''R v Ghosh''
EWCA Crim 2is an
982
EWCA Crim 2is an English criminal law case setting out a test for
dishonest conduct which was relevant as to many offences worded as doing an act dishonestly, such as
dishonesty">dishonest conduct which was relevant as to many offences worded as doing an act dishonestly, such as deception, as Theft Act 1968">theft
Theft (, cognate to ) is the act of taking another person's property or services without that person's permission or consent with the intent to deprive the rightful owner of it. The word ''theft'' is also used as a synonym or informal shor ...
,
[Theft Act 1968] as mainstream types of Fraud Act 2006, fraud,
[Fraud Act 2006] and as Social Security Administration Act 1992, benefits fraud. The test has been revised to an objective test, with rare exceptions, by the
Supreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
in ''
Ivey v Genting Casinos'' [2017
UKSC 67
Facts
Dr Ghosh was a surgeon. He was convicted of four offences under the Theft Act 1968 sections 20(2) and 15(1). During his work as a locum surgeon he was paid one set of extra wages and attempted three times to obtain such wages by claiming variously: for work that others had carried out and for work reimburseable to him via the
National Health Service
The National Health Service (NHS) is the term for the publicly funded health care, publicly funded healthcare systems of the United Kingdom: the National Health Service (England), NHS Scotland, NHS Wales, and Health and Social Care (Northern ...
. The jury found him guilty. He appealed on the basis that the trial judge had told the jury to use their common sense to determine whether the accused's conduct had been dishonest or not. His defence team argued that the judge should have instructed the jury that dishonesty was about the accused's state of mind (a subjective test) rather than the jury's point of view (an objective test).
Judgment
The Court of Appeal found that the conviction was proper, so dismissed the doctor's appeal as the original direction did not lead to an unsafe or unsound conviction.
The Court (its most senior member, the Chief Justice) began by stating "The law, on this branch of the Theft Act 1968 is in a complicated state and we embark upon an examination of the authorities with great diffidence." This court reformulated the test for dishonesty. It held that
Hence the test for dishonesty was
subjective and
objective. As a result, the Ghosh'' test', which the jury was required to consider before reaching a verdict on dishonesty:
#Was the act one that an ordinary decent person (normally considered to be the ubiquitous '
man on the Clapham omnibus
The man on the Clapham omnibus is a hypothetical ordinary and reasonable person, used by the courts in English law where it is necessary to decide whether a party has acted as a reasonable person would – for example, in a tort, civil action fo ...
') would consider to be dishonest (the objective test)? If so:
#Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?
The latter part of the test was overruled by the
Supreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
in 2017 in the case of ''
Ivey v Genting Casinos.
Note that it was not essential for a person to admit that they acted in a way that they knew to be dishonest; it was probably enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was wrong.
''Ivey v Genting Casinos''
''
Ivey v Genting Casinos (UK) Ltd t/a Crockfords'' was a Supreme Court case decided in late 2017 which expressed the view in ''obiter dictum'' that ''Ghosh'' did not correctly represent the law, that the objective test was preferred and that the test of dishonesty is as set out by Lord Nicholls in ''
Royal Brunei Airlines Sdn Bhd v Tan''
995UKPC 4 and by Lord Hoffmann in ''
Barlow Clowes International Ltd v Eurotrust International Ltd''
005UKPC 37. When dishonesty was in question, the fact-finding tribunal must first ascertain the actual state of the individual's knowledge or belief as to the facts. The question whether the conduct was honest or dishonest was then to be determined by applying the objective standards of ordinary decent people.
The Supreme Court noted particularly that though their case concerned a cheating gambler (as they found Ivey to be) suing the casino in a civil case, there was no good reason for distinguishing civil from criminal dishonesty, and that accordingly the criminal law was incorrectly understood as set out in ''Ghosh''. The Court of Appeal has confirmed the applicability of ''Ivey'' (and the overruling of ''Ghosh'') in ''
R v Barton and Booth''.
See also
*
Social Security Administration Act 1992
Notes and references
;Notes
;References
External links
Full text of Ghosh judgment from Bailii
The Ghosh'' test' of dishonesty
{{DEFAULTSORT:Ghosh
English criminal case law
1982 in England
1982 in United Kingdom case law
Indian diaspora in the United Kingdom