The Test of Dishonesty in R. v. Ghosh

Editorial Committee of the Cambridge Law Journal

The Test of Dishonesty in R. v. GhoshAuthor(s): Kenneth CampbellSource: The Cambridge Law Journal, Vol. 43, No. 2 (Nov., 1984), pp. 349-360Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506656 .

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Cambridge Law Journal, 43(2), November 1984. pp. 349-360 Printed in Great Britain

THE TEST OF DISHONESTY IN R. v. GHOSH

Kenneth Campbell*

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,1 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. One line, however, said 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). In R. v. Ghosh2 the Court q{ Appeal has reviewed the previous

authorities and supplied a new test. The implication is, presumably, that all cases in so far as inconsistent with Ghosh are to be regarded as overruled. The case could, perhaps, be seen as raising issues about

the circumstances under which the Criminal Division has power to

depart from its own previous decisions. Since, however, no such

issues appear to have been raised before the court I shall say nothing about them here.

My main aim in this article will be to subject the test in Ghosh to

close scrutiny. This enterprise is worthwhile for two reasons. First, theft and theft-related offences are amongst the most common before

the courts. No one can doubt the social importance of getting the test

of dishonesty right or, at the least, fairly coherent. Secondly, the

matter has not, to date, been squarely considered by the House of

Lords. So we are not yet presented with a conclusive interpretation. There is still room to argue with more than just academic purpose in

mind.

Some writers welcome the decision in Ghosh as providing a

clarification of the law.3 Others have been more sceptical as to its

merits.4 Doubtless there is much to be said in favour of the ruling to

the extent that it aims to provide a test which is intended, unlike

previous attempts at a formulation, to apply to all references to the

Lecturer in Law, King's College, London. [1973] Q.B. 530. [1982] Q.B. 1053. This report lists all the important previous authorities, so I shall not set them out here. J. C Smith, "Commentary on R. v. Ghosh'' [1982] Crim.L.R. 608. G. Williams, "The Standard of Honesty" (1983) 133 N.L.J. 636.

349



C.L.J. Test of Dishonesty in R. v. Ghosh 351

(1) Was that which the accused did

dishonest by common standards?

N(5 Yes

Not Guilty (2) Was that which the accused

did believed by the accused

to be dishonest by common

standards?

No Yes

Not Guilty Guilty

I shall refer to the two parts of this test as "limb (1)" and "limb (2)." Before I proceed further, however, let me mention a possible

ambiguity in the test.

The court uses a number of different formulations. These are that

an accused is entitled to be acquitted if his state of mind is that "he

did not know," or if it is not the case that he "must have realised" or

"knew" or "might have believed," that what he was doing was

dishonest.6 Probably most of these formulations are simply stylistic variants of one another and I shall ignore minor differences amongst them. There remains at least one point of substance. Is an accused

entitled to an acquittal on the grounds of no dishonesty only if he

believes that what he is doing is not dishonest, or is it sufficient that

he has no view one way or the other on the matter? I, for example, have no view either way as to whether not pointing out to a

shopkeeper that he has given one too much change is regarded as

dishonest by common standards. I just do not know what the

reasonable and honest man would think about this. Would a mental

attitude of this type entitle me to an acquittal? The test is not

absolutely clear on this, but if anything it suggests that absence of

belief either way suffices for an acquittal. So I shall assume that this is

so. It will make no difference to the main line of argument if the

proper interpretation is the othier one.7

The first thing to note about the test is that it contains at least no

; 11982] Q.B. 1053, 1064C et seq. This point is not clarified by the subsequent decision of the Court of Appeal in Woolven (1983) 77 Cr.App.R. 231. The trial judge direeted the jury thus, "If. . . your final conclusion is that notwithstanding what the accused did he may not have regarded it as dishonest, that is an answer to this charge" (p. 236). This is somewhat ambiguous on the point, but, if anything, suggests that a "don't know" suffices for an acquittal. The Court of Appeal approved that direction, but said that it had brought home to the jury that they must acquit if "they thought he might have regarded his actions as honest" (p. 236), which, if anything, suggests that a "don't know" does not suffice. In this article I shall not discuss one implication of Woolven, namely that the Court of Appeal may, in time, be bound to infer from its own decision in Ghosh that the test in that case itself swallows up all ofthe partial definition of "dishonestly" which is provided by s.2 of the 1968 Act.



352 The Cambridge Law Journal [1984]

overt referenee to the accused's own moral judgement of his conduct.

If the test is taken at face value then a consequence of it, and one for

which the court was aiming, is that it is no defence for the accused to

say that he did not regard his act as dishonest by his own standards.

