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Essay: The Ghosh Test

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Where dishonesty is discussed in statute, it’s only negatively defined.  Section 2(1) Theft Act 19681 gives the three situations in which a defendant isn’t dishonest in appropriating property.
Where none of these situations apply, dishonesty is governed by the Court of Appeal’s decision in R v Ghosh 1982 QB 2053, referred to as “the Ghosh Test”.  The test comprises two questions for the Jury.  The first is objective; was the conduct dishonest according to the ordinary standards of reasonable and honest people?  [R v Feely 1973 QB 530.  If no, the defendant isn’t guilty.  If yes, the second subjective question is asked; did the defendant realise that others would find his conduct dishonest?  This is a question of fact.  If yes, the defendant is guilty; if no, he isn’t [Unit 28 p.31].
In many cases, the dishonesty is said to be so obvious that there’s no need to apply the second subjective question, and the test becomes wholly objective as the defendant must have realised others would find his conduct dishonest  [Resource Book 2 p.155]
The ghosh test is important in English law because it’s used for all offences where dishonesty is an element of the mens rea [Unit 28 p.33].  If other aspects of the offence are present, prosecution may depend on this vital element of whether the defendant acted dishonestly [Elliot & Wood, p.773].  The necessity for the finding of dishonesty is in agreement with the purpose of ‘mens rea’, that (generally) a person can’t be prosecuted for an offence they didn’t intend to commit.  Hence, using the Ghosh test, if a person honestly believed others would have found his conduct honest, he could be acquitted provided the conduct wasn’t obviously dishonest.
There are limited arguments in favour of the Ghosh test, as it has attracted so much criticism.  In R v Feely, Lawton LJ reasons that “dishonesty” has an ordinary meaning in English language.  Dishonesty implies a “willful perversion of truth in order to deceive, cheat, or defraud; an intent to mislead – and commonly suggests a false appearance or double-dealing” [Merriam Webster].  The Jury should not need further direction from the judge in applying the word, as the definition is quite clear.  What’s more, the Jury should know what the current standards of ordinary decent people are, and can apply them without further help.  The Judge felt that a statute definition was only necessary for a word used in an unusual sense.
My own opinion is in agreement with those who think the test is “fraught with difficulties”.
It is a fundamental principle that parliament makes a law and the courts apply a set of facts to that law.  The ghosh test requires that the jury ‘make’ the law in deciding whether a defendant’s conduct is an offence – as oppose to deciding whether it falls within the legal definition of an offence [Law Commission Consultation Paper, p.779 Elliot & Wood] This is inconsistent with parliamentary supremacy i.e. Parliament as the supreme law maker [W200 Units 9 & 10 p.38], and the doctrine of separation of powers which states that the Judiciary and Legislative functions should be keep separate [W200 Units 9 & 10 p. 13 , Harris p. 64].
For the Jury to decide what constitutes dishonesty, they must create a scale by which to measure the defendant’s honesty against.  The Law Commission reject this idea of a scale, explaining that blameworthy isn’t quantifiable [Law Commission Consultation Paper, p.779 Elliot & Wood ].  As it can’t be quantified, the scale is going to be determined on what each Juror believes is morally right or wrong.
Each Jury is going to vary in age, race, colour, religion, upbringing and morals, resulting in diversity regarding what is believed to be morally dishonest.  Communities will differ widely in their attitudes.  This means that outcomes in like cases will differ [Griew, Reading 22 p. 147].  Consequently, prosecution or acquittal will depend which jury a person gets.  A crucial aspect of law is the importance of consistency and certainty, in relation to the Rule of Law [Elliot & Wood p. 780] and the doctrine of precedent [W200 Unit 4 p.94] – like cases should be judged alike.
Part of Dicey’s Rule of Law is that we know in law what we can and cannot do [A. V. Dicey in Harris, p.376; J. Raz in Allen & Thompson p. 206; Para. 5.20 Law Commission Consultation Paper, p.779 Elliot & Wood].  With the Ghosh test, dishonesty remains undefined and the Jury decides whether, in each case, the defendant is guilty according to their standards and not according to law – the Jury may even in themselves be ‘dishonest’ but apply a higher set of standards to the Defendant, resulting in “creative hypocrisy” [Griew, Resource Book 2 p.28].  It is impossible to predict outcomes, and a person cannot know whether his conduct is dishonest until he comes to court!
Individuals construe words and language differently, and to avoid this, the law defines many words of statutes, so that the same standards are applied consistently.  I think this approach should be adopted for ‘dishonesty’, as the diversity of the Jurors could result in the word being construed to mean different things [Griew, Resource Book 2 p. 145].
An aspect of the ghosh test is that if the conduct is so obviously dishonest, there’s no need for the subjective question.  However, what is obviously dishonest in one person’s eyes isn’t to another – for example, the conduct of Robin Hood   [R v Greenstein in Reading 22 p.148].
I think in like cases, if different juries reach different outcomes, it’s debatable whether the defendant has received a “fair…hearing by an independent and impartial tribunal” [Human Rights Act 1998 & ECHR Article 6 ].  Without clear direction to the Jury, a fair outcome can’t be guaranteed as a defendant’s prosecution rests on the Jury’s own opinions, not their application of his behaviour to the law.
The Jury comprises of ordinary people who are not, generally, trained in law or accustomed to performing “such complicated tasks” with the skills afforded to a magistrate or judge.  Asking them in effect to create the law and judge according to what they have created is illogical [Griew, Resource Book 2 p. 147].
In conclusion, whilst there was a clear need for guidance in construing whether a defendant is “dishonest”, the ghosh test needs to be abandoned, as it’s not consistent with the principles of the Rule of Law, and doesn’t offer certainty and consistency. The concept of a diverse jury deciding the interpretation of a word and then applying it, differently in each case, isn’t compatible with our system, and doesn’t guarantee a fair trial.  I therefore agree that it’s necessary to give a statutory definition of dishonesty.

