LAW AND SOCIETY
disastrous results if it exculpates those with significantly different standards to society. Secondly, Lord Hughes reasoned that the main reason for the second limb to exist, which is the courts’ willingness to compromise in order to preserve the principle that the criminal responsibility for dishonesty must exist in the actual state of mind of the defendant, is already dealt with first limb of the test.10 If the defendant’s mind genuinely did not actually think that based on the facts, including the law and objective reasoning, would render his act to be criminal, then the person would objectively not be dishonest. His last criticism is that the Ghosh test was a divergence of the law, both of the UK Courts jurisprudence postTheft Act and the principle of dishonesty in civil law. On the jurisprudence point, Lord Hughes’ point, other than the fact that it has been inconsistent, is that the relevance of the defendant’s subjective view of dishonesty was in the case of R v Gilks11, where the case is predicated on the defendant’s knowledge of the mistake by the victim and whether it was dishonest for him to not raise the mistake.12 However, his point on divergence is more important in this discourse. Lord Hughes reasoned that the idea of “dishonesty” is not exclusive to criminal law, and draws comparison to the idea of dishonesty in civil law.13 His conclusion was that the second-limb of the Ghosh test does not represent the current law.14
Critical Analysis This section will discuss Lord Hughes’ obiter reasoning that had, in essence, overruled the second limb of the Ghosh test. The first two parts will look specifically at his reasoning and the last part would focus on the jurisprudential aspect of his reasoning.
and second limb of the Ghosh test. The significance is that the first limb of the Ghosh test is entirely objective and the defendant not appreciating the illegality of the facts or his actions does not absolve his actions just based on the first test. The objective test only decides if the action(s) is dishonest based on a reasonable man’s test and has nothing to do with the mind of the defendant. Thus, if only the first limb of the Ghosh test existed, the test would not even consider the subjective nature of the defendant’s mind. It is for this very fact that the second-limb of the test exist to vindicate the defendant if the defendant did not appreciate that his acts were dishonest. These aspects show that Lord Hughes’ reasoning did not really appreciate the relationship between the first and second limb of the Ghosh test. B. Civil Courts vs Criminal Courts? Another interesting aspect of Lord Hughes’ reasoning was that he drew parallels to civil law cases, reasoning that dishonesty is not unique to criminal law. He then reasoned that the test for dishonesty in civil law is characterised as objective.16 He then reasoned that although the ratio should be confined to their decision in civil cases. He also reasoned that there is “no logical or principled basis for dishonesty to differ according to whether it arises from a civil action or a criminal prosecution”.17 He also backed his reasoning with a fairly recent case18 where Leveson LJ highlighted that there is a discrepancy between criminal and civil law on the standard of dishonesty and that review is called for. Even in that case, the standard was deemed to be objective. This line of reasoning seems to make sense for the fact that the law should be certain, be it in criminal or civil cases.
A. Lack of Appreciation for Subjective Criminality It appears from Lord Hughes’ reasoning that he did not appreciate the reasoning for the subjective criminality in Ghosh. Although he quotes the example used by the courts in Ghosh15 with regards to an example of subjective dishonest opinion, he just dismisses the second limb test by saying that the objective first limb would have dismissed the defendant’s guilt if the defendant’s mind did not register the facts. This reasoning could be argued as a lack of appreciation as it does not fully understand the full significance for the relationship between the first 10
Ivey (op cit n 2) at [60].
11
R v Gilks [1972] 1 WLR 1341.
12
Ivey (op cit n 2) at [73].
13
ibid at [62].
14
Ivey (op cit n 2) at [74].
15
Ghosh (op cit n 1) at 1063.
However, it could be argued that the principle for criminal and civil law should be different. Firstly, as Lord Hughes admitted, the burden of proof would be different. Secondly, the consequences of criminal and civil cases are very different, where one could amount to criminal records or imprisonment and the other would amount to damages. William Blackstone, in his commentary about the law, argued, “the law holds better that ten guilty persons escape, than that one innocent party suffer”.19 This principle should show that the law, especially for criminal law, should be higher, even if only because it would be enough to protect any innocent from a 16 Per Barlow Clowes International Ltd v Abacha (“Barlow Clowes”) [2007] 102. 17
Ivey (op cit n 2) at [63].
18
Starglade Properties v Nash [2011] Llyod’s Rep FC 435.
19 William Blackstone, Commentaries on the Laws of England (1765-9).
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