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,[1] lying or being deliberately deceptive or a lack in integrity, knavishness, perfidiosity, corruption or treacherousness. It is used about charlatanism and quacks.
Dishonesty is the fundamental component of a majority of offences relating to the acquisition, conversion and disposal of property (tangible or intangible) defined in the criminal law such as fraud.
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Dishonesty in law is more complex and has been subject to a number of incomplete and unsatisfactory definitions. This is because such are the variety of circumstances in which dishonesty may occur that creating an over-arching definition is virtually impossible.
For many years, there were two views in English law. The first contention was that the definitions of dishonesty (such as those within the Theft Act 1968) described a course of action, whereas the second contention was that the definition described a state of mind. A clear test within the criminal law emerged from R v Ghosh (1982) 75 CR App. R. 154. The Court of Appeal held that dishonesty is an element of mens rea, clearly referring to a state of mind, and that overall, the test that must be applied is hybrid, but with a subjective bias which "looks into the mind" of the person concerned and establishes what he was thinking. The test is two-stage:
The decision of whether a particular action or set of actions is dishonest remains separate from the issue of moral justification. For example, when Robin Hood robbed the Sheriff of Nottingham he knew that he was, in effect, stealing from the Crown, was acting dishonestly and would have been properly convicted of robbery. His argument would have been that he was morally justified in acting in this way but in modern legal terms this could only have been brought to the court by way of mitigation of sentencing and would not have affected the inference of dishonesty.
Where dishonesty is an issue in civil cases, the trend in English Law is for only the actions to be tested objectively and not to apply any test as to the subjective state of mind of the actor. For a recent discussion of dishonesty as it applies in trust law specifically but also civil law more generally, see http://www.alastairhudson.com/trustslaw/DAMar07.pdf
The Theft Act 1968 contains a single definition for dishonesty which is intended to apply to all the substantive offences. Yet, rather than defining what dishonesty is, s2 describes what it is not, allowing a jury to take a flexible approach, thus:
s2(1). A person’s appropriation of property belonging to another is not to be regarded as dishonest:
(a) if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
s2(2). A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
For the purposes of the deception offences, dishonesty is a separate element to be proved. The fact that a defendant knowingly deceives the owner into parting with possession of property does not, of itself, prove the dishonesty. This distinguishes between "obtaining by a dishonest deception" and "dishonestly obtains by a deception".
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