Section 2(1) Theft Act 1968 in Elliot & Wood, Cases and Materials on Criminal Law (8th Ed.) 2001 – p.773 –Sweet & Maxwell, London
R v Ghosh 1982 QB 2053 in Elliot & Wood, Cases and Materials on Criminal Law (8th Ed.) 2001 – pp.775 – 778 –Sweet & Maxwell, London
R v Feely 1973 QB 530 in Elliot & Wood, Cases and Materials on Criminal Law (8th Ed.) 2001 – pp.774 – 775 –Sweet & Maxwell, London
Unit 28 ‘Theft’ – Unit 28: W201: Law the Individual and the State, The Open University, Milton Keynes
Lacey & Wells – Reconstructing Criminal Law (1998) Butterworths pp.264 – 268 in Resource Book 2 p.155 – W201: Law the Individual and the State, The Open University, Milton Keynes
Criminal Law Revision Committee, Eighth Report, Cmnd. 2977 in Elliot & Wood, Elliot & Wood, Cases and Materials on Criminal Law (8th Ed.) 2001 – pp.773 – 774 –Sweet & Maxwell, London
Human Rights Act 1998 pp. 542 – 551 in Allen, M. & Thompson, B. Cases and Materials on Consitutional and Adminstrative Law (6th Edition – 2000), Blackstones, London.
European Convention for the Protection of Human Rights and Fundamental Freedoms p. 511 in Allen, M. & Thompson, B. Cases and Materials on Consitutional and Adminstrative Law (6th Edition – 2000), Blackstones, London.
Manual 1: Unit 4: The Doctrine of Judicial Precedent (‘Why do we have this doctrine’) p.94 W200: Understanding Law (2001), The Open University, Milton Keynes
Griew. E – ‘Dishonesty: The Objections to Feely and Ghosh’ (1985) Crim LR 341 in Resource Book 2: Reading 22 p. 147, W201: Law the Individual and the State (2002) The Open University, Milton Keynes
Manual 2: Units 9 & 10: Introduction to Constitutional Principles; A: Constitutions (‘The Doctrine of the Separation of Powers’) p. 13 W200: Understanding Law (2001), The Open University, Milton Keynes
Harris, P. An Introduction to Law (5th Edition – 2000) p. 64 – Butterworths, London
(General) http://law.anu.edu.au/criminet/ttheft.html
J. Raz ‘The Rule of Law and its virtue’ (1977) 93 LQR, pp. 195 – 202 in Allen & Thompson Allen, M. & Thompson, B. Cases and Materials on Consitutional and Adminstrative Law (6th Edition – 2000) p.206 (‘Some Principles – All laws should be prospective, open & clear…’), Blackstones, London

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