Dishonest - English Law

English Law

Dishonesty has had a number of definitions. For many years, there were two views in English law. The first contention was that the definitions of dishonesty (such as those within the Theft Act 1968) described a course of action, whereas the second contention was that the definition described a state of mind. A clear test within the criminal law emerged from R v Ghosh (1982) 75 CR App. R. 154. The Court of Appeal held that dishonesty is an element of mens rea, clearly referring to a state of mind, and that overall, the test that must be applied is hybrid, but with a subjective bias which "looks into the mind" of the person concerned and establishes what he was thinking. The test is two-stage:

• "Were the person's actions honest according to the standards of reasonable and honest people?" If a jury decides that they were, then the defendant's claim to be honest will be credible. But, if the court decides that the actions were dishonest, the further question is:
• "Did the person concerned believe that what he did was dishonest at the time?"

The decision of whether a particular action or set of actions is dishonest remains separate from the issue of moral justification. For example, when Robin Hood robbed the Sheriff of Nottingham he knew that he was, in effect, stealing from the Crown, was acting dishonestly and would have been properly convicted of robbery. His argument would have been that he was morally justified in acting in this way but in modern legal terms this could only have been brought to the court by way of mitigation of sentencing and would not have affected the inference of dishonesty.

Where dishonesty is an issue in civil cases, the trend in English Law is for only the actions to be tested objectively and not to apply any test as to the subjective state of mind of the actor.