R v Ghosh

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R v Ghosh
Surgeons at Work.jpg
Court Court of Appeal
Citation(s) [1982] EWCA Crim 2, [1982] 3 WLR 110, [1982] QB 1053, [1982] 2 All ER 689
Keywords
Dishonesty

R v Ghosh [1982] EWCA Crim 2 is an English criminal law case, dealing with dishonesty, deception and theft. It is relevant in prosecutions under, for example, the Theft Act 1968,[1] the Fraud Act 2006,[2] the Social Security Administration Act 1992 and the Immigration and Asylum Act.

Facts[edit]

Dr Ghosh was a surgeon. He was convicted of four offences under the Theft Act 1968 sections 20(2) and 15(1). During his work as a locum surgeon he obtained money by claiming fees for work that others had carried out, or that had been carried out under England's National Health Service. The jury found him guilty and he appealed on the basis that the trial judge had told the jury to use their common sense to determine whether the accused's conduct had been dishonest or not. Ghosh argued that the judge should have instructed the jury that dishonesty was about the accused’s state of mind (a subjective test) rather than the jury’s point of view (an objective test).

Judgment[edit]

The Court of Appeal found that the conviction was proper and dismissed Dr Ghosh's appeal because the original direction did not lead to an unsafe or unsound conviction.

However, the Court reformulated the test for dishonesty. It held that in future,

... a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest... If it was dishonest... then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.

Hence the test for dishonesty must be both subjective and objective. As a result, we have the 'Ghosh test', which jury must consider before reaching a verdict on dishonesty:

  1. Was the act one that an ordinary decent person (normally considered to be the ubiquitous ‘The man on the Clapham omnibus’) would consider to be dishonest (the objective test)? If so :
  2. Must the accused have realised that what he was doing was, by those standards, dishonest (the subjective test)?

Note that it is not essential for a person to admit that they acted in a way that they knew to be dishonest, it is probably enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was ‘wrong’.

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