R v Ghosh
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 05 April 1982 |
| Judgment citation (vLex) | [1982] EWCA Crim J0405-1 |
| Docket Number | No. 2359/B/81 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 April 1982 |
[1982] EWCA Crim J0405-1
The Lord Chief Justice of England (Lord Lane)
Mr. Justice Lloyd
and
Mr. Justice Eastham
No. 2359/B/81
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. R. FRANCIS appeared on behalf of the Appellant.
MR. J. DRINKWATER, Q.C. and MR. A. GLASS appeared on behalf of the Crown.
This is the judgment of the Court.
On 29th April 1981 before the Crown Court at St. Albans, this appellant was convicted on four counts of an indictment laid under the Theft Act 1968; on count 1, attempting to procure the execution of a cheque by deception; on count 2, attempting to obtain money by deception; on counts 3 and 4, obtaining money by deception. Count 1 was laid under section 20(2) and the remainder under section 15(1). He was fined the sum of £250 on each count with a term of imprisonment to be served in default of payment.
At all material times the appellant was a surgeon acting as a locum tenens consultant at a hospital. The charges alleged that he had falsely represented that he had himself carried out a surgical operation to terminate pregnancy or that money was due to himself or an anaesthetist for such an operation, when in fact the operation had been carried out by someone else, and/or under the National Health Service provisions.
His defence was that there was no deception; that the sums paid to him were due for consultation fees which were legitimately payable under the regulations, or else were the balance of fees properly payable; in other words that there was nothing dishonest about his behaviour on any of the counts.
The effect of the jury's verdict was as follows: as to count 1, that the appellant had falsely represented that he had carried out a surgical operation and had intended dishonestly to obtain money thereby; that as to count 2 he had falsely pretended that an operation had been carried out under the National Health Service; that as to count 3 he had falsely pretended that money was due to an anaesthetist; and as to count 4 that he had obtained money by falsely pretending that an operation had been carried out on a fee-paying basis when in fact it had been conducted under the terms of the National Health Service.
The grounds of appeal are simply that the learned Judge misdirected the jury as to the meaning of dishonesty.
What the Judge had to say on that topic was as follows: "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 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.
When the case of R. v. McIvor (1982) 1 All E.R. 491 came before the Court of Appeal, there were two conflicting lines of authority. On the one hand there were cases which decided that the test of dishonesty for the purposes of the Theft Act 1968 is, what we venture to call, subjective – that is to say the Jury should be directed to look into the mind of the defendant and determine whether he knew he was acting dishonestly: see R. v. Landy and Others (1981) 72 Cr. App. R. 237, where Lord Justice Lawton giving the reserved judgment of the Court of Appeal said at page 247 of the report:
"An assertion by a defendant that throughout a transaction he acted honestly does not have to be accepted but has to be weighed like any other piece of evidence. If that was the defendant's state of mind, or may have been, he is entitled to be acquitted. But if the jury, applying their own notions of what is honest and what is not, conclude that he could not have believed he was acting honestly, then the element of dishonesty will have been established. What a jury must not do is to say to themselves: 'If we had been in his place we would have known we were acting dishonestly so he must have known he was'."
On the other hand there were cases which decided that the test of dishonesty is objective. Thus in R. v. Green and Greenstein (1975) 61 Cr. App. R. 296, the Judge had directed the jury:
"….. there is nothing illegal in stagging. The question you have to decide and what this case is all about is whether these defendants, or either of them, carried out their stagging operations in a dishonest way. To that question you apply your own standards of dishonesty. It is no good, you see, applying the standards of anyone accused of dishonesty otherwise everybody accused of dishonesty, if he were to be tested by his own standards, would be acquitted automatically, you may think. The question is essentially the one for a jury to decide and it is essentially one which the jury must decide by applying its own standards." The Court of Appeal, in a reserved judgment, approved that direction.
In McIvor the Court of Appeal sought to reconcile these conflicting lines of authority. They did so on the basis that the subjective test is appropriate where the charge is conspiracy to defraud, but in the case of thef, the test should be objective. We quote the relevant passage in full:
"It seems elementary, first, that where the charge is conspiracy to defraud the prosecution must prove actual dishonesty in the minds of the defendants in relation to the agreement concerned, and, second, that where the charge is an offence contrary to section 15 of the Theft Act 1968 the prosecution must prove that the defendant knew or was reckless regarding the representation concerned. The passage in my judgment in R. v. Landy to which we have referred should be read in relation to charges of conspiracy to defraud, and not in relation to charges of theft contrary to section 1 of the 1968 Act, Theft is in a different category from conspiracy to defraud, so that dishonesty can be established independently of the knowledge or belief of the defendant, subject to the special cases provided for in section 2 of the Act, Nevertheless, where a defendant, has, givencevidence of his state of mind at the time of the alleged offence, the jury should be told to give that evidence such weight as they consider right, and they may also be directed that they should apply their own standards to the meaning of dishonesty,"
The question we have to decide in the present case is, first, whether the distinction suggested in McIvor is justifiable in theory, and secondly, whether it is workable in practice.
In Scott v. Metropolitan Police Commissioner (1975) A.C. 819, the House of Lords had to consider whether deceit is a necessary element in the common law crime of conspiracy to defraud. They held that it is not. It is sufficient for the Crown to prove dishonesty. In the course of his speech Viscount Dilhorne traced the meaning of the words "fraud", "fraudulently" and "defraud" in relation to simple larceny, as well as the common law offence of conspiracy to defraud. After referring to Stephen, History of the Criminal Law of England and East's Pleas of the Crown, he continued at page 836 of the report as follows:
"The Criminal Law Revision Committee in their Eighth Report on 'Theft and Related Offences' (1966) (Cmnd. 2977) in paragraph 33 expressed the view that the important element of larceny, embezzlement and fraudulent conversion was 'undoubtedly the dishonest appropriation of another person's property'; in paragraph 35 that the words 'dishonestly appropriates' meant the same as 'fraudulently converts to his own use or benefit, or the use or benefit of any other person', and in paragraph 39 that 'dishonestly' seemed to them a better word than 'fraudulently'.
"Parliament endorsed these views in the Theft Act 1968, which by section 1(1) defined theft as the dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it. Section 17 of that Act replaces sections 82 and 83 of the Larceny Act 1861 and the Falsification of Accounts Act 1875. The offences created by those sections and by that Act made it necessary to prove that there had been an 'intent to defraud'. Section 17 of the Theft Act 1968 substitutes the words 'dishonestly with a view to gain for himself or another or with intent to cause loss to another' for the words 'intent to defraud'."
"If 'fraudulently' in relation to larceny meant 'dishonestly' and 'intent to defraud' in relation to falsification of accounts is equivalent to the words now contained in section 17 of the Theft Act 1968 which I have quoted, it would indeed be odd if 'defraud' in the phrase 'conspiracy to defraud' has a different meaning and means only a conspiracy which is to be carried out by deceit."
Later on in the same speech Viscount Dilhorne continued as follows: "As I have said, words take colour from the context in which they are used, but the words 'fraudulently' and 'defraud' must ordinarily have a very similar meaning. If, as I think, and as the Criminal Law Revision Committee appears to have thought, 'fraudulently' means 'dishonestly', then 'to defraud' ordinarily means, in my opinion, to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled."
In Scott the House of Lords were only concerned with the...
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