winch
      October 28, 2017 | 9:59 am

      Ron
      The ‘man on a bus’ example is a simple one which I intended to help explain the difference between the process in the old test and the new one. But it does not illustrate different outcomes under the two tests.

      A more complicated example could be based around the gambling undertaken by Mr Ivey. (To be clear however Mr Ivey was never charged with any criminal offence.)

      Mr Ivey’s keen eyes spotted an asymmetry in the printing of the backs of the cards in the deck. He brought about a situation in which high value cards were one way round in the deck and low value cards were the other. He was then able to tell from the back of the card next to be used whether that card was high value or low value – and he bet accordingly (and won handsomely).

      He therefore turned a game which was intended to be a game of pure chance into a game of skill. He had knowledge which the ‘house’ did not have and was not aware that he had.

      He would say his powers of brain and eyes outwitted the ‘house’ and brought him an advantage, but he was not dishonest.

      Assuming he genuinely believed that he was not dishonest then – had he been accused of a criminal offence involving dishonesty – under the Ghosh test he would be acquitted (because he did not himself realise that he was behaving in a way that would be considered dishonest by generally accepted standards).

      But the Supreme Court says the Ghosh test was the wrong test. The correct test is whether the jury (using generally accepted standards) would consider what Mr Ivey had done was dishonest.

      The Supreme Court judges did consider Mr Ivey’s conduct to have been dishonest so, if he had been charged with a criminal offence involving dishonesty, under the new test he would have been convicted.

      David

      • Ron Barker
        October 28, 2017 | 3:28 pm

        David

        Yes, I am aware of the case. The second leg of Ghosh direction is not always needed because, as in your example, the dishonesty aspect of the offence is easily understood by the jury because it is part of the facts of the facts. The big change is, as you have explained, it does not matter any longer what ‘excuse’ the accused has.

        • Ron Barker
          October 28, 2017 | 3:30 pm

          This example is taken from the Crown Court Bench Book:
          The only issue in this case is whether D was acting dishonestly. He admits that he walked out of the shop with the radio intending not to pay for it and that he intended to keep it. But he says that it was only a cheap radio, he was penniless, and that he was living a miserable life on the streets and needed some source of entertainment. In these circumstances he says that he did not think that it was dishonest to take the radio, and neither, he says, would anyone else. The prosecution say that it was obviously dishonest, that D knew it, and that he is now putting forward a devious argument to avoid being convicted. You must first decide whether you are sure that D’s behaviour was dishonest by the ordinary standards of reasonable and honest people. If you are sure it was, you must then ask whether D must have realised that it was dishonest by those standards. If you are sure about that as well, the prosecution will have proved that D acted dishonestly and your verdict will therefore be ‘Guilty’, whether or not D personally thought his behaviour was dishonest. But if you are not sure that D’s behaviour was dishonest by those standards, or not sure that D realised that it was, the prosecution will not have proved that D acted dishonestly, and your verdict will therefore be ‘Not Guilty’.

          • Ron Barker
            October 28, 2017 | 3:37 pm

            PS: I think that mistaken belief of the fact/s will still provide a defence.

          • David Winch
            October 28, 2017 | 4:12 pm

            Ron
            I agree that a mistaken belief of the facts will still prove a defence. Where I think the example you quote from the Crown Court Bench Book will now need to be amended is that the words “you must then ask whether D must have realised that it was dishonest by those standards. If you are sure about that as well,” and “or not sure that D realised that it was,” will need to be omitted. So I think if D recognised (as appears not to be disputed) that he ought to pay for the radio before taking it from the shop and that he did take it without paying for it and knowing that to be the case (and if that behaviour is dishonest by generally accepted standards – which it surely is) then he is guilty of theft.

            Here’s another one for you. John sets up in business. The business goes well and builds up stocks & debtors but John takes only a small weekly wage from it.
            John completes his own tax return. He enters on his return his wage as income from employment. He does not complete the self employment pages or prepare accounts. Is John dishonest? I don’t think so. But an accountant would know that John should be declaring on his tax returns the profits of the business – not just the ‘wage’ he draws from it. John has a mistaken belief about the taxation implications of his activities.
            David

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