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Criminal Law

Court of Appeal

1982

R v Ghosh

[1982] QB 1053

Ratio Decidendi

Under the Theft Act 1968, dishonesty is a component of the offence of theft and related offences. The Ghosh test for dishonesty was: (1) was what the defendant did dishonest according to the ordinary standards of reasonable and honest people? (2) if yes, did the defendant himself realise that what he was doing was by those standards dishonest? Both limbs had to be satisfied for a finding of dishonesty. However, the second (subjective) limb of the Ghosh test was subsequently held to be wrong by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, which held that dishonesty in both civil and criminal law is assessed by a single objective test: what the defendant knew about the circumstances, judged by the standards of ordinary decent people. The Ghosh test therefore no longer represents the law, though it was applied for 35 years.

তথ্য

Dr Roylance Ghosh was a locum consultant surgeon at a hospital. He falsely claimed fees for operations that had either been performed by others or had been carried out under the National Health Service (so that no fee was payable). He was charged with obtaining property and pecuniary advantage by deception, contrary to the Theft Act 1968. The trial judge directed the jury on dishonesty. Ghosh appealed, arguing that the direction on dishonesty was wrong. The Court of Appeal used the appeal as an opportunity to clarify the correct direction on dishonesty in Theft Act offences.

রায়ের সারসংক্ষেপ

The Court of Appeal (Lord Lane CJ, with Comyn and Lloyd JJ) dismissed the appeal but gave detailed guidance on the correct direction on dishonesty. Lord Lane held that Parliament had not defined 'dishonestly' in the Theft Act 1968, and that the question of dishonesty involved both an objective and a subjective element. The objective element was whether ordinary reasonable people would regard the conduct as dishonest. But Lord Lane rejected a purely objective test on the ground that it would convict Robin Hood figures who are genuinely unaware that their conduct is regarded as dishonest by ordinary people. He therefore added the subjective limb: did the defendant realise that their conduct would be regarded as dishonest? Both limbs had to be satisfied. Lord Lane expressly stated that a defendant who knows that what he is doing would be considered dishonest by ordinary people, but believes it is morally justified, cannot escape on the ground of his moral justification. Ghosh's conviction was upheld on the facts.

মূল উদ্ধৃতি

"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."
— Lord Lane CJ at 1064

"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."
— Lord Lane CJ at 1064

"A man who comes to England from a country where public transport is free may not know that it is dishonest to travel without paying. Those are areas where either the first or the second leg of the test will not be satisfied."
— Lord Lane CJ at 1064

পরবর্তী ব্যবহার

Overruled

The second, subjective limb of the Ghosh test was held to be wrong by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 (per Lord Hughes), which held that the correct test for dishonesty in criminal cases is purely objective: taking the facts as the defendant believed them to be, would ordinary decent people consider the conduct dishonest?

Applied

Applied for 35 years between 1982 and 2017 in all Theft Act offences. Consistently followed in R v Small [1987] and numerous other cases in the period before Ivey.

Considered

In R v Barton and Booth [2020] EWCA Crim 575 the Court of Appeal confirmed that the Ivey test now applies in all criminal cases including Theft Act offences and that Ghosh directions are no longer to be given.