Dishonesty and Theft: Time for Change?

The offence of theft in England and Wales is governed by the Theft Act 1968 (TA 1968), which replaced the older and notoriously convoluted Larceny Act 1916 (LA 1916).

The 1968 Act is often described as one of the Law Commission’s major achievements, simplifying and rationalising the law of property offences. Yet one element of the offence has generated persistent controversy: dishonesty.

Although theft contains four other components: appropriation, property, belonging to another, and intention to permanently deprive, dishonesty has long been the most difficult and debated.

This article explores how dishonesty is defined, how the courts have applied it through the Ghosh test, and the reforms that have been proposed to clarify or replace it.

Dishonesty Under the Theft Act

Section 2(1) of the TA 1968 provides limited guidance on what does not constitute dishonesty.

It lists situations where a defendant is not dishonest, for example, where they believe they have a legal right to the property. But the section does not define dishonesty itself. When a defendant’s behaviour falls outside these statutory exceptions, courts rely on the common‑law test established in R v Ghosh.

The Ghosh Test

The Ghosh test was created in R v Ghosh [1982], a case involving a surgeon who claimed payments for work done by others.

On appeal, he argued that dishonesty should be judged subjectively, based on his own state of mind. The Court of Appeal disagreed, creating a two‑stage test combining both objective and subjective elements.

The jury must consider:

• Objective limb: Were the defendant’s actions dishonest according to the standards of reasonable and honest people?
• Subjective limb: Did the defendant realise that reasonable and honest people would regard his actions as dishonest?

This hybrid approach was intended to strike a balance: society’s standards matter, but so does the defendant’s awareness of those standards.

Criticisms of the Ghosh Test

1. Circularity and inconsistency

The objective limb relies on the standards of “reasonable and honest people,” but what counts as dishonest varies across social groups, cultures, and contexts. Geary notes that this creates a circular definition: dishonesty is what honest people think is dishonest.

A large‑scale study by Dr Stefan Fafinski and Dr Emily Finch illustrates this inconsistency. When 15,000 people were surveyed:

• 46% of women thought it was dishonest for a nurse to persuade an elderly patient to change their will in her favour.
• Only 37% of men agreed.
• In a mock jury scenario, only four out of twelve jurors would have convicted the nurse.

The results show that juries do not share a uniform understanding of dishonesty, a serious problem for a test that depends on their collective moral judgement.

2. The “Robin Hood defence”

Professor Griew argued that the subjective limb allows defendants to claim their actions were morally justified; stealing “for the community”, and therefore not dishonest.

Lane CJ in Ghosh dismissed this concern, insisting that noble motives cannot make objectively dishonest conduct honest. Still, the possibility of moral self‑justification has troubled commentators.

3. Jury confusion

Because jurors must apply both limbs, the test can be difficult to explain and inconsistently applied. The subjective limb requires jurors to infer what the defendant believed about societal standards, a complex psychological assessment.

Proposed Reforms

1. A purely subjective test

Some critics argue that dishonesty should be judged entirely from the defendant’s perspective. But this risks making criminal liability depend on the moral outlook of the accused, allowing those with flexible ethics to escape liability and undermining the protection of property.

2. Expanding Section 2(1)

Professor Glazebrook suggests adding further statutory exceptions to clarify when a defendant cannot be dishonest. This would codify more scenarios directly into the Act. However, expanding Section 2(1) risks making the law more complex and less accessible to the public.

3. Returning to the Larceny Act definition

LA 1916 defined dishonesty as acting “fraudulently and without a claim of right.” This is simpler and arguably clearer. But “fraudulently” now carries specific connotations due to modern fraud offences, so the term may need to be removed or replaced.

Conclusion

The Ghosh test is not wholly defective. In many cases, including Ghosh itself, it has produced fair and accurate outcomes. Its combination of objective and subjective elements offers a compromise between societal standards and individual awareness.

However, the test is far from perfect. The lack of a clear statutory definition, the variability of jury standards, and the conceptual circularity of “dishonesty” all suggest that reform may be desirable. Whether through statutory clarification, a revised test, or a return to a simpler definition, the law may eventually need updating.

For now, dishonesty remains one of the most challenging concepts in criminal law; difficult to define, difficult to apply, and difficult to reform.