Jennie's Case and the Application of the Theft Act 1968

Q.1

This advise will concern the issues of the offence of theft, assault and self-defence, and offence of battery.

In regard to Jennie, the issue is to determine whether or not she has committed an act of theft through her act of appropriating £200 from Jasper’s house.

The Theft Act 1968, s1(1) defines theft as when a person dishonestly appropriate a property belonging to another with the intent to permanently deprive the other person of the property. Thus, for Jennies to be liable for theft, there must have been dishonesty while appropriating £200 from Jasper’s house that belongs to Jasper in order to permanently deprive Jasper of his £200.

Section 2(1)(b) will find appropriation of £200 dishonest if Jennie believed that Jasper would agree to her taking the money had Jasper they knew about it. In this case, Jennie thought Jasper might be willing to give her the £200 if he knew her circumstances. At the same time, she was not sure about this as she had failed to return the money she had previously borrowed money from him. This means that Jennie did not have the belief.

The Supreme Court in the case of (Ivey v Genting Casinos [2018] AC 391, 2018) laid down two levels of tests to determine dishonesty. Accordingly, the first level will require to subjectively consider the actual state of Jennie’s knowledge or belief as to the given facts. The question is whether or not Jennie held a genuine belief. It is to be determined given the evidence. The second level is whether Jennie’s conduct was honest or dishonest to be determined by the objective standards of ordinary decent people (The Crown Prosecution Service, 2019). Applying the first level test, the fact that Jennie was not sure whether Jasper would have willingly given the money given her circumstances. As such, she did not have a genuine belief. Applying the second level test, an ordinary person would not have regarding her appropriating the money as being an honest conduct.

Jennie appropriated the money by assuming the rights of Jasper (Section3(1)), but in a dishonest manner. The money belonged to Jasper, according to Section 5(1), as it was in Jasper’s house and in his control and he kept the money aside which he has set aside to buy Riley a birthday present (Ormerod, et al., 2011, p. 805). Jennie might put up the defence that she did not have a dishonest intention as she was sure that Jasper would discover the money missing and she resolved to tell him about it at the she took the money. Her intention not to repay arose with each passing day after she took the money. Based on this, it cannot be said that there was a theft of that money (The Crown Prosecution Service, 2019).

Jennie thought that she might have gotten away with the theft and she decided not to mention it to Jasper. This will amount to her intent to permanently depriving Jasper (according to Section 6(1)) of the money by treating the money as her own and disposing it off irrespective of Jasper’s right to the money (The Crown Prosecution Service, 2019). These circumstances amount to an “outright taking or disposal” where Jennie’s state of mind shows an intent to permanently deprive Jasper’s right (R v Vinall [2012] 1 Cr App R 29 , 2012). Hence, Jennie will be liable for an act of theft.

In regard to Jasper, the issue is to determine whether or not he has committed an act of assault and whether or not he has a right to claim self-defence for harming Pablo.

According to Section 39 of the Criminal Justice Act 1988, Jasper would be guilty of assaulting Pablo if he committed an act that has intentionally or recklessly caused Pablo to suffer or apprehend immediate unlawful violence (The Crown Prosecution Service , 2020). Jasper would be guilty of assault if he committed an act that indicated his intention to use unlawful violence against Pablo, for example if he had aimed a punch that failed to connect (Misalati [2017] EWCA 2226 , 2017). In the current case, knocking Pablo’s drink onto his lap was an accident. Jasper was polite with Pablo but eventually became annoyed with Pablo from his consistent questioning. Jasper’s shouting at Pablo and turning abruptly towards Pablo cannot be an act that could be shown as with intent or recklessness to cause Pablo unlawful violence. Moreover, this act of Jasper cannot be considered an act such as was in Misalati. However, Jasper did smash an empty glass over Pablo’s forehead that caused a large cutover Pablo’s right eye. In defence, Jasper can claim self-defence.

In this case, Pablo had already shoved Jasper hard in his chest. This caused fear in Jasper leading to the violence. Whether the force used by Jasper will constitute a reasonable force for self-defence is the question. The basic principle of self-defence is that a man may defend himself when attacked and may do what is reasonably necessary (Palmer v R, [1971] AC 814, 1971; R v McInnes (1971) 1 WLR 1600, 1971). Thus, if Jasper had the honest belief that the force he used in the moment of the attack was necessary, it is sufficient to prove that the force he used was necessary. In such case, he can avail self-defence. This was ruled on Palmer, where the defendant had used the force honestly and instinctively believing at the moment of unexpected anguish caused when attacked was necessary (Palmer v R, [1971] AC 814, 1971; Simms, 2015). There is no way a person attacked can weigh the exact measure of his action considered necessary by him at the moment of attacked (Palmer v R, [1971] AC 814, 1971; Simms, 2015).

