Introduction
The concept of 'dishonesty' is a central element, or mens rea, required to establish the offence of theft under section 1 of the Theft Act 1968. Without proving that the defendant acted dishonestly, a conviction for theft cannot be secured. However, the 1968 Act does not provide a complete definition of what it means to be dishonest. Instead, it offers a partial, negative definition, leaving the courts to develop a positive test through common law. This essay will explain the meaning of dishonesty by first looking at the provisions of the Theft Act 1968, before tracing the development of the common law test from the case of R v Ghosh to the current standard established in Ivey v Genting Casinos (UK) Ltd.
The Partial Definition in the Theft Act 1968
The Theft Act 1968 does not define what dishonesty is, but section 2(1) outlines three specific situations in which a person’s appropriation of property is not to be regarded as dishonest. These are circumstances where the defendant holds a genuine belief, and it is the belief that is important, not whether it is a reasonable one. The three situations are:
- s.2(1)(a): If the defendant appropriates the property in the belief that they have a right in law to deprive the other of it. For example, a person taking goods from a debtor in the genuine but mistaken belief they are entitled to do so as security for the debt.
- s.2(1)(b): If the defendant appropriates the property in the belief that they would have the other’s consent if the other person knew of the appropriation and the circumstances of it. An example could be an employee taking home a company pen, genuinely believing their employer would not mind.
- s.2(1)(c): If the defendant appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. This is often known as the 'finder's defence'. For instance, finding a low-value banknote on a busy public street where there is no realistic way of finding the owner.
If a defendant's state of mind does not fall into one of these three categories, the question of dishonesty must be determined by the common law test.
The Old Common Law Test: R v Ghosh
For over thirty years, the leading test for dishonesty was established in R v Ghosh [1982] QB 1053. This case created a two-part test for the jury to consider. Firstly, they had to ask whether the defendant's conduct was dishonest by the standards of ordinary, reasonable and honest people. This is an objective test. If the answer was no, the defendant was not dishonest. If the answer was yes, the jury had to proceed to the second question: did the defendant realise that what they were doing was dishonest by those standards? This is a subjective test.
The Ghosh test combined an objective assessment of the conduct with a subjective assessment of the defendant’s awareness. However, this test was criticised over the years. One major problem was that it could allow a defendant to be acquitted if they could convince a jury that they genuinely did not believe their actions were dishonest by ordinary standards, even if most people would find their conduct to be clearly so. This could lead to inconsistent and unjust outcomes.
The Current Test: Ivey v Genting Casinos
The law changed significantly with the Supreme Court’s decision in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. Although this was a civil case concerning a professional gambler accused of cheating, the court took the opportunity to review the law on dishonesty and overrule the test in Ghosh. The Supreme Court established a new, two-stage test:
- What was the actual state of the defendant’s knowledge or belief as to the facts? (This is a subjective stage for the jury to ascertain).
- In light of the defendant's knowledge and belief, was their conduct dishonest by the standards of ordinary decent people? (This is an objective test applied by the jury).
The key difference from Ghosh is the removal of the second subjective limb. It is no longer necessary for the prosecution to prove that the defendant themselves realised their conduct was dishonest. The jury simply has to judge the defendant’s conduct, based on the facts as the defendant believed them to be, against the objective standards of ordinary people. The Supreme Court in Ivey argued that the Ghosh test had "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" (para 58). As there was initial uncertainty whether the ruling in a civil case would apply to criminal law, the Court of Appeal in R v Barton and Booth [2020] EWCA Crim 575 confirmed that the test for dishonesty laid out in Ivey is now the definitive test for all criminal cases in England and Wales.
Conclusion
In conclusion, the meaning of 'dishonestly' under the Theft Act 1968 is determined by a combination of statute and common law. Section 2 of the Act provides specific defences, but in most cases, dishonesty is a question for the jury. For many years, this was decided by the two-part Ghosh test, which included a subjective element regarding the defendant's own awareness of their dishonesty. However, the law has now been clarified and simplified. Following the landmark Supreme Court decision in Ivey and its confirmation in Barton and Booth, the test is now a two-stage process which ultimately asks whether the defendant’s conduct was dishonest by the objective standards of ordinary, decent people, based on the facts as the defendant knew them.
References
Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67
R v Barton and Booth [2020] EWCA Crim 575
R v Ghosh [1982] QB 1053
Theft Act 1968
