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What is The Theft Act 1968?

The Theft Act 1968 was introduced to make it an offence to obtain property by deception. Under Section 1 (1) of the Theft Act 1968 “a person is guilty of theft if they dishonestly appropriate property belonging to another, with the intention of permanently depriving the other of it.”

Defining dishonesty

To be found guilty of committing theft, it must be proved that a person has acted dishonestly. While there is no statutory definition of dishonesty, the Theft Act does detail three instances when a person is not regarded as dishonest:

  • An individual takes possession of property believing they have a legal right to deprive others of it.
  • The property was appropriated in the belief that the person in question would have the other’s consent if the other knew of the appropriation and the circumstances.
  • A person appropriates the property in the belief that the owner, of which the property belongs, cannot be discovered by taking reasonable steps.

How do courts determine defendants dishonest?

The “Ghosh test” was used in UK courts to deem whether a defendant was dishonest. It derived from the famous case of R v Ghosh (1982). The defendant, Deb Baran Ghosh, was a surgeon convicted of obtaining property by deception –specifically fees that he was not entitled to. While he lost his appeal, the test used by courts in the case dramatically changed the legal landscape for over three decades. As a two-part test, it required juries to consider:

  1. Objective test - Whether the conduct complained of was dishonest by the standards of ordinary reasonable and honest people. If yes;
  2. Subjective test - Whether the defendant must have realised that ordinary honest people would so regard their actions as dishonest.

Redefining criminal dishonesty

In 2017 the UK Supreme Court unanimously ruled that the Ghosh test was inadequate and should no longer be followed by courts. The decision in Ivey v Genting Casinos (2017) clarified matters, stating dishonesty is objective in all proceedings (including criminal and civil cases).

Lord Hughes highlighted the inadequacies of the Ghosh test, stating it:

  • Has unintended effect that the more warped the defendant’s standards of honesty, the less likely it is that he or she will be convicted.
  • Makes it puzzling and difficult to apply, particularly for jurors.
  • Holds no logical or principled basis for the meaning of dishonesty to differ, whether it arises in a civil action or a criminal prosecution.

Due to the decision in 2017, courts now decide what it is the defendant believed, and they then determine whether the defendant’s actions are dishonest (by the standards of ordinary, reasonable and honest members of society). The second part of the Ghosh test has been completely removed, meaning the defendant must no longer realise that ordinary reasonable and honest people would see his behaviour as dishonest.

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