R v Ghosh
Encyclopedia
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
, the Fraud Act 2006
, the Social Security Administration Act 1992
and the Immigration and Asylum Act.
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).
However, the Court reformulated the test for dishonesty. It held that in future,
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 :
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’.
English criminal law
English criminal law refers to the body of law in the jurisdiction of England and Wales which deals with crimes and their consequences. Criminal acts are considered offences against the whole of a community...
case, dealing with dishonesty
Dishonesty
Dishonesty is a word which, in common usage, may be defined as the act or to act without honesty. It is used to describe a lack of probity, cheating, lying or being deliberately deceptive or a lack in integrity, knavishness, perfidiosity, corruption or treacherousness...
, deception
Deception
Deception, beguilement, deceit, bluff, mystification, bad faith, and subterfuge are acts to propagate beliefs that are not true, or not the whole truth . Deception can involve dissimulation, propaganda, and sleight of hand. It can employ distraction, camouflage or concealment...
and theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
. It is relevant in prosecutions under, for example, the Theft Act 1968
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
, the Fraud Act 2006
Fraud Act 2006
The Fraud Act 2006 is an Act of the Parliament of the United Kingdom. It affects England and Wales and Northern Ireland. It was given Royal Assent on 8 November 2006, and came into effect on 15 January 2007.-Purpose:...
, the Social Security Administration Act 1992
Social Security Administration Act 1992
The Social Security Administration Act 1992 is the main piece of legislation dealing with the administration of social security benefits in the United Kingdom.- History :...
and the Immigration and Asylum Act.
Facts
Dr Ghosh was a surgeon. He was convicted of four offences under the Theft Act 1968Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
sections 20(2) and 15(1). During his work as a locum
Locum
Locum, short for the Latin phrase locum tenens , is a person who temporarily fulfills the duties of another. For example, a locum doctor is a doctor who works in the place of the regular doctor when that doctor is absent, or when a hospital/practice is short-staffed...
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
National Health Service (England)
The National Health Service or NHS is the publicly funded healthcare system in England. It is both the largest and oldest single-payer healthcare system in the world. It is able to function in the way that it does because it is primarily funded through the general taxation system, similar to how...
. 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
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,
Hence the test for dishonesty must be both subjective
Subjectivity
Subjectivity refers to the subject and his or her perspective, feelings, beliefs, and desires. In philosophy, the term is usually contrasted with objectivity.-Qualia:...
and objective
Objectivity (science)
Objectivity in science is a value that informs how science is practiced and how scientific truths are created. It is the idea that scientists, in attempting to uncover truths about the natural world, must aspire to eliminate personal biases, a priori commitments, emotional involvement, etc...
. As a result, we have ‘the Ghosh test', which jury must consider before reaching a verdict on dishonesty :
- Was the act one that an ordinary decent person (normally considered to be the ubiquitous ‘man on the top deck of a Clapham omnibusThe man on the Clapham omnibusThe man on the Clapham omnibus is a reasonably educated and intelligent but non-specialist person — a reasonable person, a hypothetical person against whom a defendant's conduct might be judged in an English law civil action for negligence. This is the standard of care comparable to that which...
’) would consider to be dishonest (the objective test)? If so : - 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’.
External links
- Full text of judgment from Bailii
- Ghosh Discussion The 'Ghosh' test of dishonesty - worldwide survey