Oh, my Ghosh! (Dishonesty)
To every law student and legal practitioner out there, the test for dishonesty has long been established following the case of Ghosh in 1982. The test has been used to help juries determine where and when dishonesty is an element of the offence.
It is a two-stage test, involving both an objective and subjective part. It is the latter subjective element, which has gained widespread criticism of creating a ‘Robin Hood defence’ in allowing juries to determine the issue of dishonesty on fact rather than law, namely ‘whether the defendant himself thought he was acting honestly?’.
- For example: ‘In the case of Robin Hood, who stole from the rich and gave to the poor, Mr Hood would never have thought of himself as acting dishonest in stealing from the rich. As such in believing his actions were honest, he would consequently escape liability of dishonesty’.
Despite the obvious problems and criticisms, as briefly summarised above, the test has stood the test of time until now! In the latest decision (Ivey v Genting Casinos (UK) Ltd ) by the Supreme Court on 25th October 2017, the test has been dramatically shaken up!
So, what was the original Ghosh test?
The judge in cases of dishonesty was required to direct the jury to answer the following:
- Whether in their judgement the conduct complained of was dishonest by the objective standard of ordinary reasonable and honest people?
If the answer was no, then the case against the Defendant would fail, however if the answer was yes, they had to answer the second stage…
- Whether the Defendant had realised that ordinarily honest people would have regarded his behaviour as dishonest?
If the answer was yes, to both parts, the defendant was convicted of dishonesty!
What did the Supreme Court’s Judgement Change?
The case of Ivey v Genting has removed this second stage of the test, citing the following serious problems with it:
- It has the unintended effect that the more warped the Defendants standard of honesty are, the less likely he/she will be convicted of dishonest behaviour;
- It sets a test which jurors and others often find puzzling and difficult to apply;
- The principle of dishonesty is dependent on the actual state of mind of the defendant.
- The meaning of dishonesty differs between civil and criminal proceedings;
The full reasons can be found here, but the Supreme Court has determined that the full Ghost test should no longer be applied.
The new test as stated by Lord Hughes has been summarised below:
- ‘When dishonesty is in question…. First it must be ascertained the actual state of the individual’s knowledge or belief as to the facts. Once established the question should be asked of whether the individuals conduct was honest or dishonest according to the objective standards of ordinary decent people’.
This has completely removed the second stage of asking the jury to determine whether the defendant believed or appreciated what he had done was dishonest.
The Court’s decision on Ghosh was only said in passing (obiter), but is likely to be widely followed as the new definitive guideline to dishonesty. The decision certainly seems logical and reflective of the issues that surrounded the original two-stage test.
The effect of the decision will see convictions of dishonesty rise, as the prosecution will have one less obstacle to pass to secure a conviction in these types of offences!