Discuss and illustrate how the courts approach the meaning of 'dishonesty' as defined in section 2 of the theft act 1968.

Section 2 of the Act deals with dishonesty which is required in terms of the mens rea of the offence of theft. The Act does not define dishonesty as such but it does set out what does not amount to dishonesty or what, in effect, may amount to a defence.

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The offence of theft is defined in Section 1 of the Theft Act 1968. It is extremely useful to examine the definition as it is possible to identify from it the various elements of the offence that need to be proved in order to secure a conviction. It is feasible to look at both the actus reus and mens rea of theft in turn – they are defined in Sections 2-6 of the 1968 Act.


Before we do so, let's remind ourselves about what Section 1 says about theft. Theft is stated as follows 'A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it …....'


We should also remember that theft is not a new offence that came into being for the first time under the Theft Act 1968. The Act was passed as a result of the work of the Criminal Law Revision Committee on this area of the law. Amongst other things the old law was based on the concept of larceny and needed to be brought up to date. The 1968 Act was an attempt to bring together the law of theft in one modern statute. It could be argued that it has been a success, making the law more accessible both to criminal practitioners and the judiciary as well as the public and jurors.


The new law was deliberately drafted in such a way as to be much wider and broader in its application than just dealing with situations covering stealing by taking. We shall see how this may have influenced the court's approach to the issue of dishonesty.

The Theft Act 1968 Section 2 deals with dishonesty which is required in terms of the mens rea of the offence of theft. The Act does not define dishonesty as such but it does set out what does not amount to dishonesty or what, in effect, may amount to a defence.


Section 2 (1) (a) provides that a person is not dishonest if they honestly believe they have a legal right to the property. This point was tested in the case of R v Holden (1991) which concerned a charge of theft arising out of the defendant taking old tyres from Kwik-Fit. The defendant's defence was that he believed others had taken tyres with the consent of the supervisor but this was contradicted by the evidence of the manager to the effect that it was a disciplinary offence. On appeal the court ruled that is was not necessary for the defendant to show that the belief was reasonable only that he had an honest belief.


Section 2 (1) (b) provides that a person will not be dishonest if they honestly believe the owner would consent if they knew about it. In this regard many will recall class discussions where it is suggested that an example of this situation would be that one student used a fellow student student's law books for revision while the owner was away, in the belief that the other person would consent if they knew of their fellow student's predicament.


Section 2 (1) (c) provides that a person will not be dishonest if they honestly believe the owner cannot be found, having taken reasonable steps to do so – if an honest belief is not held then this is theft and often referred to as stealing by finding. The well known case of R v Small (1988) is a good example. In this case the defendant claimed that he found a car that had been abandoned by its owner with the keys in the ignition. The jury did not accept this account and he was convicted.



An example of common situations in which a Section 2 (1) (c) defence arising, is in the case of lost property including money. The matter is not always clear one way or the other. For example in the case of something relatively low in value in monetary terms and especially if the property lacks any distinguishing features or is fairly common, the finder may reasonably argue that it would not be reasonable to expect the finder to take steps to locate the owner, other than to ask persons in the immediate vicinity at the time. Such a situation may be the type of situation intended to be covered by Section 2 (1) (c).


The position may be different in the case of cash found outside a shop. The higher the value the more reasonable it is to suppose that the owner would report their loss when they discovered that their money was missing. This may include retracing their steps or reporting the matter to the police. So, for arguments sake, say the missing sum was £100 and the accused found it and kept the money without taking any other action, this may be dishonest as it seems to fall outside of Section 2 (1) (c).


A smaller sum of money, such as £5 found in a public place, may not give rise to the same outcome. First of all, such a small sum may well give rise to the thought on the part of the owner that it is unlikely to be handed in or reported if found. Secondly it could be thought that any finder may believe that such small loss is unlikely to be reported making it difficult, if not impossible to find the owner. In some situations a clear defence seems to be available depending upon the property lost and its value. In other cases it is arguable that it is not reasonable to expect small amounts of money to be handed in or reported.


In most cases, as is consistent with the modern approach to the need for assistance for the jury, the aim is to avoid unnecessary technical guidance. The overall object of the Theft Act was, after all, to make the law easier to understand and accessible. In many cases guidance will not be required and juries will be able to apply their own common sense.


In the event of guidance being required, the jury will be told that they must decide if the defendant was dishonest by the standards of the reasonable man and additionally that if the answer to that question is yes, that the defendant also knew that what they were doing was dishonest by that standard. The two-fold test is therefore partly objective ( the standard of the reasonable man) and partly subjective (their knowledge). Invariably the jury will fall back on what they consider to be reasonable when considering the first part of the test.


The above test was set out in R v Ghosh (1982) which concerned a hospital consultant who claimed money in respect of operations which he had not carried out. He argued his actions were not dishonest as he was legitimately owed the same monies in consultancy fees. The trial judge directed the jury:


"Now, finally dishonesty. There are, sad to say, infinite categories of dishonesty. It is for you. Jurors in the past and, whilst we have criminal law in the future, jurors in the future have to set the standards of honesty. Now it is your turn today, having heard what you have, to consider contemporary standards of honesty and dishonesty in the context of all that you have heard. I cannot really expand on this too much, but probably it is something rather like getting something for nothing, sharp practice, manipulating systems and many other matters which come to your mind. "

The jury convicted and Ghosh appealed on the grounds that the learned Judge misdirected the jury as to the meaning of dishonesty. His conviction was upheld. Lord Lane CJ said:

"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."


One can argue that the present test of dishonesty is too complicated and flies in the face of the modern approach of only giving guidance where necessary and then only in a simple straightforward way. However, having said that, the same approach is now taken in the case of theft as well as obtaining property by deception so that there is a consistent approach.


Finally we come to what many legal commentators refer to the Robin Hood type situation where someone steals from the rich in order to give to the poor. The Act provides that appropriation can still occur even if the appropriation is not made with a view to gain. Furthermore the defendant's conduct may still be considered dishonest even if they are willing to pay for the property in question. It should also be remembered that the prosecution does not need to go beyond dishonesty and establish that the defendant intended to use the property in a particular way or that they stand to gain financially from some enterprise. Therefore if someone appropriates property and is solely driven by some grudge or ill will directed at the owner, it will still be theft. This is so even though the defendant destroys the property after it is appropriated as part of some plot to see the victim suffer in some way.



(Word count 1594)

What is the Ghosh test for dishonesty? - BBC News



The definition of dishonesty according to the Theft Act 1968 is examined and cases and examples are used to clarify the term.

The essay covers the statutory defences set out in Section 2 (1) of the Act as well as discussing examples of situations which may or may not amount to dishonest behaviour.

Cases discussed include:

R v Holden (1991);

R v Small (1988); and

R v Ghosh (1982):

Again this essay lends itself to discussion and elaboration using the links provided.

(Word Count 1594)

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