Dishonesty in the criminal law

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Dishonesty in the criminal law
  • Partial definition of ‘dishonesty’ in theft cases
  • The general test for dishonesty in the criminal law
  • Ivey or Ghosh—which test for dishonesty applies?
  • An objective test and ECHR considerations
  • An objective test and market practice
  • An objective test and corporate criminal liability

Dishonesty in the criminal law

Dishonesty is a state of mind, which is relevant for the purposes of some criminal offences.

Dishonesty provides the principal form of mens rea for several offences that exist both under statute and at common law. Despite being an element of these offences, including theft and fraud, it is not fully defined by statute. While a partial definition is contained in the Theft Act 1968 (TA 1968) in relation to cases involving theft, that definition is not complete and does not apply to cases which fall outside of TA 1968, such as fraud offences. It is therefore a matter for the jury whether a defendant was dishonest or not. Where the prosecution is unable to satisfy a jury or fact-finder that a defendant was dishonest, and where that is an element of the offence, the defendant must be acquitted.

Partial definition of ‘dishonesty’ in theft cases

TA 1968, s 2 provides a partial definition of ‘dishonesty’ which applies in theft cases under TA 1968. It provides that the appropriation of property belonging to another is not ‘dishonest’:

  1. if they believe they have in law the right to deprive the victim of it

  2. if they believe the victim would have consented to the taking of the property if the victim had known of the circumstances, and

  3. if they take the property in the

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