Judgment
The Court of Appeal found that the conviction was proper so dismissed the doctor's appeal as the original direction did not lead to an unsafe or unsound conviction.
The Court began by stating (its most senior member, the Chief Justice) "The law, on this branch of the Theft Act 1968 is in a complicated state and we embark upon an examination of the authorities with great diffidence." This court reformulated the test for dishonesty. It held that,
... a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest ... If it was dishonest ... then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.
Hence the test for dishonesty was subjective and objective. As a result, the 'Ghosh test', which the jury was required to 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 Clapham omnibus') 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)? [This part of the test was overruled by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67]
Note that it was not essential for a person to admit that they acted in a way that they knew to be dishonest; it was probably enough that they knew others would think their behaviour was dishonest, or that they thought that what they were doing was wrong.
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Ivey v Genting Casinos (UK) Ltd t/a Crockfords[2017] UKSC 67 is a UK Supreme Court case that reconsidered the test used for determining dishonesty.
