Dishonesty

Question 1

What does dishonesty involve?

Answer 1

involves both a judgment about D’s state of mind and about honest standards of behaviour.

Question 2

Why is the role of dishonesty critical?

Answer 2

With the other elements of theft being interpreted widely by the courts, and potentially applying to apparently innocent conduct, the role of dishonesty is crucial in narrowing the offence to its target mischief only (Griew, ‘Dishonesty: The Objections to Feely and Ghosh’)

Question 3

Is dishonesty defined?

Answer 3

not defined in the TA, rather the S 2 provides three situations where D is not dishonest, thus limiting the jury’s remit.

Question 4

What is s 2(2)

Answer 4

S 2(2) also tells us one state of mind that may be dishonest, but this does not limit the jury.

Question 5

What is the first example where there will be no dishonesty?

Answer 5

Where D believed she had a legal right to the property she appropriated s 2(1)

Question 6

If D believes he has a legal right how is this judged?

Answer 6

The belief is to be judged subjectively. s.2(1)(a) therefore allows a genuine mistake of civil law to operate in D’s favour (cf A-G’s Ref (No 2 of 1982: a director of a company could steal from the company the CA accepted that is directors genuinely believe entitled in law to appropriate then they are not dishonest even if they are wrong if their belief)

Question 7

Does D’s belief need to be reasonable for s 2(1)(a)

Answer 7

D’s belief need not be reasonable or based on an accurate understanding of the law. As long as D honestly believed she had a legal right to take the property, she will not be dishonest.

Question 8

What its 2(1)(b)

Answer 8

Where D believed that V would have consented to the appropriation S 2(1)(b)

Question 9

how is the belief of consent addressed?

Answer 9

belief’ raises a subjective question, and D is protected even if he is mistaken about whether consent would have been given. D’s belief need not be accurate or reasonable as long as D honestly believed that V would have consented e.g. waitress who takes money from the till to get home.

Question 10

What is the final example where there is no dishonesty?

Answer 10

Where D appropriates property believed that the owner is undiscoverable.

Question 11

How if the belief about undiscoverability assessed?

Answer 11

An element of objectivity comes in via the requirement of ‘reasonable steps’ – it cannot be for D alone to decide what steps are reasonable.

Question 12

What does s 2(2)

Answer 12

A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.’ It is not necessarily a feature to leave the V worse off.

Question 13

Facts of `Feely

Answer 13

D borrowed cash from the till despite being told not to do it. Trial judge told the jury that this was dishonest in law. CA allowed the appeal saying that it should have been for the jury to decide and they should do so using their standards or current ordinary people.

Question 14

Bogglen v Williams

Answer 14

D’s electricity supply was cut off for non-payment. He reconnected it himself, having informed his supplier, in the belief that he would be able to pay at the next due date. On a charge of dishonestly abstracting electricity (s.13), D’s belief was held not to be a relevant matter

Question 15

Facts of Ghosh

Answer 15

D’s electricity supply was cut off for non-payment. He reconnected it himself, having informed his supplier, in the belief that he would be able to pay at the next due date. On a charge of dishonestly abstracting electricity (s.13), D’s belief was held to be a relevant matter

Question 16

What is the Ghosh test

Answer 16

1) according to the ordinary standards of reasonable and honest people what was done was dishonest. (objective limb)
If it was dishonest by those standards
2) the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. (subjective limb)

Question 17

What does the second limb of Ghosh produce when applied literally

Answer 17

Robin Hood effect A D who appreciates the community norm and what is acceptable is going to be guilty whereas, someone who is disconnected from that common standard can argue for an acquittal. Argued the ‘Robin Hood’ effect

Question 18

Why was the Robin Hood effect criticised in Ivey

Answer 18

The principal objection to the second limb of the Ghosh test is that the less the defendant’s standards conform to what society in general expects, the less likely he is to be held criminally responsible for his behaviour

Question 19

What happened in Ivey v Genting Casinos

Answer 19

D won over 7m in a casino card game of chance, by recognising patterns on the backs of cards which he and an accomplice had induced the innocent dealer to present so as to facilitated the recognition, and stack the odds in his favour. The issue in this civil action was whether D had ‘cheated’ – if so the casino was not obliged to pay. The SC held that he had, and rejected an argument that cheating includes an element of dishonesty (eg a blatant tripping of an opponent in a race would still be cheating). But, even if it did, D could not avoid a finding of dishonesty by relying on the incorrect Ghosh limb (ii). The proper test is:

Question 20

What is the test stemming from Ivey

Answer 20

1) must ascertain, subjectively, the actual state of the individual’s knowledge or belief as to the facts, it is not an additional requirement that his belief must be reasonable, the question is whether it is genuinely held. 2) Then the question to whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the objective standards of the ordinary decent people. There is no requirement that D must appreciate that what he has done is, by those standards dishonest.

Question 21

What is the issue with Ivey?

Answer 21

It is obiter

Question 22

Sum up Ivey

Answer 22

part subjective, part objective test- The subjective part is now considered first and it concerns D’s state of mind (in the sense of his beliefs and knowledge) NOT his appreciation of the ordinary standard of honesty

Question 23

Is Ivey a better test?

Answer 23

Yes, in so far as Robin Hood test was always an anomaly. Doesn’t leave anyone open to conviction who shouldn’t be.

Question 24

Cases that might fall outside of Ghosh

Answer 24

Hayes in which the fact that D was only following the accepted practices of his colleagues in the banking world was said to be clearly relevant to the second limb of Ghosh (but would presumably now be irrelevant). OR Hayes in which the fact that D was only following the accepted practices of his colleagues in the banking world was said to be clearly relevant to the second limb of Ghosh (but would presumably now be irrelevant).

Question 25

Issue with both Ghosh and iVey

Answer 25

• Both Ghosh and Ivey accept that the jury sets the standard for dishonesty. But does this:
• Leaves a fundamental question of law to the jury? (cf the similar issue in relation to gross negligence manslaughter)

Question 26

Will Ivey be followed?

Answer 26

all the indications are that the CA (Criminal Division) will choose to follow Ivey,

Question 27

Palbon

Answer 27

a pre-Ivey trial which got to the CA last month (ie post-Ivey). At para 23 there is a notable dictum that the Ivey test would now be applied and that therefore Pabon had been given the ‘benefit’ of Ghosh limb (ii) to which he would not in future be entitled. This may be taken to suggest that the CA will simply proceed on the basis of acceptance that Ivey is to be applied, and Ghosh will fall out of use without formal overruling.

Question 28

Another indication that Ivey will be followed

Answer 28

So if trial judges follow the Compendium and routinely apply Ivey, and if counsel do not think it worth appealing the point, Ghosh may never be the subject of a specific appeal

Question 29

Would there be a case worth appealing?

Answer 29

One that some scholars are currently discussing is in relation to the Fraud Act 2006 s.2 where D uses a deception to get property to which he is, or believes himself to be, entitled. As there is no ‘claim of right’ provision in the Fraud Act, the question is one for the jury, and arguably D is more at risk of conviction under Ivey. The jury may think he was dishonest in using deception to get what he wanted even if he was/thought he was entitled to it. Ghosh limb (ii) allowed D a better chance to win this argument, if he genuinely thought that what he did would be acceptable to ordinary decent people. If convicted therefore, such a D might launch an appeal saying Ghosh should be followed.