Dishonesty in Criminal Law: Analyzing the Offence of theft - Essay Example

Law Dishonesty in Criminal Law: Analyzing the Offence of theft (as defined by section1 Theft Act 1968) and the Ghosh [1982 QB1053 test of dishonesty. According to the theft Act 1968, a person is termed as being answerable to theft if he appropriates another persons’ property dishonestly especially with an aim of depriving the original owner of this property. The Act does not take into consideration if the appropriation of the property is made with intent of deriving benefit from the thief or not. As pertains to dishonesty, the Act documents that an individual cannot be termed as being dishonesty if the individual appropriates another persons’ property with the belief that the law approves of it either on behalf of a third party or his behalf. Consequently, it is not an act of dishonesty if an individual appropriates the other person’s property with the belief that if the person found out about the appropriation, he would approve of it and would understand the circumstances that led to the appropriation. Moreover if an individual appropriates the property of owner of the property who cannot be discovered, he cannot be termed as being dishonest. Any individual acting contrary to the provisions by this Act is regarded as being dishonest (Act of theft of 1968). As per this Act, dishonesty according to the theft Act of 1968 is inclined to the moral view point of the defendant. This is evidenced by the provisions that need to be met prior to an individual being defined as being dishonesty. According to the first provision, the defendant cannot be termed as being dishonesty if he has the opinion that the law allows him to act dishonestly in appropriating another person’s property. This provision creates a lee way through which the moral point of view of an individual is inculcated into his activities. Where the defendant is of the opinion that the law permits him to appropriate another’s property, he will do so without any fear and defend himself with this Act. This means that the theft Act provisions of dishonesty are based upon the moral point of view of the defendant (Act of theft of 1968). Secondly, the theft Act of 1968 supports the moral point of view of the defendant incase litigation is failed and the defendant acquitted for being dishonesty. This is based on the second provision made that an individual cannot be termed as being dishonest if he performs. This is especially where the Act inculcates the provision that if the person whose property is being appropriated found out, he would not mind. This means that the morality of the defendant is included since this asserts the relationship that the defendant has with the plaintiff. Moreover, the Act provides that it is not dishonesty if the person who appropriates the property understands the circumstances. This creates loopholes in dishonesty in criminal law since it inclines more on what the defendant terms as right hence the law protecting him for his opinion leading to him acting dishonestly (Act of theft of 1968). In conjunction, the theft Act of 1968 provides that it is not dishonesty if an individual appropriates the property of a person who cannot be found. This propagates the act of dishonesty among the defendant since the excuse of the person who owns property being absent will prevail in defense. This evidences that the Act incorporates the moral opinion of the defendant. This is since if the defendant can prove that the appropriated property had stayed for long without being claimed by anyone else. This leads to the avenue in which crime and propagation of dishonesty can be escalated since the moral opinion of the defendant is protected by the theft Act of 1968. This therefore emulates that the Act of theft of 1968 has a bearing on the defendant’s moral point of view (Act of theft of 1968). Other than the Act of theft of 1968, the test of dishonesty in R v Ghosh1 has led to prevalent debate as pertains to the moral point of view of the defendant. This has led to disputes especially if one of the courts relies on the Act of theft leading to decisions that are conflicting between the Divisional court and the court of Appeal. As pertains to this aspect, there were two distinct lines of authority that appeared since the jury questioned the issue of dishonesty in Feely2. This led to an agreement between the two courts that the test was the least qualified as a moral judgment. However, there was one line that asserted that the moral judgment was of the accused person while the other moral judgment was of the honest and reasonable man (Ghosh test). Is it important to have a measure of dishonesty? This is a question that has plagued the criminal sector for a lengthy period of time now. I assert that it is indeed important to have a viable measure of testing dishonesty among theft defendants. This is since among the courts, litigations of theft and offences related to theft currently plague the courts, necessitating the need to come up with the right terms. Secondly, the House of Lords has not yet set a ruling as pertains to the measurement that is to be used to assess the degree of dishonesty among theft defendants. Consequently, there is a social reckoning that is attached with having a fair test against dishonesty among the theft defendants. This entails the importance that lies with coming up with a test that that will have equity in testing the dishonesty of theft defendant (Ghosh test). According to R v Ghosh, this law provides for the two tests that are employed to test if the defendant accused of theft is dishonest or not. The first test is the subjective test; test based on the information gained from the subject. The subject in this case emulates the defendant who has been accused of theft on the grounds of dishonesty. The subjective test is based on the answers that the defendant presents as pertains to the knowledge of crime. A defendant who proves that he had the opinion that he was not being dishonesty when carrying out the theft is regarded as not being dishonest as pertains to the subjective test (Ghosh test). Objective test is the next test recommended by R v Ghosh in assessing the dishonesty of a defendant on whom litigation of theft has been filed. This test is termed as objective since it has been tested and thus serves as a viable option while compared to the subjective test. An objective test of dishonesty is based on the opinion that a reasonable person has as pertains to the theft act. This test is given to an independent party and this serves as the basis that assesses if the defendant was dishonest during his act that has been regarded as theft. The objective test is dependent on another persons’ opinion as pertains to the theft act. A ruling made that assesses if the individual who committed theft was dishonesty relies on the opinion of an independent person hence more viable in assessing if the defendant was dishonesty. This objective test does not only rely on the moral judgment of the defendant, it also incorporates the moral judgment of an independent individual. If the honest person finds what he did as not being dishonest, then the defendant accused of theft is not dishonest. However, if the honest person finds that the act was dishonest a further probing question is asked (Ghosh test). The defendant accused of theft is asked if he knows that the act he did is regarded as dishonest by honest people and his response sought. If the defendant asserts that he did not know the act he did was dishonest to honest people, then he is not dishonest as pertains to this test. However, if the defendant responds that he knew that the theft act he committed was dishonest, he is supposed to be convicted of the crime and regarded as dishonest. This means that under the Ghosh test, a defendant is termed as being dishonesty if he acts dishonestly and knows that in the eyes of honest people, his actions are dishonest. However, this test has been criticized since there may be inconsistency in the opinion that the members of the jury have as pertains to dishonesty. Consequently, the failure of the method to account that there is a possibility that the social measure of honesty may alter or decline has also been used to criticize this test. This test assumes that there is a universal held perception of honesty that the jury should ascribe to when trying to determine if an individual was dishonest (Marks & Jenvey, 2008). There has been academic criticism to the reliability and the validity of the Ghosh test of dishonesty. However, there has been no empirical evidence that disputes the viability of the Ghosh test and hence it is widely employed by various courts in ascertaining the degree of dishonesty in acquitting a defendant charged with theft claims. This is especially when the defendant involves his moral judgment as a form of defense against the litigation filed against him. In finality, dishonesty being among the components that make up the theft offence it is of essence to come up with a test that addresses equity in its quest to justify if an individual was dishonest or not (Keveny, 2002). References Act of Theft of 1968 Felly [1973] Q. B. 530 Ghosh test: R v Ghosh [1982] Q. B. 1053 Keveney, S. (2002). The dishonesty rule: A proposal for reform. Texas Law Review, 81(1), 381-403. Marks, D., & Jenvey, E. (2008). The fix is off. Intheblack, 78(4), 66-67. Read More