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2009-09-08 04:04:58
A study of public attitudes has cast doubt on how juries deal with assessing
whether a suspect has been dishonest, but what exactly is the Ghosh test?
A survey of more than 15,000 people has revealed some strange ideas about what
is considered dishonest.
It has led to calls for a re-examination of the "Ghosh test", which has been
helping juries make their decisions since 1982 - particularly in matters
involving theft.
The test contains two parts, explains Jo Theobald, senior tutor specialising in
criminal law at the College of Law, Guildford.
"It is a test that the jury have to apply in criminal trials where dishonesty
is an element of the offence, that the prosecution have to prove. The Theft Act
(1968) doesn't set out a definition of dishonesty. It only sets out some
specific situations where a person is considered not dishonest.
THE ANSWER
by ordinary people, and whether defendant realised that ordinary people thought
that way
"It is a two-part test. The first part is whether the jury think what the
defendant did was dishonest according to the ordinary standards of reasonable
and honest people. In criminal law this is an 'objective' test. If the answer
is no, that's the end of it. The defendant is not dishonest.
"If the jury answer the question yes, it was a dishonest thing, before they
convict the defendant they have to apply the second part. Did the defendant
realise that reasonable and honest people would regard what he did as
dishonest? The second part of the test is not of what the defendant personally
thought, according to his own criteria, but whether he realised what ordinary
and reasonable people thought."
In other words, if you used money from the church collection box to buy your
lunch, the jury would be asked if ordinary people regarded that to be
dishonest, and if so, did you know that ordinary people thought that way.
Slight problem
The "ordinary and reasonable person" is a creation of legal thinking like the
"man on the Clapham omnibus" of yore. The jury have to draw on their own life
experience.
And there's a slight problem in the matter of how you come to create an
"ordinary person". A sociologist might say there was no such thing. And with
offences like fraudulent insurance claims or illicit use of work property,
there could be widely diverging views.
"An objective test based on what the ordinary reasonable person thinks is quite
a difficult thing to apply in an increasingly diverse society," says Ms
Theobald.
The more out of touch the defendant is with ordinary standards of honesty in
the community, the more likely he should be acquitted under the Ghosh test, she
explains.
"This is referred to as raising a 'Robin Hood' defence ie if the defendant
thinks rightly or wrongly that the rest of the community would agree that it
was not dishonest to rob the rich to give to the poor, then he is not dishonest
under the Ghosh test."
If your community was like the TV series Shameless, in other words, there could
be real complexity in the dishonesty question.
But, in practice, the test still works.
"Although the Law Commission has expressed concerns about this, and other
aspects of the Ghosh test, it has also concluded that the test seems to work in
practice and does bring about appropriate outcomes," says Ms Theobald.
And, there's a curious phenomenon about the difference between our attitudes
and our behaviour.
"People do operate a kind of double standards - there are things that people,
when put on the spot, admit is dishonest - like avoiding VAT - they
nevertheless will admit to doing themselves."
The test applies in a wide number of criminal offences, Ms Theobald says,
including the Theft Act 1968, the Theft Act 1978 and the Fraud Act 2006. And
despite the objections a sociologist might have, the Law Commission has no
plans to change it.
And who was Ghosh? Deb Baran Ghosh was a surgeon convicted of obtaining
property by deception, namely fees to which he was not entitled. He appealed on
the basis of how the jury was directed.
The Court of Appeal's ruling has been helping juries ever since. Ghosh,
meanwhile, lost his appeal.