Thread: The 'Ghosh' test of dishonesty - worldwide survey

The Bar Council report that Brunel University and the British Science Association are calling for a review of the test for dishonesty.

The current test for dishonesty is the two-stage objective/subjective test set out by the Court of Appeal in R v Ghosh [1982] EWCA Crim:

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.”

Dr Stefan Fafinski and Dr Emily Finch, criminal lawyers and social scientists at Brunel Law School, believe that the Ghosh test is flawed because it is based on an unattainable common standard of ‘dishonesty’.

To discover how public perceptions of dishonesty can vary (and therefore affect the outcome of criminal trials), Brunel University and the British Science Association announce the start of an international scientific study into dishonesty.

Funded by the Economic and Social Research Council (ESRC), Honesty Lab, is an interactive online survey open to members of the public across the globe. The aim is to get 20,000 people to complete the brief online study over the coming months and the results will be revealed at the British Science Festival in Surrey in September 2009.

Under current criminal law, there is no definition of dishonesty but a defendant is found to have acted dishonestly if they were aware that their conduct was dishonest in the eyes of reasonable and honest people.

The 'Ghosh' test is quite good since it leaves for the jury to decide about whether the defendant is guilty or not.It also mean that if Robin Hood was from our century he would be without any doubt be guilty of theft,isn't it?Because the test is from what the reasonable/honest man would have done but I have a question whether the jury need to consider a person who has the same sex and characteristics of the defendant??

The act does not give any definition of dishonesty but it however give when a person cannot be dishonest:
1.He has the right in law to deprive the other of it.
2.Belief in the consent of the proprietor.
3.Belief that owner cannot be found(lost goods for example).

Originally Posted by Molineux

The two-part test has some similarities with Company Act 2006 (and Insolvency Act 1886 s 214 wrongful trading but not fraudulent trading) section 174 where the duty of a director to comply with common law duty of care codified as
a) The care displayed by a reasonable director doing the came task and
(but then the standard is raised to) b) the general knowledge, skill and experience THAT director has.

The problem with such an approach however is that it leads to inconsistency all of which makes:

a) Directing and advising juries extremely difficult - ie., the role of a judge.
b) formulating new laws extremely difficult
c) Advising clients difficult (the role of a Barrister)
d) Constructing lines and argument as well as reasoning difficult (a concern for both Judges and Barristers)

Originally Posted by Molineux

The two-part test has some similarities with Company Act 2006 (and Insolvency Act 1886 s 214 wrongful trading but not fraudulent trading) section 174 where the duty of a director to comply with common law duty of care codified as
a) The care displayed by a reasonable director doing the came task and
(but then the standard is raised to) b) the general knowledge, skill and experience THAT director has.

The problem with such an approach however is that it leads to inconsistency all of which makes:

a) Directing and advising juries extremely difficult - ie., the role of a judge.
b) formulating new laws extremely difficult
c) Advising clients difficult (the role of a Barrister)
d) Constructing lines and argument as well as reasoning difficult (a concern for both Judges and Barristers)

I would further add that they key reason that I dislike the Ghosh test IS because it seeks to conflate the the seemingly incompatible. In a matter of law such as this, it seems to me that either you do subject the question in mind to an objective test or you don't. You can't satisfactorily do both.

One is also compelled to ask, "if one first undertakes what is supposedly an objective test, why then must one also then undertake a subjective test? Surely the question one is seeking an answer to have been answered?" I realise that Ghosh is not intended to be a two stage operation - that is operate as two separate tests but rather as a one albeit with both a subjective and objective component - but reviewing the case law and having sat on a jury were we have been required to apply Ghosh, it would seem that in practice it is.

For those that are interested, Alex Steel reviewed the current position on Dishonest in the following paper:

Steel, Alex,The Appropriate Test for Dishonesty. Criminal Law Journal, Vol. 24, p. 46, 2000.

This he did following the decision by the Australian High Court in Peters v. The Queen in which the courst ressled with the issue.

In Peters v. The Queen, the majority (Toohey and Gaudron JJ, with whom Kirby J technically agreed) criticised the Ghosh test for dishonesty as artificial in its reference to the standards of ordinary, honest persons in that such persons when acting as jurors (presumably, unless otherwise instructed) judge another person’s dishonesty, not by any general standard, but by that person’s actual knowledge.

“That incongruity comes about because ordinary, honest persons determine
whether a person's act is dishonest by reference to that person's knowledge or
belief as to some fact relevant to the act in question or the intention with which
the act was done. They do not ask whether he or she must be taken to have
realised that the act was dishonest by the standards of ordinary, honest persons.
Thus, for example, the ordinary person considers it dishonest to assert as true
something that is known to be false. And the ordinary person does so simply
because the person making the statement knows it to be false, not because he or
she must be taken to have realised that it was dishonest by the current standards
of ordinary, honest persons.”

Justices Toohey and Gaudron also criticised Ghosh as having practical problems. Their first point was that:

“[I]n most cases where honesty is in issue, the real question is whether an act
was done with knowledge or belief of some specific thing or with some specific
intent, not whether it is properly characterised as dishonest. To take a simple
example: there is ordinarily no question whether the making of a false statement
with intent to deprive another of his property is dishonest. Rather, the question
is usually whether the statement was made with knowledge of its falsity and
with intent to deprive.”

It seems to me that in most criminal trials involving theft, there are two quite separate issues to determine. The first is the need to decide if the accused had the requisite state of mind alleged by the prosecution, and then secondly, if such a state of mind in fact falls within the concept of dishonesty required by the offence. Ghosh, conflates these two different issues

In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest.

The other problem I have with Ghosh is the the fact that in British Common and to a large extent that of other Common Law Jurisdictions, offences involving dishonesty are not all similar. Often offences have a specialised meaning of dishonesty.

If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if ‘dishonest’ is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest.

It is a fundamental axiom of law that words in statutes and in the common law should have consistent meaning, unless a mistake of drafting or a quirk of history results in a forced difference of meaning. This must be true for dishonesty, particularly in light of its increasingly significant role in the Theft Acts.

Indeed the over emphasis on different meanings of dishonesty in current judicial interpretation has created a situation where the word will need to be carefully defined in order for the law to regain certainty. While general prohibitions on conduct may be permissible in civil law contexts, the criminal law, which deals with people’s liberty and has historically required stringent safeguards in procedure to protect the accused, should not be countenancing the creation of wide ranging offences where the entire definition of criminality is left to some vague notion of community standards as defined by random citizens in a jury panel.

To consider the test of dishonesty, to me, has always been whether or not there was "intent" behind the action. The standard of any test of cause begins with that one word: intent.

The legal test of dishonesty can be complex depending upon the case and I am going to launch onto this survey next to be a part of the process. Hopefully, it's still active. I, too, can definitely see how intent plays into any legal definition of dishonesty. No matter the legal definition as to guilt or innocence, the soul always knows.

Originally Posted by Ms. LegalEye

No matter the legal definition as to guilt or innocence, the soul always knows.

True but that may not keep those guilty off the streets. I can see both sides to this, but each story and case are different just like the people involved in the case to begin with. I am not really 100% that this could be a full on good or bad thing, I could see it in some cases but not all.