Making Dishonesty Fit the Crime

Abstract

Statutory offences that require proof of dishonesty have been enacted in England and Wales since 1968, and similarly, in other jurisdictions (notably, Australia, New Zealand, and Canada). Although dishonesty has been described as an “ordinary concept”, “characterised by recognition rather than by definition”, the concept has proved to be problematic - conceptually and in practice – not least as to whether or not dishonesty is to be judged objectively or subjectively, or involves a hybrid approach (in part objective and in part subjective). For thirty-five years, the approach in England and Wales appeared to be settled following the decision of the Court of Appeal (Criminal Division) in R v Ghosh. However, the UK Supreme Court held in Ivey v Genting Casinos (UK) Ltd - albeit obiter - that when dishonesty is in question the fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts, and thereafter, determine whether his conduct was honest or dishonest by applying (objectively) the standards of “ordinary decent people”. There is no requirement (as stated in Ghosh) that the defendant must appreciate that what he has done is, by those standards, dishonest. This paper considers the history and issues relating to the concept of dishonesty, and it examines the six reasons given by the Supreme Court in Ivey for departing from the decision in Ghosh.