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R v Ghosh [1982] EWCA Crim 2 is an English criminal law case, dealing with dishonesty, deception and theft. It was relevant in prosecutions under, for example, the Theft Act 1968,[1] the Fraud Act 2006,[2] the Social Security Administration Act 1992 and the Immigration and Asylum Act. Much of its effect has been overruled by the Supreme Court in Ivey v Genting [2017] UKSC 67

R v Ghosh
Court Court of Appeal
Citation(s) [1982] EWCA Crim 2, [1982] 3 WLR 110, [1982] QB 1053, [1982] 2 All ER 689
Keywords
Dishonesty

Contents

FactsEdit

Dr Ghosh was a surgeon. He was convicted of four offences under the Theft Act 1968 sections 20(2) and 15(1). During his work as a locum surgeon he obtained money by claiming fees for work that others had carried out, or that had been carried out under England's National Health Service. The jury found him guilty and he appealed on the basis that the trial judge had told the jury to use their common sense to determine whether the accused's conduct had been dishonest or not. Ghosh argued that the judge should have instructed the jury that dishonesty was about the accused’s state of mind (a subjective test) rather than the jury’s point of view (an objective test).

JudgmentEdit

The Court of Appeal found that the conviction was proper and dismissed Dr Ghosh's appeal because the original direction did not lead to an unsafe or unsound conviction.

However, the Court reformulated the test for dishonesty. It held that,

Hence the test for dishonesty was both subjective and objective. As a result, the 'Ghosh test', which the jury was required to consider before reaching a verdict on dishonesty:

  1. Was the act one that an ordinary decent person (normally considered to be the ubiquitous ‘The man on the Clapham omnibus’) would consider to be dishonest (the objective test)? If so :
  2. Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)? [This part of the test was overruled by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67]

Note that it was not essential for a person to admit that they acted in a way that they knew to be dishonest, it was probably enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was ‘wrong’.

Ivey v GentingEdit

Ivey v Genting Casinos (UK) Ltd t/a Crockfords was a Supreme Court case decided in late 2017 which overruled R v Ghosh. It held that the second (subjective) limb of Ghosh was no longer good law and jury directions on the meaning of dishonesty ought only to contain the first, objective, limb. When dishonesty was in question, the fact-finding tribunal had first to ascertain the actual state of the individual's knowledge or belief as to the facts. The question whether the conduct was honest or dishonest was then to be determined by applying the objective standards of ordinary decent people. The Supreme Court noted particularly that though Ivey v Genting concerned a cheating gambler (as they found Ivey to be) suing the casino in a civil case, there was no good reason for distinguishing civil from criminal dishonesty (paragraph 63 of the judgement) and that accordingly the criminal law as previously understood in Ghosh had been incorrectly understood.


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