Dishonesty Flashcards
What is the first point which needs to be proved for the mens rea of theft?
when the defendant appropriated the property he must have done this dishonestly
What is a problem with the fact that, the first point which needs to be proved for the mens rea for theft is that D must have acted dishonest when he appropriated the property?
there is no deffiniton of what is meant by this
What does act s (2) of the Theft Act 1968 state?
that if all elements of theft are present then the motive of the defendant is not relevant; it does not matter that D did not gain anything from the theft
While the Theft Act 1968 does not define dishonestly what does it give?
3 situations in which Ds behaviour is not considered dishonest.
D has not acted dishonestly according to s.2(1( if he believes that
a)he has in law the right to deprive the other of it
b)if he would have the other’s consent if the other knew of the appropriation and the circumstances of it
c)the person to whom the property belongs cannot be discovered by taking reasonable steps
What section explains dishonesty, though does not define?
s 1 (2) Theft Act 1968
What section sets out the 3 situations whereby D is not regarded as being dishonest?
s.2(1)
It does not matter whether Ds belief is correct or reasonable, just that D had a genuine belief it was one of the what?
3 situations explained by s.2(1)
Which 2 cases have held that the fact that Ds belief is so unreasonable does not prevent him from relying on protection under the sections of 2 (1)?
Small
Holden
How can D still not be found guilty of theft as demonstrated by the cases of Small and Holden?
as the fact that the belief was an unreasonable one does not prevent the defendant from relying on these sections. If the jury decides that D did have a genuine belief, even though unreasonable, in one of the three situations then D must be found not guilty
In some situations D may be willing to pay for the property taken and may leave money. Is this theft?
this does not protect D from a conviction of theft
What section states that even if D is willing to pay for the property he has appropriated then he is still dishonest?
section 2(2)
What does section 2 (2) prevent, it states that even if D is willing to pay for the property he has appropriated then he is still dishonest?
it prevents D from taking what he likes, irregardless of the owner’s wishes and for example, sentimental value.
What is the case of Ghosh the leading case on?
on what is meant by dishonesty
What happened in the case of Ghosh?
D was a doctor and claimed fees for an operation he had not carried out. Argued he was not dishonest as he was owed the same amount in consultation fees. Trial judge directed jury to decide if D was dishonest. COA decided that the test for dishonesty has both an objective and subjective elect.
1) Was what was done dishonest according to the ordinary standards of reasonable and honest people?
2) Did D realise that what he was doing was dishonest by those standards?
Conviction upheld
D was a doctor and claimed fees for an operation he had not carried out. Argued he was not dishonest as he was owed the same amount in consultation fees. Trial judge directed jury to decide if D was dishonest. COA decided that the test for dishonesty has both an objective and subjective elect.
1) Was what was done dishonest according to the ordinary standards of reasonable and honest people?
2) Did D realise that what he was doing was dishonest by those standards?
Conviction upheld
What case is this?
Ghosh
