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The Ghosh test for dishonesty has attracted many critics.

One example is Professor Griew, author of “The Theft Acts 1968 and 1978 (7th edn, 1995)

Some commentators argue that it creates a “Robin Hood defence", others that the issue of dishonesty should be a question of law rather than of fact.

Evaluate and explain those criticisms by referral to academic commentators.

Dishonesty is a fundamentally important concept in the Law of Crime and indeed throughout the law. The Theft Act 1968 provides a partial, negative definition of dishonesty. Section 2(1) sets out three situations in which a defendant will not be dishonest.

A person’s appropriation of property belonging to another is not to be regarded as dishonest-

(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or

(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or

(c) (Except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. Nevertheless, all three of these situations depends on the defendant’s reasonable; regardless of whether the defendant has a correct belief or even if its just a reasonable belief; so long as the defendant has a genuine belief in one of these three situations then his is not guilty of the theft [1] .

The case of Turner [2] is an example of where section 2(1) [3] was considered, and the court of appeal had pointed out that the judge had dealt fully and correctly with the law on the point of honesty and in regards to the defendant’s belief. The judge in this case had stated the whole test of dishonesty is the mental element of belief [4] .

Putting the Theft Act aside, it is up to the jury and magistrates to determine what the meaning of dishonesty is within the context of the social atmosphere at the time. However, as ‘dishonesty’ is an ordinary word, the jury will not usually be directed in relation to its meaning instead this is when the jury would usually be directed to refer to the Ghost Test. Nevertheless, s2 [5] only applies in specific circumstances. It does not create a general rule or definition about dishonesty. In its Eighth Report, Criminal Law Revision Committee stated that it had used the word ‘dishonesty’ in preference to the word ‘fraudulently’ because: ‘the question “was this dishonest?" is easier for the jury to answer than the question “was this fraudulent?" dishonesty is something which laymen can recognise when they see it, whereas “fraud" may seem to involve technicalities which have to be explained by a lawyer [6] .

Since the view that dishonesty was something laymen could recognise, there was no need for a definition. Therefore, the earlier cases on the Theft Act took the view that whether the defendant’s state of mind was dishonest was a matter for the jury to decide. In the case of Brutus v Cozens [7] the House of Lords held that the meaning of an ordinary word such as dishonesty was not a question of law for the jury, but on of fact for the jury.

Initially in the case of Feely [8] , the court of appeal held that dishonesty is a question of fact for the jury to decide and that they should apply the current standards of ordinary honest people. This objective approach was then modified by the Court of Appeal in the case of Ghosh to include a second subjective part. This then gave the jury and magistrates a test to rely on when attempting to assess whether or not a defendant has acted dishonestly.

One of the main problems has been deciding if the test should be based on an objective or subjective view. This is vital because the first part of the test which is purely objective means the defendant is judged based on the standards of a reasonable and honest man and the second part which is purely subjective would be seen through the eyes of the defendant and it would be up to him to recognise that his conduct was dishonest according to the objective standard. Nevertheless, is was finally resolved in the Ghosh [9] case, which is now the leading case on the matter of dishonesty. The Court of Appeal in Ghosh [10] decide that matters of dishonesty should be a test of both objective and subjective elements.

This ‘complicated’ two-fold test requires a jury to determine two things. The first is whether according to the ordinary standards of reasonable and honest people what was done was in fact dishonest. If the jury believes it was not, then that is the end of the matter. However, if the jury decides otherwise then the second part of the test is applied and the jury will then consider whether the defendant realised what he was doing was by those standards dishonest. The defendant can only be convicted if both questions are answered yes to and are satisfied.

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 [11] , 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 However, it was argued 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).

The main criticisms of the test are based on the perceived dangers of leaving the matter as a question of fact for the jury and as the jury are not only given the task of deciding questions of what did the accused believe or intend but they are also left the responsibility of evaluating those beliefs and intentions. The Feely [12] approach appoints the jury to the role of ‘mini legislators’ [13] and the first part of the test preserves the principle that the issue of dishonesty is a matter of fact for jury and not the judge.

There are a number of disadvantages with this approach as standards of dishonesty may vary considerably from different juries trying the same case as the jury may consist of people who have quite low standards and might come to different decisions as to whether or not the defendant was dishonest. However, in contrast to this view The Law commission concluded in its consultation paper that ‘judges and magistrates should not be asked to set a moral standard on which criminal liability essentially depends. As a general rule, the law should say what is forbidden, and that should be informed by moral insights. A jury or magistrates should then be asked to apply the law by coming to factual conclusions, not moral ones. [14] 

Although much of the criticisms regarding The Ghosh Test warns that juries may apply low standards, there is also the danger that they might apply excessively high standards. This would be more of a problem as for crimes of dishonesty other then theft it is left for the jury to decide exclusively as Section 2 [15] only applies to theft.

The virtue of having the definition of dishonesty as a question of law rather than fact for the judge, applied in the ordinary way, by the jury to the facts as they believe them to be would be that the concept might be refined and developed by analogy with the states of mind specified in section 2 [16] - each of which implicitly recognises the proprietary rights of the owner. This would have the virtue of directing attention towards the victims property rights and the defendants attitude towards those rights. Nevertheless, it is said to be preferred to the current approach based on the vague standards of ‘ordinary people’.

The second part of the Ghosh Test presents further problems as some commentators argue that it creates a “Robin Hood defence" as it gives leeway and would absolve every defendant who honestly believed their conduct was honest from liability for theft. Under this approach Robin Hood who stole from the rich to give to the poor would not be dishonest. Nevertheless, the Ghosh test is not purely based on the defendant’s views and does not go as far as Gilks 1972 for example, in this case the judge directed the jury to consider whether the defendant himself thought he was acting honestly. This implies the defendants own standards were applied. This issue was resolved by the modification of the test from the case of Feely and now the Ghosh Test which is a hybrid of subjective and objective approaches which means it allows the jury to have the ultimate decision and the defendant is not his own legislator and will not be judged by his own standards and a person that has low standards of the general morality of the community will not escape liability for theft.

Professor Griew was one of the most passionate critics of the Ghosh Test as he believed it was flawed from the start as it is based on Feely and it perpetuates the circular argument of defining dishonesty in terms of honest men. He points out that there is no ordinary standard of honesty, no community norm, and therefore leaving dishonesty as a matter of fact for the jury to decide, without the benefit of legal guidance from the judge, will inevitably lead to inconsistent verdicts from the judge, uncertainty, and long and expensive trials [17] 

Professor Griew also criticises the test as he believed the ‘Robin Hood’ defence in the second part of the test has not been taken despite Lord Lane J believing it has been taken care of because surely if a defendant genuinely believed in the moral right of his action then he may well believe that right minded members of society will agree with him and professor Griew states this will inevitably lead to an acquittal.

In conclusion, the quest throughout the criminal law is for the isolation of blameworthy. As, all the tests for dishonesty have tied to combined the need to preserve objective standards within the criminal law with the need to maintain the importance of moral fault as explained in the case of Wasik [18] . The argument it that the criminal law is an institution of blame and punishment there ought to be clear correction between blameworthiness and criminal liability for the more serious offences [19] .

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