The New Test for Dishonesty in Criminal Law—Lessons From the Courts of Equity?
| Published date | 01 February 2020 |
| Author | Zach Leggett |
| DOI | 10.1177/0022018319879847 |
| Date | 01 February 2020 |
| Subject Matter | Articles |
Article
The New Test for Dishonesty
in Criminal Law—Lessons
From the Courts of Equity?
Zach Leggett
University of Sunderland, UK
Abstract
The Supreme Court decision in Ivey v Genting Casinos rejected the two-stage test for dishonesty
set out in R v Ghosh and replaced it with a single, objective test which transcends both criminal
and civil law. This article asks whether it was correct to create a single test for dishonesty and
in doing so, what role will subjectivity now play in the criminal law’s application of what is
considered dishonest behaviour. Historically, the civil courts have beset with confusion as to
the role of subjectivity in the test for dishonesty in the light of Royal Brunei Airlines v Tan. The
author will consider whether lessons can be learned from the civil courts and whether similar
problems will trouble criminal law, particularly in the light of criticism of the Ivey test and a
preference, by some, for subjectivity to play a greater role in criminal liability for theft and
other dishonesty offences.
Keywords
Theft, fraud, dishonesty, dishonest assistance, subjective and objective test
Introduction
In criminal law, the issue of dishonesty in certain property offences
1
is considered a fundamental
ingredient
2
in finding criminal liability. However, the concept of dishonesty is only partially defined
in statute, with s 2 of the Theft Act 1968 providing examples where a person is not acting dishonestly.
Namely when he is acting in a belief that he has a right in law,
3
a belief that the other person would
consent to his taking of the property
4
or that he is acting under a belief that the owner of the property
Corresponding author:
Zach Leggett, School of Law & Tourism, Faculty of Business, Law and Tourism, Reg Vardy Building, Sir Tom Cowie Campus at St.
Peters, University of Sunderland, Sunderland, SR6 0DD, UK.
E-mail: zach.leggett@sunderland.ac.uk
1. For example, theft under s 1 of the Theft Act 1968 and Fraud set out under s 1 Fraud Act 2006.
2. As per Edmund Davies LJ in R v Royle [1971] 1 WLR 1764, 1770.
3. Section 2(1)(a) Theft Act 1968.
4. Section 2(1)(b) Theft Act 1968.
The Journal of Criminal Law
2020, Vol. 84(1) 37–48
ªThe Author(s) 2019
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DOI: 10.1177/0022018319879847
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