Abandoning dishonesty—A brief German comment on the state of the law after Ivey
| Date | 01 June 2022 |
| DOI | 10.1177/00220183211035179 |
| Published date | 01 June 2022 |
| Author | Michael Bohlander |
| Subject Matter | Articles |
Article
Abandoning dishonesty—A
brief German comment on
the state of the law after Ivey
Michael Bohlander
Durham University, UK
Abstract
The debate about the two-pronged Ghosh test for dishonesty has troubled academics and
practitioners alike for some time. Concerns were raised about the jury’s ability to determine
both the objective honesty standard and the defendant’s personal compliance with it, which
might result in non-meritorious personal views allowing her to escape a dishonesty verdict. In
Ivey, followed by Barton and Booth, the subjective test was abandoned altogether. The change
has brought no doctrinal improvement, but instead unacceptably broadened criminal liability.
Leaving the determination of a nebulous moral concept such as dishonesty to the jury is
misguided, as it means determining a normative rule in the first place, which is not the jury’s
role. Looking at the German law on theft and fraud as a comparator system, the paper argues
that dishonesty should be abandoned and replaced by a lawfulness element to which the rules
on mistake of civil law can then be applied.
Keywords
Ghosh,Ivey, theft act 1968, dishonesty, correspondence principle, German law of theft and
fraud, lawfulness, mistake of civil law
Going in circles
The two-pronged test of dishonesty in Ghosh
1
, which replaced the test in Feely
2
, had for years caused
discussions
3
about the question of the defendant’s insight into the objective standards of dishonesty the
Corresponding author:
Michael Bohlander, Durham University, Durham, UK.
E-mail: michael.bohlander@durham.ac.uk
1. R v Ghosh [1982] QB 1053.
2. R v Feely [1973] QB 530.
3. See the literature cited in Emily Finch, ‘The Elephant in the (Jury) Room: Exploring Mock Jurors’ Understanding of Different
Approaches to Dishonesty’ [2021] Crim L R 513–31; Cerian Griffiths, ‘The Honest Cheat: A Timely History of Cheating and
Fraud Following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 6 (2020)’ 40 LS 252–68.
The Journal of Criminal Law
ªThe Author(s) 2021
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DOI: 10.1177/00220183211035179
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2022, Vol. 86(3) 170–178
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