The K-Zone: R v Ghosh (1982)

This case ([1982] QB 1052) demonstrates some features of `dishonesty' in the definition of theft in the TheftAct1968. Ghosh was convicted of obtaining money by deception, and intention to obtain money by deception. During his work as a locum surgeon he obtained money by claiming fees for work he had not carried out, or had carried out under the provisions of the NHS. His appeal was on the basis that the trial judge had misdirected the jury on the meaning of `dishonesty'. What he (the judge) had said, in fact, was to the effect that the jury members would have to use their common sense to determine whether the accused's conduct had been dishonest or not. It was not a term that the judge should have to define. On appeal it was argued that the judge should have warned the jury that dishonesty was a state of mind of the accused, and not an objective measure. Before considering the judgement in this case, it is worth reviewing the development of legal thinking on dishonesty in the recent past.

In cases where dishonesty is part of the mens rea, the authorities have tended to support either a very subjective, or a very objective view. A demonstration of the subjective approach is seen in R v Landy [1981] 1 WLR 355, where the judgement of the Court of Appeal was that the jury should be directed to `look into the mind of the defendant' to determine whether he was acting honestly or not. There was little discussion here about objective standards of honesty. In effect, so long as the accused believed himself to be acting honestly, whatever other people would think, that was enough to defeat a charge of dishonesty.

On the other hand, in R v Greenstein [1975] 1 WLR 1353, it was specifically stated that the jury should not attempt to use the accused's own standards of honesty to judge him, else ``everybody accused of dishonesty, if he were to be tested by his own standards, would be acquitted automatically''. Clearly cases like this are in some conflict with cases like Landy.

In R v McIvor [1982] 1 WLR 409 the Court of Appeal was faced with the unpalatable task of reconciling two lines of reasoning that were fundamentally incompatible. To declare one approach to be superior to the other would have been to allow that, to some extent, a large number of cases had been decided in a suboptimal way in the past. Ingeniously, the ruling they adopted was that the subjective approach -- as typified in Landy -- is to be preferred to the objective approach -- in Greenstein -- where the charge is a conspiracy to defraud or to steal, but that the objective approach is preferable in cases of actual fraud or theft.

In this case, the Court of Appeal decided, reluctantly, that the principle in McIvor was neither justifiable in theory, nor workable in practice. Instead they asserted that the difficulties that had arisen in this area resulted from a misunderstanding of the nature of a `subjective' measure of dishonesty. The state of the accused's mind is important, but only to the extent that he knew or did not know how his actions would accord with ordinary people.

As a result of this ruling, the position now appears to be as follows. For offences involving fraud, deceit, theft (including attempts and conspiracy), an act is dishonest if

it would be seen as dishonest by an `ordinary decent' person (i.e., a jury member), and
the accused was aware of this.

It seems, therefore, that there are two defences against a claim of dishonesty. First, it can be claimed that the act was one that would not have been seen as dishonest by an ordinary person. If this can be sustained then the state of mind of the accused is irrelevant. If it can't, then one can attempt to show that the accused was unaware that his action would be deemed dishonest by other people. The judgement in Ghosh also stated that in the majority of cases it would be obvious that the accsed knew he was acting in a way that would be deemed dishonest.

In a sense, this ruling is even more ingenious that that in McIvor, because although McIvor was disapproved, it was done in such a way that it did not undermine any of the reasoning that had led to it. In a sense, Ghosh seems to say that there is no distinction between a subjective and an objective test for dishonesty, if `subjective' is interpreted in the right way.

Philosophically, however, there has to be some question about a definition of dishonesty in terms of `things ordinary, decent people would deem dishonest'. This is surely circular, like defining an artist as a `person recognized as an artist'.

The complexity and extent of the argument on this subject surely result from attempts to define the undefinable. Anyone can give an example of dishonest behaviour, but not everyone could attempt a definition of the word. Even if everyone agreed on the dishonesty in specific cases, in all likelihood they would disagree on the definition. The writers of statutes know this; they can use the word `dishonesty', just as they can use words like `malice' and `intention', and leave courts to decide the particulars in each case. Unfortunately, the principle of StareDecisis means that decisions in individual cases have to be reconciled with those in previous cases, which is like asking everyone to agree with a definition of an undefinable term.

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