Dishonesty in English Law
Establishing Criminal Liability for Intent in Theft and Fraud
Oct 25, 2009
Dishonesty is a key component of many crimes in English law, from the Theft Act 1968 to the Fraud Act 2006 and beyond. It establishes a significant portion of the mens rea leading to criminal responsibility and helps protect the truly honest person from unwitting liability for a crime.
What is Dishonesty?
The concept of dishonesty in law differs from its meaning in ordinary English. The Oxford English Dictionary defines dishonesty as a simple lack of honesty, trust or sincerity; in other words “dishonesty is what one points at when one says it”. It is in the eye of the beholder. In law, this translates into a morass of legal problems, as such a wide-fitting definition is not conducive of clear law-making. The law requires clarity, or lawyers cannot properly advise their clients and judges cannot give clear and easily-understood judgments.
Dishonesty and the Theft Act 1968
The Theft Act 1968 requires that a person dishonestly appropriate property belonging to another, with the intent of permanently depriving said other of it in order to be guilty of theft. However, the Act does not define dishonesty, save for providing three instances where a defendant must be found to be honest. Following section 2(1) of the 1968 Act, a person will not be dishonest if the appropriate property belonging to another if:
- it is done with the belief that the defendant has a right in law to the property;
- it is done with the belief that the owner would consent if they knew of the appropriation and the circumstances that surround it; or
- it is with the belief that the owner could not be discovered after taking reasonable steps to do so.
However, the Theft Act does not state that honesty is limited to these circumstances alone and the courts have not used them as a basis to limit honesty. Instead, section 2 merely limits the circumstances in which dishonesty is not possible, and the decision of what may constitute dishonesty has remained with the jury.
The Ghosh Test
The decision in R v. Ghosh [1982] laid out a standard test for dishonesty that has become fundamental to English criminal law. In Ghosh, the Court of Appeal laid out a two-stage test that the jury must follow to determine dishonesty where it cannot be established through the wording of the legislation that gave rise to the offence being tried.
The first stage is an objective test where the jury is asked to determine whether in their view a “reasonable and honest person” would think the defendant's actions dishonest. If not, the jury must find that the defendant is not dishonest.
If the jury find that the reasonable person would think the defendant's actions dishonest, they must undertake the second, subjective test. In this test, the jury must put themselves in the position of the defendant and ask themselves if the defendant realised that a reasonable, honest person would regard their actions as dishonest. If they find that the defendant would have realised this, they must find the defendant dishonest.
Dishonesty is a troublesome idea in English law, in part because of the nebulous definition of the word. It is a term based entirely on what it is not, rather than any clear idea of what it is. Because of this, the clarity of any law requiring dishonesty is limited, as the jury will be required to both make a judgment on what honesty is in any given situation and also whether the defendant would have appreciated what the jury feels honesty is.
The subjective nature of the law on dishonesty has given rise to many calls to clarify the law but as it stands, it is this subjective test that is the only true way of maintaining the protection the law grants to those who truly did not intend any crime. Without dishonesty, unintentional appropriation of another's property could lead to criminal convictions, and many miscarriages of justice.
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