1. With reference to case law and academic commentary, critically evaluate the current law on dishonesty, as regards the law relating to theft.
2. With reference to case law and legal commentary, critically analyse the current requirement of reasonableness within S76 Criminal Justice & Immigration Act 2008.
Introduction to English Criminal Law
The word English criminal law denotes the jurisdiction of England and Wales. This body deals with the criminal system and implemented policies to curb crime within the society. According to the common law, crime is an act that opposes the social policy and law. There are various examples of crime. Dishonesty is an example of crime. Dishonesty is an act that commences without honesty. However, under the English law, two different notions are there to display the reason of dishonesty. According to certain researchers, dishonesty is a course of action; whereas, some state dishonesty as a state of mind. In UK, the Theft Act 1968 has governed dishonesty. However, certain changes have been made in this case recently and it has been evaluated critically in this essay.
The principle of mental state has been followed in the case of R v Ghosh where the Court of Appeal was of the view that dishonesty comes into the mind of the perpetrator and he commences the act what he thinks. According to this case, it is to be adjudged whether the person who has done a dishonest work maintain the reasonableness or not. Further, it is to be decided whether the person who has committed dishonest work knows about the crime he is committing or not. The “Ghosh test” was criticized for certain reasons. According to certain jurists, when a dishonest act has been done, it is meaningless to consider what the perpetrator thinks at the time of commencement of the offence. However, this principle has been overruled in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords. In this case, the dishonest action of the perpetrator has been highlighted. In this case, it has been observed that one of the card player has done cheating and court has decided that the club is not required to pay him after his win over the game. In this case, the action of the perpetrator has been highlighted.
However, the criminal courts of United Kingdom are adopting two-stage test for determining an act as dishonest. According to the first test, after the commission of a dishonest act, it is to be determined whether the objective standard of reasonableness has been observed in this case or not. The second test regarding the same is to decide whether the perpetrator has realized the offence, he has been committed or not. However, certain problems have been cropped up in this case. According to the first case, the jurists have to think about the reasonableness of the offender after finding out the proper standard of honesty. Further, it has been observed that dishonesty does not depend on the mind of the perpetrator and sometimes, the jurists have to face great dilemma to decide whether to take the state of mind or the state of action of the perpetrator. Therefore, application of those tests is quite difficult. Further, the application is not compelling in nature. Further the Supreme Court in Ivey v Genting Casinos’s case has made certain critical comments regarding dishonesty and theft. According to the subjective test made in Ghosh test, if the defendant plead that he has no knowledge that the act done by him could amount to dishonesty, he could be acquitted from the charge. However, the court has now decided that the state of knowledge of the defendant is not an issue anymore. If his act attracts the elements of the dishonest act, he will be punished for that. In addition, it is important to analyze the actual state of mind of the defendant. According to section 3 of the Theft Act, if a person has done something and without making the payment go off, two issues will be arisen:
- Whether the person has the knowledge that payment for the goods is necessary; or
- Whether the person has the knowledge that payment for the goods is not necessary
Legal interpretations of dishonesty
In case of the first issue, the person will be held liable for dishonest act. However, in case of the second issue, the person is not at all guilty for the act, as he has done what reflects in his actual state of mind.
According to section 1 of the Theft Act 1968, where a person has misappropriated a property dishonestly and misplaced the thing without the consent of the original owner, such act will be regarded as theft. In this Act, the commencement of theft can be divided into two parts such as mens rea that is the mind of the perpetrator and actus reus that is the action of the perpetrator. According to the current law, the mind of the perpetrator becomes meaningless and the action of the perpetrators becomes the only essential. The jurists have to face serious dilemma while assessing the mind of the defendant, as after the commission of the act, thinking capacity of the defendant is worthless. In R v Morris, it has been observed that when a person has dishonestly misappropriate the property of others without his consent, he violates the rights of the original owner an commits theft. In this case, court has highlighted the elements of appropriation. However, in DPP v Gomez, it has been proved that appropriation can be formed even with the consent of the owner. Further, according to section 4 of the Theft Act 1968, property could lead to both tangible and intangible property. It has been observed in R v Smith & Ors that if the subject of theft is illegal, the allegation of dishonesty will not stand.
Certain changes have been observed by the court in current condition regarding the commencement of dishonest action. After a dishonest action, the court should have to point out the subjective and actual facts of the case. Further, the question of reasonableness of the act is a matter of evidential facts and in this case, the practice should be determinative. After establishing the state of mind of the defendant in this case, the dishonest conduct of the defendant is required to be assessed and the objective standard will be applied in that case. it is not required that the defendant has to confess their guilty regarding dishonesty.
From the above discussions, it is clear to understand that the law is changing every day and there are new methods and techniques to understand the intention of the party committing theft. The intention of the legislation is to punish the wrongdoer and also restore the faith of the people in the legislation and the judiciary. Initially, the content of theft and the law related to theft was governed by the Theft Act which was given assent in the year 1968. Prior to that, there were no significant development in that area and the law did not give much emphasis on punishing any wrongdoing regarded specifically to theft. The reason behind the inception of the law was to ensure that theft was nipped in the bud and that the ambiguity regarding the implementation of law could be dealt with. Though the Theft Act was considered to be a big milestone in the arena of theft laws, the legislation also came under strict scrutiny where the loopholes were strictly checked. Though the law stood very clear on what constituted theft and what were the repercussions, the term ‘dishonesty’ still need wider interpretation. The Commission looked into the laws to question the validity of the law in the present time and is it required to be overhauling or not. The reason behind the implementation of the Gish Test was to decide on the extent and the implementation of the law in cases the defendant was dishonest. The test came a result of appeal and the Ghosh Test became an important test to understand both the subjective and the objective element to any dishonest act. Therefore, by implementing the Ghosh Test, it was imperative on the legislation to check both the objective as well as the subjective that resides in case of a dishonest act. Since 1982, the Gosh Test was considered the authority to check the mindset of a criminal and it was the authority in dealing with the matters that involved dishonesty. However, later on Ghosh test was subject to harsh criticism for want of clarity. Cases related to theft and dishonesty were few, namely R v Lawrence (1971) 57 Cr App R 64, DPP v Gomez  AC 442 or the case of R v Hinks  2 AC 241. These cases relied on the Ghosh test, where a situation was so created where emphasis was laid more on proving dishonesty, than proving the offence.
R v Lawrence (1971) 57 Cr App R 64
DPP v Gomez  AC 442
R v Hinks  2 AC 241
R v Ghosh (1982) 75 CR App. R. 154
Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67
R v Morris  3 WLR 697
R v Smith & Ors  1 Cr App R 30
Okeke, Romanus, and Mahmood Shah. Information Theft Prevention: Theory and Practice. Routledge, 2016.
Okeke, Romanus Izuchukwu. The prevention of internal identity theft-related crimes: a case study research of the UK online retail companies. Diss. University of Central Lancashire, 2015.
Hall, Matthew, and Thomas Smith. "The disappearing Ghosh test." Criminal Law and Justice Weekly 181 (2017): 752-754.
Siebenaler, Susan. Dishonesty and social presence in retail. Diss. Abertay University, 2017.
Virgo, Graham. "CHEATING AND DISHONESTY." The Cambridge Law Journal 77.1 (2018): 18-22.