The Test of Dishonesty in R. v. Ghosh

Author:

Campbell Kenneth

Abstract

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.)

Publisher

Cambridge University Press (CUP)

Subject

Law

Reference6 articles.

1. Griew E. , The Theft Acts 1968 and 1978, 4th ed. (1982), pp. 57–58

2. 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.

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

4. Elliott D. W. , “Dishonesty in Theft: A Dispensable Concept” [1982] Crim.L.R. 395.

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

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