Dishonesty in Relation to The Theft Act S2

Section two of the theft act covers the mens rea of dishonestly. So what is the definition of dishonestly you ask? Well, there is not one, at least not within the act itself. This leaves the rather puzzling situation of finding a definition of some kind from case law.

The act does however specifically exclude there particular states of mind from being dishonest which is of some help. Namely if one believes they have a right in law, believed that from taking reasonable steps it could not be returned or had belief he would gain the others consent (Note: The use of others, not owners, as one can steal from a theft!).

If there is evidence of a belief as above which is covered by s2(1) of the theft act the prosecution must disprove this alleged belief beyond reasonable doubt. If the defendant does not allege to have been in one of these states of mind the ‘Ghosh’ test should be applied.

The Ghosh test consists of two parts; one subjective and one objective part. Firstly if the defendants actions would be considered dishonest by the ordinary and reasonable person (objective) and if the defendant appreciated that such was the case. It must be empathised here that it is not if the defendant considered his own actions dishonest (as clearly he wouldn’t) but if he considered that the honest and reasonable person would consider them dishonest.

For example in the case of R v Holden, other members of staff took tyres from work for personal gain so he did so himself given the supervisor’s permission. As it is irrelevant whether the belief was unreasonable from an outside person (if I worked for Aston Martin could I take a free car), it is purely if he honestly believed that his taking would not be seen as dishonest.

Another relevant case in R v Small who used parts of an abandoned car for spares. It was deemed the reason person would not see those as dishonest. It is perhaps also reasonable to suggest that even if all reasonable steps had been taken, the person who has theoretical procession (if one could say that) could not be found.

Finally s2(2) states that even a person may be dishonest even if willing to pay for the property. Clearly if one was to walk out of a supermarket with enough cash to pay for their stolen goods but chooses not to, then they are dishonest and cannot use a later wiliness to pay as a defence.