Section 2 of the Act states that a person’s appropriation of property belonging to another may be dishonest even though he was willing to pay for the property. In Feely (1973)
D was a manager of a betting shop and he took £30 from the till for his own purposes, which was contrary to management instructions. He was owed money by his employers but also intended to pay the money back (left an IOU). The trial judge directed the jury that if D took the money, he is guilty and if he did not take it, he is not guilty. It was irrelevant that D intended to pay it back, even if he had been a millionaire, it would be no defence.
The Court of Appeal held that this should not have been withdrawn from the jury in this fashion as dishonesty is a common English word and was thus a factual issue for the jury, not requiring definition by the judge. It was implied that the jury should decide on what is honest and what is not.
The main case giving the partial meaning of dishonesty is Ghosh (1982). This gave a two-stage test to be applied. Was what was done dishonest according to the standards of honest and reasonable people? If so, did the defendant (D) realise that what he was doing was dishonest by those standards? This is left to the jury in each case to decide.
For the actus reus of theft, it has to be proved that there was an appropriation of property, which belonged to another, in order to establish liability. The mens rea of theft are dishonesty and intention to permanently deprive another. In McIvor (1982) the Court of Appeal (CoA) sought to reconcile the differences between the subjective and objective tests for dishonesty. It decided that a subjective approach should be taken where the charge was conspiracy to defraud, but that the question of dishonesty in theft should be decided objectively.
As this was later rejected by the CoA itself in Ghosh (1982), it shows that the courts themselves are not clear as to what the tests for dishonesty should be. In fact in all cases, dishonesty is a mixed question of law and morality for the magistrates or jury. Because of this uncertainty in the law, there is a potential for magistrates and juries in particular to apply differing stands of dishonesty to the same set of facts.
For example, the two-tier Ghosh test would be applicable where the defendant (D) was accused of stealing from the rich to give to the poor and argued that he honestly believed that ordinary reasonable people would not think he was doing wrong. In such a case, he could not be said to be acting dishonestly, using the Ghosh test. However, if D knew that others would think he was acting wrongly, he would be considered dishonest. In Holden (1991) it was held that it is not necessary for the accused to prove that his belief is a reasonable one, providing that it is genuinely held. The defendant must believe that he has a legal and not moral right to the property. Is it the business of the criminal law to punish those whom ordinary people would regard as morally justified in their actions? Or even those who believe that ordinary people would regard them as morally justified in their actions?
In Small (1988) the defendant claimed that a car he had appropriated had been abandoned by its owner. It had been left in one place for over a week with the keys in the ignition. The jury did not believe his story but his conviction was quashed by the CoA because he had honestly believed that this was the case. It is theft if property is merely removed for spite and is destroyed or thrown away.
The uncertainties and loopholes in this area of law could be resolved if a statutory definition of dishonesty is given. In the case of Salvo (1980), the judge felt that it was not always the case that a citizen ‘knows dishonesty if he sees it’, and that further help was needed in some cases. At present, however, Ghosh does not represent the law on the subject until there is an intervention by either the House of Lords (HoL) or Parliament.