So it seems to avoid the danger of the law being for any man simply what his conscience dictates. But that danger would equally be

avoided by a test which consisted only of limb (1). Limb (2) adds

greatly to the complexity of the question the jury have to ask

themselves. So why could limb (1) not have stood alone? It seems

that the answer is to be found in the following passage from the

judgement of the court delivered by Lord Lane C.J.:

Is "dishonestly" in section 1 of the Theft Act 1968 intended to characterise a course of conduct? Or is it intended to describe a state of mind? If the former, then we can well understand that it could be established independently of the knowledge or belief of the accused. But if, as we think, it is the latter, then the

knowledge and belief of the accused are at the root of the

problem. Take for example a man who comes here from a country

where public transport is free. On his first day here he travels on a bus. He gets off without paying. He never had any intention of

paying. His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest. It seems to us that in using the word "dishonestly" in the Theft Act 1968, Parliament cannot have intended to catch dishonest conduct in that sense, that is to say conduct to which no moral obloquy could possibly attach. This is sufficiently established by the

partial definition in section 2 of the Theft Act itself. AU the matters covered by section 2(1) relate to the belief of the accused. Section 2(2) relates to his willingness to pay. A man's belief and his willingness to pay are things which can only be established subjectively. It is difficult to see how a partially subjective definition can be made to work in harness with the test which in all other respects is wholly objective.

If we are right that dishonesty is something in the mind of the accused (what Professor Glanville Williams calls "a special mental state"), then if the mind of the accused is honest, it cannot be deemed dishonest merely because members of the

jury would have regarded it as dishonest to embark on that course of conduct.

So we would reject the simple uncomplicated approach that the test is purely objective, however attractive from the practical point of view that solution may be.8

This passage exhibits a puzzling feature. Its general tenor, until the very last sentence, is to reject premise (4). Up to that point the court seems to be veering towards a totally subjective test. The last

sentence, however, by and large accepts the opposite, namely the

8 [1982] Q.B. 1053, 1063F-1064B.




common standards test; subject only to limb (2). This puzzling feature is symptomatic of a confusion in the reasons for including limb (2).

The court starts by impliedly equating the distinction between the

common standards test and a test taking account ofthe accused's own

beliefs and intentions with the distinction between a course of

conduct and a state of mind. This is completely misconceived. The

common standards test, on any reasonable interpretation, applies to

the accused's conduct in the light of his beliefs and intentions. Take

as an example a case in which the accused appropriates money

belonging to another without his consent and knowing that there is no

consent but believing that he can repay the money shortly and

intending to do so.9 The common standards test of dishonesty is not

one which asks, in vacuo, whether it is dishonest to take another's

money without his consent and knowing that there is no consent. The

test is: was it dishonest by common standards for the accused to

appropriate the money given that he knew that there was no consent

to his doing so but believed that he could repay shortly and intended

to do so?10

To be sure, some of the cases are obscure on this point, but that

this has to be the reasonable interpretation is shown by considering how questions of dishonesty if in vacuo could possibly be construed.

There seem to be just two possibilities. (1) That they are questions about generalisations. Does the jury think that it is true of the

majority of cases in which someone takes money from another

knowing that there is no consent that he is dishonest? (2) That they are questions which imply that there are no other considerations

relevant to the issue of dishonesty. Does the jury think that someone who takes money from another knowing that there is no consent is

dishonest, given that there are no other considerations relevant to the issue of dishonesty?

The two interpretations are not necessarily co-extensive as to

their results. It may be true that in the majority of such cases there

are indeed other relevant factors. So the question may be answered "No" on interpretation (1), but "Yes" on interpretation (2).

However, what possible grounds can there be for using as part of

the test such questions in vacuo on either interpretation? The accused is surely not to be judged by what may be true in the majority of

* Cf. Feely, supra. This same interpretation is advocated in E. Griew, The Theft Acts 1968and 1978. 4th ed. (1982), pp. 57-58 and assumed in R. Cross, and P. A. Jones, Introduction to Criminal Law, 10th ed., edited by R. E. Card (1984), pp. 234-237. At least in theft the test even in vacuo has to allow for the possibility of one belief of the accused, namely that he has a legal right to appropriate the property, either by operation of law or by permission of the person to whom the property belongs. This, of course, is because s.2 of the 1968 Act makes it mandatory to allow such a belief as a defence.




cases, but not necessarily in his, or by what would be true if there

were no other relevant factors when there may indeed be such

factors. One may dislike the whole idea of a conviction being

dependent in this way on a jury's moral judgement; but if that is the

kind of test we are obliged to have then it would seem clearly wrong to exclude anything which would be relevant to that judgement.

