Dishonesty in the law of crime - Essay Example

Task: Dishonesty in the law of crime Introduction Dishonesty is among the several components that bring about the offence of theft. It is also a basic element in other crimes involving property such as burglary and robbery. Despite this role, dishonesty plays a significant of role in offences related to property; still the law has no clear definition of this term (Wilson 39). This is because the committee for the revision of criminal law saw it fit since the word was already in use in a common manner of speaking, it was also right to use in law without the need for definition. The ultimate aim of this paper is to view the ghosh test in scrutiny and try to see its relation to theft and to analyze how the law views dishonesty. Dishonesty in the Law of Crime In determining the extent of dishonesty in law, one must look at these scenarios: Whether what a person does is dishonest according to the standards of honesty and reasonable people? If the answer is no, then that person cannot be said to be dishonest thus cannot be convicted of the crime (Haplin 27). If the answer is yes then a further question should be asked: Whether the defendant realised that honest and reasonable people would find his actions as dishonest? When the feedback is negative, the defendant is honest; therefore, he is supposed to be acquitted. If the feedback is positive, then the defendant is dishonest and is supposed to be convicted. In other words, a defendant can be deemed to have acted dishonestly if he knows that his doing is dishonest from the perspective of ordinary people (Molan 52). The use of this criterion, whereby honesty is determined by the standards of honest and reasonable people, can be criticised since it can lead to inconsistency given that various juries can reach different decisions on similar cases. Williams states that given the low levels of self-discipline that is prevailing in the society, he advises that the query of dishonesty should not be left to the jury (78). Therefore, the ghosh test has its basis on the assumption that there is a single standard of honesty that is universal and members of the society that are thinking right are the ones who hold it. This standard is seen to be so high that it can place a line between what is honest and what is unlawful (dishonest). The satisfactory and workable test about dishonesty should specify when conduct is to be viewed as dishonest (Herring 32). Conduct should be viewed as dishonest if the one finding facts decides that reasonable and ordinary people would view the conduct as dishonest. This test is a fully objective assessment of dishonesty that is criminal and it contradicts the ghosh test to some extent, but it retains a little reference to the ordinary standards of the community (Williams and Waller 109). The Theft Act An individual is guilty of theft if he appropriates another person’s property dishonestly and intends to keep it away from him or her permanently (Clarkson 87). It is not material whether this appropriation takes place for the gain of the thief. This act does not give the definition of dishonesty; instead, it only gives some specific situations where an individual is considered as not dishonest (Williams and Waller 157). The Ghosh Test of Dishonesty This is the current test for dishonesty, it is a test brought forward by the court of appeal, and is a two-stage objective/substantive test (Molan 17). This test is somewhat good because the decision as to whether the accused is guilty or not is left for the jury. The ghosh test has a number of criticisms because in this world there is no single standard of honesty held by the reasonable people of the society. Justices Toohey and Gaudron also criticised Ghosh as having practical problems. They also felt that, not all offences involving dishonesty were similar (Haplin 97). Subsequently, there is a need for the judge conducting the trial to stipulate the clear explicit meaning of dishonest to the jury. This is a peculiar test for dishonesty since it is a query of a fact whereby the mental state of the defendant has to be judged according to the subjective knowledge he has while still referencing to an objective standard of honesty. The Offence of Theft The Theft Act 1968 has stated that an individual will be guilty of the offence if they ‘dishonestly appropriate property with the aim of permanently keeping it away from the owner (Wilson 159). The appropriation of property is the Actus Reus whilst the act of dishonesty is the Mens Rea. The notion of dishonesty has been the centre of a continued disagreement between the court of appeal and top academic lawyers (Williams 181). The Theft Act, 1968 is based on the effort of the committee on Criminal Law Revision. It gave a totally new start and defined theft and its related offences in simple language thus getting rid of the structure that was unnecessarily complicated (Clarkson 173). The committee dedicated slight of its statement to dishonesty; however, they regarded it as a very important and fundamental component in the offence. The committee felt that ‘dishonesty’ might well stand without any definition and, indeed, some committee members preferred not to have it defined at all (Molan 139). In the definition of theft, the term dishonesty should not be used in order to keep away from risks. The Ghosh test contains two parts, explains senior tutor Jo Theobald, who has specialised in criminal law (Clarkson 192). The Theft Act (1968) does not set out a definition of dishonesty. It only gives certain situations where an individual is considered as not not being honest. The Appropriate Test of Dishonesty Williams reviewed the growth of the Victorian and English advances to the explanation of dishonesty and summarized the resolution in peters (106). However, the authority of the decision of the high court in peters constitutes a technical majority and presents the view of just two court members. Further, it shows that the judgement that is leading contains several inconsistencies. The variation in opinion on the true meaning of this concept exists in Australian and English law (Molan 205). One should consider the Abberton case in deciding the appropriate test for dishonesty. In this particular case, once the accused realised that the amount of money in the bank account of his employer did not match up with the accounts, he got worried and falsified the records for a period, hoping that he would eventually catch the thief (Williams 218). The court found out that such actions constituted fictitious accounting not looking at the intention of the victim, but on the effect of the accused basing it on the intent to defraud. The jury would face a dilemma since the victims actions were a normal reaction by a decent person who is under stress and on the other hand, they would be directed to declare the person guilty based on the concept of dishonesty as per ordinary people that are decent. This test, which the high court expresses, refers to concepts of decency and ordinariness instead of reasonableness and morality (Williams and Waller 238). Therefore, the best approach to dishonesty is for the judge to help the jury understand the nature of the case. In a situation where the jury has to decide whether there is a dishonest act, the appropriate course is for the judge conducting the trial to point out the intent, knowledge and belief, which render the act as dishonest, and then instruct the jury to decide if the culprit had that intent, knowledge and belief (Clarkson 221). If this is so, they should establish whether the act was dishonest in that account. This is the appropriate test of dishonesty. Conclusion Dishonesty is the main thing in finding out the intent, and thus liability, of the accused in many crimes. Due to the subjective way of the law on the concept of dishonesty, there have been many calls to shed light on the law (Molan 194). According to me, it seems that in most criminal cases involving theft, two quite different issues have to be determined. The first is to decide whether the accused was in the state of mind that the prosecution alleges, and secondly, whether that state of mind falls in the area of dishonesty that is required by that offence. Whether the act is done with the belief or knowledge of a specific thing or a specific intent is the question that should be asked in cases where honesty is an issue. It should not apply when the case is adequately characterized as dishonest. My opinion on the test of dishonesty is whether there was any intent behind the action. Intent should be the core word for any standard of test. Works Cited Clarkson, Christopher M. Understanding Criminal Law. London: Sweet and Maxwell, 2005. Print Haplin, Andrew. Definition in the Criminal Law. London: Hart Publishing, 2004. Print Herring, Jonathan. Criminal Law. New York: Palgrave Macmillan, 2011. Print Molan, Michael T. Cases and Material on Criminal Law. London: Taylor and Francis, 2007. Print Molan, Michael T. Sourcebook on Criminal Law. London: Routledge, 2001. Print Williams, Charles R. And Louis Waller. Criminal Law: Texts and Cases. London: Butterworths, 2001. Print Williams, Glanville. L. Learning the Law. London: Sweet and Maxwell, 2006. Print Wilson, William. Criminal law: doctrine and theory. London: Longman, 1998. Print Read More