Dishonesty Outside of England and Wales: Ivey in International Comparison
The UK Supreme Court Yearbook, Volume 9, Legal Year 2017-2018
32 Pages Posted: 9 Apr 2020
Date Written: January 1, 2019
The enactment of the Theft Act 1968 and its adoption of the adverb ‘dishonestly’ have had ongoing repercussions throughout the common law world. Variants of the English concept of theft have now been adopted in most of these jurisdictions. Even in those jurisdictions where there has not been a reform of theft laws that led to the introduction of dishonesty as a statutory concept, Parliaments have adopted the term as a convenient way of expressing fault in an increasing array of acquisitive and relational crimes. The one significant exception is Canada, but even there the approach taken to fraudulence, dishonesty’s predecessor, is an instructive contrast.
This chapter analyses the range of judicial and legislative approaches to dishonesty outside England and Wales since 1968. Often Parliamentary intervention has been in reaction to the judicial approaches. Across the jurisdictions the judicial and statutory interpretations overlap and at times are ignorant of each other.
Thus, rather than adopt a chronological approach this chapter places them in a rough taxonomy for analytical purposes. That taxonomy is:
(a) mens rea approaches to dishonesty –
(i) minimalist approaches that define dishonesty down to a synonym of pre-existing mens rea concepts, namely synonyms for intent, claim of right or consent; and
(ii) definitions that are comprised exclusively of elements which conform to ideas of ‘subjective’ or ‘mens rea’ elements, that is based on awareness of moral wrongdoing, with or without limitations;
(b) actus reus approaches to dishonesty – definitions that are comprised exclusively of elements which conform to ideas of ‘objective’ or ‘actus reus’ elements, that is characterization of actions irrespective of the defendant’s intention or knowledge; and
(c) hybrid approaches to dishonesty – definitions that combine subjective and objective elements or or actus reus and mens rea elements.
This taxonomy highlights similarities and differences in doctrinal and philosophical perspectives, but at the cost of a coherent discussion of developments within each jurisdiction. Necessarily then the chapter moves forward and backward in time, and at times separates discussion of judgments in a single case into different sections.
The chapter also considers how the jurisdictions have approached a fundamental preliminary issue, that of the proper role of dishonesty in criminal law. Again, this involves a comparison of approaches agnostic as to their historical moment.
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