On any reasonable interpretation of the common standards test, the jury have to ask themselves two questions. First, did the accused

have the beliefs and intentions which he says he did? Secondly, if he

did, was it dishonest by common standards for him to act as he did

having those beliefs and intentions? The court asserts that it is

difficult to see how one can have a test which is partially subjective in

harness with one which is partially objective. But there is nothing incoherent about a test which is subjective in the sense that it takes

the accused's beliefs and intentions into account, but objective in the

sense that the moral judgement in question is not his own moral

judgement. Take then the court's own example. The common standards test,

on any reasonable interpretation, would ask: was it dishonest by common standards for the accused to travel on British public

transport without paying when he genuinely believed, albeit

erroneously, that British public transport is, like that of his own

country, free? And the answer to that will surely be "No."

So this reason given by the court for including limb (2) turns out, on inspection, to be no reason at all. Properly interpreted, limb (1) by itself gives the answer to this example which the court believed could

be obtained only by including limb (2). Another reason given by the court for including limb (2) is that

the partial definition of dishonesty in section 2 of the 1968 Act refers

to the beliefs and intentions of the accused and that, therefore,

dishonesty is "something in the mind of the accused." Taken,

however, in the way the court takes this, it is a non sequitur. That a

person's intentions and his beliefs as to the facts (including, if

necessary, the law) have to be taken into account in assessing his

honesty is perfectly compatible with the view that his honesty is not a

matter of his own moral judgement. And there is nothing in section 2

which refers to a mental state of the accused other than his factual

beliefs and his intentions.

The court realises, of course, that it is too dangerous to make limb

(2) refer simply to the accused's own moral judgement. So instead

limb (2) is made to refer to what, at first sight, seems to be a purely

factual judgement by the accused, namely one about the content of

other people's moral judgements of his own conduct. If it really is a

purely factual judgement then the charge of a non sequitur might be




avoided. But is it a purely factual judgement? I shall argue later that

appearances are deceptive, and that there is more of the accused's

own moral judgement in this test than one realises at first. Let me,

however, for the moment, give the test the benefit of the doubt on

this point. Assume that it really is a question about what the accused

thinks that other people think.

That brings us to the second main point mentioned at the outset.

On this assumption, considered just from the point of view of its own

internal structure, the Ghosh test can be shown to be either, on one

interpretation, self-defeating in the light of its own rationale or, on

another interpretation, itself demonstrative of the redundancy of one

of its own limbs. First the self-defeating nature.

Limb (2) concerns the accused's belief as to the common

standards. But the common standards with regard to what? It is not a

complete answer to say "the accused's conduct," because this once

again opens up the question whether that means his conduct

described in a way which does or does not take into account his

beliefs as to his factual circumstanees and his intentions.

Suppose that it is a description in vacuo, and let us suppose, first, that this is to be interpreted as a generalisation. Then the test appears to be: does the accused in, say, the court's hypothetical case believe

that,reasonable and honest people would regard it as dishonest in

most cases for people to travel on public transport without paying? If

so, the jury would probably say, "Yes, this is dishonest." But then, unless they think that the accused has a very distorted view of the

notions of other people, they are bound to conclude that he would

think that that is what they think. If the question in vacuo is

interpreted as a generalisation one is going to get a "Yes" to limb (2), not the "No" which the court is seeking to get in a case of this type.

Suppose, alternatively, that the description in vacuo is to be taken

as one which implicitly denies the presence of relevant factors other

than those mentioned. Then the question for the jury is: did the

accused believe that the reasonable and honest man would believe

that his conduct was dishonest, given that there were no factors

relevant to that moral judgement other than that he knowingly travelled on public transport without paying? Again, unless the jury believes that the accused has a very distorted view of others' moral

judgements, they must conclude that his answer to this is "Yes."

On either interpretation of the question as a question in vacuo the

answer will almost certainly be the opposite of that which the court is

aiming to get. So it cannot be a question in vacuo since the Ghosh test

would then defeat the very end it was designed, by the court's own

lights, to meet.

Suppose, however, that the proper interpretation of limb (2) is:




So far, I have assumed that limb (1) really is just a question of

social fact, since this seemed the only way to make even coherent the

idea that limb (2) could be a question about the answer to limb (1). But the issue of whether this assumption is correct can now no longer be postponed.

The common standards test is indeed a factual one in that the

answer to the question of dishonesty is classified by the law as a

question of fact and is decided on indictment by the jury. But the fact

in question is not a fact in issue. One can no more in a case of theft

lead evidence as to what most people regard as dishonest than in an

offence of negligence one can lead evidence as to what most people

regard as negligent. It is not that this simply reflects the practical difficulties which

would flow from allowing such evidence as admissible. It reflects the

point that questions of fact of this type are not questions of fact which are even in principle capable of proof in a court. Not everything which the law classifies as a question of fact is a fact in a sense which is opposed to a value judgement. To be sure, juries are not asked to

say simply what their judgement of dishonesty is; but neither are they asked to say simply what they believe most people regard as

dishonest. Just as in offences of negligence the jury are asked to say what the reasonable and prudent man would have thought or done, so, in theft and its correlates, they are asked to say what the reasonable and honest man would have thought or done.

