Dishonesty
Encyclopedia
Dishonesty is a word which, in common usage, may be defined as the act or to act without honesty. It is used to describe a lack of probity, cheating, lying or being deliberately deceptive or a lack in integrity, knavishness, perfidiosity, corruption or treacherousness. It is used about charlatanism and quacks.
Dishonesty is the fundamental component of a majority of offences relating to the acquisition, conversion and disposal of property (tangible or intangible) defined in the criminal law
such as fraud
.
is more complex and has been subject to a number of incomplete and unsatisfactory definitions. This is because such are the variety of circumstances in which dishonesty may occur that creating an over-arching definition is virtually impossible.
For many years, there were two views in English law
. The first contention was that the definitions of dishonesty (such as those within the Theft Act 1968
) described a course of action, whereas the second contention was that the definition described a state of mind. A clear test within the criminal law emerged from R v Ghosh
(1982) 75 CR App. R. 154. The Court of Appeal
held that dishonesty is an element of mens rea
, clearly referring to a state of mind, and that overall, the test that must be applied is hybrid, but with a subjective bias which "looks into the mind" of the person concerned and establishes what he was thinking. The test is two-stage:
The decision of whether a particular action or set of actions is dishonest remains separate from the issue of moral justification. For example, when Robin Hood
robbed the Sheriff of Nottingham
he knew that he was, in effect, stealing from the Crown
, was acting dishonestly and would have been properly convicted of robbery
. His argument would have been that he was morally justified in acting in this way but in modern legal terms this could only have been brought to the court by way of mitigation of sentencing
and would not have affected the inference of dishonesty.
Where dishonesty is an issue in civil cases, the trend in English Law is for only the actions to be tested objectively and not to apply any test as to the subjective state of mind of the actor. For a recent discussion of dishonesty as it applies in trust law specifically but also civil law more generally, see http://www.alastairhudson.com/trustslaw/DAMar07.pdf
contains a single definition for dishonesty which is intended to apply to all the substantive offences. Yet, rather than defining what dishonesty is, s2 describes what it is not, allowing a jury to take a flexible approach, thus:
s2(1). A person’s appropriation of property belonging to another is not to be regarded as dishonest:
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
s2(2). A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
For the purposes of the deception offences, dishonesty is a separate element to be proved. The fact that a defendant knowingly deceives the owner into parting with possession of property does not, of itself, prove the dishonesty. This distinguishes between "obtaining by a dishonest deception" and "dishonestly obtains by a deception".
Dishonesty is the fundamental component of a majority of offences relating to the acquisition, conversion and disposal of property (tangible or intangible) defined in the criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
such as fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
.
English law
Dishonesty in lawLaw
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
is more complex and has been subject to a number of incomplete and unsatisfactory definitions. This is because such are the variety of circumstances in which dishonesty may occur that creating an over-arching definition is virtually impossible.
For many years, there were two views in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. The first contention was that the definitions of dishonesty (such as those within the Theft Act 1968
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
) described a course of action, whereas the second contention was that the definition described a state of mind. A clear test within the criminal law emerged from R v Ghosh
R v Ghosh
R v Ghosh [1982] is an English criminal law case, dealing with dishonesty, deception and theft. It is relevant in prosecutions under, for example, the Theft Act 1968, the Fraud Act 2006, the Social Security Administration Act 1992 and the Immigration and Asylum Act.-Facts:Dr Ghosh was a surgeon....
(1982) 75 CR App. R. 154. The Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that dishonesty is an element of mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
, clearly referring to a state of mind, and that overall, the test that must be applied is hybrid, but with a subjective bias which "looks into the mind" of the person concerned and establishes what he was thinking. The test is two-stage:
- "Were the person's actions honest according to the standards of reasonable and honest people?" If a juryJuryA jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
decides that they were, then the defendant's claim to be honest will be credible. But, if the courtCourtA court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
decides that the actions were dishonest, the further question is: - "Did the person concerned believe that what he did was dishonest at the time?"
The decision of whether a particular action or set of actions is dishonest remains separate from the issue of moral justification. For example, when Robin Hood
Robin Hood
Robin Hood was a heroic outlaw in English folklore. A highly skilled archer and swordsman, he is known for "robbing from the rich and giving to the poor", assisted by a group of fellow outlaws known as his "Merry Men". Traditionally, Robin Hood and his men are depicted wearing Lincoln green clothes....
robbed the Sheriff of Nottingham
Sheriff of Nottingham
The Sheriff of Nottingham was historically the office responsible for enforcing law and order in Nottingham and bringing criminals to justice. For years the post has been directly appointed by the Lord Mayor of Nottingham and in modern times, with the existence of the police force, the position is...
he knew that he was, in effect, stealing from the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
, was acting dishonestly and would have been properly convicted of robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
. His argument would have been that he was morally justified in acting in this way but in modern legal terms this could only have been brought to the court by way of mitigation of sentencing
Sentence (law)
In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime...
and would not have affected the inference of dishonesty.
