R v Ghosh [1982] EWCA Crim 2

A locum surgeon was convicted of deception offences under the Theft Act 1968 for falsely claiming fees. The Court of Appeal dismissed his appeal and established the two-stage test for dishonesty combining objective and subjective elements, later known as the Ghosh test.

Facts

The appellant, Deb Baran Ghosh, was a surgeon acting as a locum tenens consultant at a hospital. On 29 April 1981 at St Albans Crown Court he was convicted on four counts under the Theft Act 1968: one count of attempting to procure the execution of a cheque by deception (s.20(2)), one count of attempting to obtain money by deception, and two counts of obtaining money by deception (s.15(1)). The charges alleged that he had falsely represented that he had personally carried out surgical operations to terminate pregnancy, or that money was due to him or an anaesthetist, when the operations had been performed by others and/or under the NHS. His defence was that the sums were legitimately payable consultation fees and that his conduct was not dishonest. He was fined £250 on each count.

Issues

The sole ground of appeal was that the trial judge misdirected the jury on the meaning of dishonesty. The Court of Appeal had to resolve conflicting lines of authority as to whether the test of dishonesty under the Theft Act 1968 was subjective (concerned with the defendant’s own state of mind) or objective (concerned with the standards of ordinary people), and whether the distinction drawn in R v McIvor between conspiracy to defraud (subjective) and theft (objective) was theoretically justifiable and practically workable.

Arguments

Appellant

Counsel for the appellant argued that the trial judge’s direction on dishonesty was inadequate. The judge had told the jury that there were “infinite categories of dishonesty” and left them to apply “contemporary standards of honesty and dishonesty”, suggesting dishonesty involved matters such as “getting something for nothing, sharp practice, manipulating systems”. The appellant contended that dishonesty required consideration of the defendant’s own state of mind.

Crown

The Crown supported the conviction on the basis that, on the facts, the jury’s rejection of the appellant’s account made the finding of dishonesty inevitable regardless of which test was applied.

Judgment

The Court of Appeal, Lord Lane CJ giving the judgment of the court, reviewed the conflicting authorities. It examined R v Landy (subjective approach), R v Green and Greenstein (objective approach), R v McIvor (which attempted to reconcile them by distinguishing conspiracy to defraud from theft), Scott v Metropolitan Police Commissioner, R v Waterfall, R v Royle, R v Gilks and R v Feely.

The court rejected the distinction drawn in McIvor, holding that the Court of Appeal there was “seeking to reconcile the irreconcilable”. It reasoned that there was nothing in Scott to support placing theft and conspiracy to defraud in different categories, and that both offences should attract the same test for dishonesty.

The court identified the central question: whether “dishonestly” in the Theft Act was intended to characterise a course of conduct (permitting an objective test) or a state of mind (requiring a subjective element). It concluded that dishonesty was “something in the mind of the accused”, supported by the fact that s.2 of the Theft Act itself defines matters relating to belief, which can only be established subjectively.

However, the court rejected a purely subjective test, which would allow “Robin Hood” to escape liability. Instead, it formulated a combined test. In determining whether the prosecution has proved dishonesty, a jury must:

1. First decide whether, according to the ordinary standards of reasonable and honest people, what was done was dishonest. If not, the prosecution fails.
2. If it was dishonest by those standards, the jury must then consider whether the defendant himself must have realised that what he was doing was, by those standards, dishonest.

The court explained that a defendant cannot escape liability by claiming his own idiosyncratic view of honesty, but is entitled to be acquitted if he did not know that ordinary people would regard his conduct as dishonest. Persons such as Robin Hood or anti-vivisectionists who remove laboratory animals act dishonestly because they know ordinary people would view their conduct as such, even if they consider themselves morally justified.

Applying this test to the appellant, the court held that once the jury had rejected his account on each count, a finding of dishonesty was inevitable under either test. Any misdirection was therefore a case for the application of the proviso to s.2(1) of the Criminal Appeal Act. The appeal was dismissed.

Implications

The judgment established what became known as the “Ghosh test” for dishonesty in offences under the Theft Act 1968, applicable also to conspiracy to defraud. The test unified the approach to dishonesty across theft, deception and conspiracy to defraud offences, resolving the previous conflict in authorities.

The decision was significant for practitioners because it provided a workable direction for juries in dishonesty cases, combining an objective assessment of conduct by community standards with a subjective element requiring the defendant to have appreciated that his conduct fell below those standards. It ensured that defendants with genuinely different cultural or personal understandings of what is dishonest (such as the court’s example of a traveller from a country with free public transport) would not be convicted where they did not appreciate that ordinary people would regard their conduct as dishonest.

The court was careful to tie its reasoning to the statutory language of the Theft Act 1968 and to the partial definition of dishonesty in s.2 of that Act. The decision left borderline cases such as Boggeln v Williams to be resolved by the jury applying the two-stage test. The judgment did not purport to define dishonesty exhaustively, and expressly confirmed that judges should not do so beyond giving the direction formulated.

Verdict: Appeal dismissed. Although the trial judge’s direction on dishonesty was inadequate, the misdirection made no difference to the outcome and the proviso was applied. The court formulated a new two-stage test for dishonesty (objective then subjective) to be used in future cases.

Source: R v Ghosh [1982] EWCA Crim 2