Discuss dishonesty.

Dishonesty

Dishonesty is an element of liability in theft obstructing electricity, deception, handling stolen goods and some related offences. To convict of such offences the magistrates or jury must be satisfied that what was done was dishonest by the standards of ordinary decent people and that the defendant had realised that at the time.

The 1968 Act only provides a partial definition of dishonesty, leaving some discretion to the courts. Unusually, the statutory definition, contained in section 2(1), makes use of examples, stating three situations in which a defendant should not be deemed dishonest:

If he appropriates property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
If he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and circumstances of it; or
(except where the property come to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

If the facts of a particular case do not fall within any of these examples, the courts have to look to the common law to decide whether the defendant has been dishonest. Following a period of uncertainty, the court of Appeal laid down a test for dishonesty in R v Ghosh (1983). Lord Lane had stated in this case that;

“In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.

The court should first ask whether the defendant had been dishonest by the ordinary standards ...

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The court should first ask whether the defendant had been dishonest by the ordinary standards of reasonable and honest people. If the answer is yes the court should then ask whether the defendant realised that he or she had been dishonest by those standards. If the answer to the answer to the second question was also yes there was dishonesty. Where a court feels it necessary to give a Ghosh direction it was stated in R v Hyam (1997) that it was preferable, though not compulsory, for that court to use Lord Lane’s words.

Deception

Property; obtaining property belonging to another

Section 34 (1) provides that section 4 (1) applies to other offences in the Theft Act 1968 (including, therefore section 15) as it applies to theft. Thus, property includes, for example, intangible property, (including for problems over whether the property obtained is the same as the property which belonged to the victim.

However, the remaining sub-section of section 4 apply only to the offences of theft. Thus, land (wild animals and mushrooms, etc, which belong to someone else, are capable of being obtained by deception.

Deception

Within in the Theft Act 1968, a person who uses deception in order to obtain property to which he believes himself entitled will not be guilty.

As one may be aware deception may be dishonest within the above statement. Examples include a false representation by words or conduct of a matter of fact, including the existence of an intention or law that is made deliberately or recklessly to another person.

Deception itself is not known to be a crime, but there are six impressionable crimes in which deception is involved, including;

Obtaining property
Obtaining an overdraft, an insurance policy, an annunity contract, or the opportunity to earn money in a job or to win money by betting. These two offences are punishable by up to ten years imprisonment.
Obtaining any service(e.g. of a driver or a typist or the hiring of a car
Securing the remission of all or part of an existing liability to make payment (whether one’s own or another’s) with intent to make permanent default in whole or in part
Casing someone to wait for or forego a debt owing to him
Obtaining free or cheap travel by falsely pretending to be a senior citizen. It is not an offence, however to deceive someone in any other circumstances, provided there is no element of forgery or false accounting.

There is the same overlap of theft and obtaining property by deception in the sense that a person may commit both offences in relation to the same property, of course a very large number of cases of theft cannot have anything to do with obtaining property by deception for the simple reason that no deception was practised by the accused, within this category come all cases of theft by direct taking and all cases of theft of property the original receipt of which was entirely innocent, for example by a bailee or trustee. In addition, it is clear from the wording of the 1968 Act that there are a very few cases where a person who can be convicted at obtaining property by deception cannot be convicted of theft in relation to it because the property cannot be stolen; land and things forming part of it may be obtained by deception but they cannot generally be stolen. Apart from this exceptional type of case a person who dishonestly obtains by deception property belonging to another with intent permanently to deprive the other of it commits theft and obtaining property by deception. This is the effect of the decision of the majority of the House of Lords in Gamez. This is a result which was not intended in the Criminal Law Revision Committees in its Eighth Report.

It is submitted that, where the government of a case is that the accused has dishonestly obtained property be deception, the offences under Section 15 of the 1968 Act is generally more appropriate ( and certainly easier for a jury to understand if the case is tried in the Crown Court); the greater maximum punishments under Section 15 (ten years imprisonment, as opposed to seven for theft) should not be forgotten.