These tests contain an element of moral judgement made from the point of view of a partially idealised type. In other words, they are moral judgements at one remove. One takes a hypothetical person possessed in reasonable degree of a particular virtue and asks what moral judgement he would pass. Of course, the jury, in reaching their

conclusion, are entitled, and ought, to draw on their own moral views and what they believe are the moral views of others. But the test is not simply reducible to either of these sources.

This refers back to the point I mentioned earlier and explains why limb (2) cannot reflect the defence of mistake of fact. The defence, as

normally understood, does not apply to those legally-classified questions of fact which contain elements of moral judgement. It is

confined, by and large, to those facts which are facts in issue. This means that the inclusion of limb (2) cannot be justified by

There is an obscure passage on this point in Woolven. The Court of Appeal said, "When the appellant was cross-examined as to whether he regarded his conduct as dishonest, he at first said that he was not sure whether it was or not. . . He finally agreed that other people would think that his behaviour was dishonest" (p. 234). Leaving aside the point about the status of a "don't know," if this remark suggests that a person can be guilty if, on later reflection, he agrees that what he did was dishonest, irrespective of what he thought at the time, then this has to be wrong on principle.




have it based on the reasonable and honest man than simply on the purely personal assessments of a fairly random group of

people.12 The second reason for opposing this construction is that it makes

the meaning of limb (2) so extraordinary as to be, in many cases, unworkable. On this construction it becomes a question of whether

the accused had, at the time of the offence, a mistaken belief as to the

collective outcome of the individual moral judgements of the

members of the jury by which he would in the event be tried, if he

would be tried at all. In other words, it makes it dependent on

the accused's belief as to the outcome of a hypothetical future event.

Almost no accused is going to have consciously entertained, at the

time of the offence, a belief, either positive or negative, of this

particular content. So we should be left trying to discover if he

believed this by implication from his more general conscious beliefs.

If an accused believed that absolutely no one would regard his

conduct as dishonest, then presumably it could be said that he

believed that no jury would regard his conduct as dishonest. But if he

admits that he knew that there might be some people who could

regard it as dishonest then, without inquiring into such matters as the

accused's belief about the likely composition of any jury by which he

might be tried, one cannot answer the question whether he impliedly believed that the jury would, or would not, regard it as dishonest.

And it seems clear that to start inquiring about these further matters is to enter the realm of the preposterous. If limb (1) is taken to refer to the personal moral judgements of the members of the jury then

limb (2) in many cases makes simply no practical sense.

So, having ruled out these two alternative constructions, we are back to the view that limb (1) really does refer to the reasonable and honest man. This is a possible gauge of dishonesty. But no one should be seduced into thinking that it is a test of pure social fact, thus

allowing in the defence of mistake of fact. It is a partially idealised test with a necessary component of moral evaluation which will vary from jury to jury. So the inclusion of limb (2) cannot be justified by reference to this doctrine.

Let me summarise. The inclusion of limb (2) is not justified by the reasons stated by the court. Nor is it readily assimilable to any existing legal doctrine. Furthermore it seems that limb (2) does not in fact fully avoid the danger of an accused being entitled to an acquittal on the basis of his own conception of honesty. When the sheer

complexity of the two-part test is also taken into account it seems to

12 1 am not, of course, claiming that there may not be cases in which juries fail to grasp the distinction and simply apply their own standards even though direeted to apply that of the reasonable and honest man.




be more than just arguable that it would be better to have limb (1),

properly interpreted, alone.

As stated at the outset, however, I have not sought to challenge

premises (l)-(4) because I doubt if these are under practical discussion at the present time.

The 1968 Act was a beneficial reform, but everyone agrees that it

had its faults, as indeed all legislation must. In Ghosh we have seen

the Court of Appeal take upon itself an almost equally daring

law-creating role, largely as a result of that which had been left as a

partial void by the 1968 Act itself. I have argued here for a negative assessment of this particular way of filling the gap. Perhaps, however, there will be others who can find more to be said for the decision than

anyone has yet been able to suggest.13

1 I am grateful to Dr. Helen Bcynon, Mrs. Patricia Leopold and Mr. Peter Schofield for some helpful comments on an earlier version of this article.



The Test of Dishonesty in R. v. Ghosh

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