Where dishonesty is an issue in civil cases, the trend in English Law is for only the actions to be tested objectively and not to apply any test as to the subjective state of mind of the actor. For a recent discussion of dishonesty as it applies in trust law specifically but also civil law more generally, see http://www.alastairhudson.com/trustslaw/DAMar07.pdf
Theft Act 1968
The Theft Act 1968Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
contains a single definition for dishonesty which is intended to apply to all the substantive offences. Yet, rather than defining what dishonesty is, s2 describes what it is not, allowing a jury to take a flexible approach, thus:
s2(1). A person’s appropriation of property belonging to another is not to be regarded as dishonest:
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
s2(2). A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
- The s2(1)(a) claim of right is a difficult concept in that it represents a statutory exception to the fundamental public policyPublic policy (law)In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
principle ignorantia juris non excusatIgnorantia juris non excusatIgnorantia juris non excusat or ignorantia legis neminem excusat is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content...
and allows a limited mistake of lawMistake of lawMistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court. In jurisdictions that use the term, it is typically differentiated from mistake of fact...
defence. According to R v Turner (No2) [1971] 2 All ER 441, a case in which a man was charged with the s1 TheftTheftIn common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
of his own car, the test was one of honest belief in a right, not a mere permission, to act in the particular way. In this, the test is subjective and a matter of fact for the jury to decide. - If the owner or some person able to give a valid consentConsentConsent refers to the provision of approval or agreement, particularly and especially after thoughtful consideration.- Types of consent :*Implied consent is a controversial form of consent which is not expressly granted by a person, but rather inferred from a person's actions and the facts and...
, actually consented to the taking, the property would not belong to another and no actus reusActus reusActus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
would exist. This provision applies to the situation in which either the consent is void ab initioAb initioab initio is a Latin term used in English, meaning from the beginning.ab initio may also refer to:* Ab Initio , a leading ETL Tool Software Company in the field of Data Warehousing.* ab initio quantum chemistry methods...
or is subsequently voided. If the existence or effect of the vitiating factor is not recognised by the defendant, then he would not be dishonest. For example, if a contract was affected by a common or mutual mistakeMistake (contract law)In contract law, a mistake is an erroneous belief, at contracting, that certain facts are true. It can be argued as a defence, and if raised successfully can lead to the agreement in question being found void ab initio or voidable, or alternatively an equitable remedy may be provided by the courts...
. But if the defendant is initially innocent, he may become dishonest is he later realises the mistake and decides to keep the property (i.e. an omission). Similarly, if has knowingly misrepresented a material fact and this has induced a consent that he knows or ought to know would not have been freely given, he will be dishonest. - Defendants who are in a fiduciary relationship are expected to make even unreasonable efforts to identify where the relevant property has come from, but the ordinary defendant who finds property apparently abandoned on the street may not be dishonest if there are no serial numbers or marks that would help to identify the owner. Note that to be abandoned, the owner must have intended to give up all rights in the property and not to pass those rights to another. For example, material discarded in a rubbish bin is not abandoned. The owner intends another to come, empty the bin and dispose of the property without stealing it in the process. Hence, it will be theft to remove any property from a bin or legal disposal site.
- If the defendant knows that the owner will not sell the property, so takes the property in any event but leaves a realistic sum of money by way of payment, this will be a dishonest appropriation.
For the purposes of the deception offences, dishonesty is a separate element to be proved. The fact that a defendant knowingly deceives the owner into parting with possession of property does not, of itself, prove the dishonesty. This distinguishes between "obtaining by a dishonest deception" and "dishonestly obtains by a deception".
See also
- English lawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
- Intellectual dishonestyIntellectual dishonestyIntellectual dishonesty is dishonesty in performing intellectual activities like thought or communication. Examples are:* the advocacy of a position which the advocate knows or believes to be false or misleading...
- PiracyPiracyPiracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
- R v GhoshR v GhoshR v Ghosh [1982] is an English criminal law case, dealing with dishonesty, deception and theft. It is relevant in prosecutions under, for example, the Theft Act 1968, the Fraud Act 2006, the Social Security Administration Act 1992 and the Immigration and Asylum Act.-Facts:Dr Ghosh was a surgeon....
- ShopliftingShopliftingShoplifting is theft of goods from a retail establishment. It is one of the most common property crimes dealt with by police and courts....
- Shrinkage (accounting)Shrinkage (accounting)In financial accounting the term inventory shrinkage is the loss of products between point of manufacture or purchase from supplier and point of sale. The term shrink relates to the difference in the amount of margin or profit a retailer can obtain...