Mistaking theft: Dishonesty ‘turns over a new leaf’
| Author | Bo Wang |
| Published date | 01 February 2022 |
| Date | 01 February 2022 |
| DOI | http://doi.org/10.1177/00220183211028702 |
| Subject Matter | Articles |
Article
Mistaking theft: Dishonesty
‘turns over a new leaf’
Bo Wang
University of Surrey, UK
Abstract
The common law doctrine of mistake of fact or civil law works as denial of offending, but
dishonesty works as one of the definitional elements of crimes such as theft and fraud. It is
argued in this article that the rulings in R v Barton [2020] 3 WLR 1333 and Ivey v Genting Casinos
(UK) (trading as Crockfords Club) [2018] AC 391 do not change the doctrine of mistake of fact or
civil law but do change the law in respect of mistakes about what is honest. A defendant whose
conduct is taken as dishonest according to community standards may well avoid criminal
liability if he was genuinely mistaken about a fact or civil law right. It is submitted that since the
doctrine of mistake of fact or civil law is already provided for, the law is not expanded greatly
by the rulings in Ivey and Barton which merely bring back the objective test of dishonesty that
had long been established before the Ghosh test. The decision in Barton is substantively wel-
come, even though the change in the law arose from a civil law case where dishonesty was not
an issue before the court.
Keywords
Dishonesty, theft, mistake of fact or civil law, claim of right, community standards, consent
Introduction
Williams argued persuasively that an unreasonable mistaken belief in a claim of right provided a defence
to larceny, which covers not only mistake of civil law right but also mistake of fact.
1
Both kinds of
mistake show that the taking was without the requisite intent.
2
On a belief in a moral claim of right,
Williams wrote: ‘But in exceptional circumstances belief in moral right may show that the act is not done
[dishonestly]’.
3
As we will see below, in Williams’s latter writings he made it clear that it was not for the
thief to put forward his own standard of moral right or of normative honesty. The standards of honesty
Corresponding author:
Bo Wang, University of Surrey, Guildford GU2 7XH, UK.
E-mail: b.wang@surrey.ac.uk
1. G Williams, Criminal Law, The General Part (2nd edn Stevens & Sons, London 1961) 305–331.
2. Ibid., 322.
3. Ibid.
The Journal of Criminal Law
ªThe Author(s) 2021
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DOI: 10.1177/00220183211028702
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2022, Vol. 86(1) 3–17
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