The Criminal Justice and Immigration Act 2008, s76(3) provides that whether the degree of force used was reasonable would be determined by considering the circumstances as Jasper believed them to be. According to s76(4)(b), if Jasper is determined to have had the genuine belief, this must be relied upon while determining whether the force he used was reasonable. However, an act considered necessary cannot mean that the resulting action is reasonable. The extent to which the action was necessary will be considered (R v Clegg 1995 1 AC 482 HL, 1995). Jasper feared that Pablo would punch him in the given circumstances where Pablo had already used force against him. Accordingly, based on Palmer, he can claim self-defence. There was no mistake of fact that Jasper had if alleged that he was induced by voluntary intoxication (R v OGrady [1987] QB 995 , 1987). He was polite with Pablo, but became only annoyed due to Pablo’s act. Pablo was violent with him and that caused the fear in him.

In regard to Pablo, the issue is to determine whether or not Pablo has committed an act of battery against Jasper and against Akma.

Pablo would be liable for battery if his act of shoving Jasper in his chest was intentional or reckless and it inflicted upon Jasper unlawful personal violence (Ormerod, 2017, p. 220). This is supported by the ruling in (DPP v Little [1992] QB 645, 1992) where it was also held that if there is a battery, the defendant will be charged with ‘assault by beating’. The requirement is that the act must have been intentional or reckless application of unlawful force however slight the force is (The Crown Prosecution Service , 2020). In this case Pablo shoved Jasper in his chest. As such, this act will be dealt as battery (The Crown Prosecution Service , 2020). In this case, Pablo cannot have access to any defence, including self-defence. As seen in Jasper’s case, self-defence requires that Pablo should have been attacked by Jasper, which was not the case. As shown earlier, Jasper’s act was not reckless or with the intent to cause Pablo unlawful violence. This means Jasper did not attack or cause Pablo an apprehension of immediate unlawful violence.

If a person intentionally or recklessly assaults another person, it can cause actual bodily harm. The assault including battery occasioned or caused the bodily harm (The Crown Prosecution Service , 2020). A bodily harm is a hurt that interferes with the comfort of the victim, though it may not be permanent, but can be more than transient and trifling (R v Donovan [1934] 2 KB 498, 1934). Thus, applying these principles to the case of Akma, Pablo will be liable for causing harm to Akma. Though Pablo may claim that he did not intent to cause harm to Akma while he shoved Jasper in his chest, he was, however, reckless to do so as they were in a pub, a public place where people were around. His act of shoving Jasper of his chest recklessly resulted to causing harm to Akma.

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Bibliography

Ormerod, D., Smithl, J. C. & Hogan, B., 2011. Smith and Hogan's Criminal Law. s.l.:OUP Oxford.

The Crown Prosecution Service, 2019. Theft Act Offences. [Online] Available at: https://www.cps.gov.uk/legal-guidance/theft-act-offences [Accessed 28 05 2021].

Ivey v Genting Casinos [2018] AC 391 (2018).

R v Vinall [2012] 1 Cr App R 29 (2012).

Misalati [2017] EWCA 2226 (2017).

The Crown Prosecution Service , 2020. Offences against the Person, incorporating the Charging Standard. [Online] Available at: https://www.cps.gov.uk/legal-guidance/offences-against-person-incorporating-charging-standar [Accessed 28 05 2021].

Palmer v R, [1971] AC 814 (1971).

R v McInnes, 55 Cr App R 551 (n.d.).

R v McInnes (1971) 1 WLR 1600 (1971).

Simms, L., 2015. UK Self-Defence Law A Practical Guide to Understanding the Law of Defending Yourself. s.l.:Lulu.com.

R v Clegg 1995 1 AC 482 HL (1995).

R v OGrady [1987] QB 995 (1987).

Ormerod, J. C. a. D., 2017. Smith, Hogan, and Ormerod's Essentials of Criminal Law. s.l.:Oxford University Press.

DPP v Little [1992] QB 645 (1992).

R v Donovan [1934] 2 KB 498 (1934).

Q2

This essay evaluates the impact of the decisions in Ivey v Genting Casinos (UK) Ltd. trading as Crockfords [2017] UKSC 67 (Ives), and Booth & Anor v R [2020] EWCA Crim 575 (Booth) on the criminal law test for dishonesty. The essay first briefly discusses the test of dishonesty as it stood in the criminal law prior to these decisions, then discusses how these cases modify the test of dishonesty as it stood before critically evaluating the merits of the law as it stands today in comparison with what it was prior to Ives and Booth.

The test of dishonesty was explained to include both subjective and objective elements in R v Ghosh [1982] EWCA Crim 2 (Ghosh). In that case, the court had noted that the jury in assessing whether the defendant has acted dishonestly or not must first determine this according to the ordinary standards of reasonable and honest persons and then assess whether the defendant himself could have realised that he was doing a dishonest act by the standards of the reasonable and honest persons.

Between Ghosh and Ives, when the test of dishonesty underwent significant change, there were other cases where the courts have disregarded the Ghosh test. These may also be noted briefly to understand the way in which the test of dishonesty stood when Ives was decided. In Twinsectra v Yardley [2002] UKHL 12 (Twinsectra), the House of Lords affirmed the criminal law test for dishonesty as laid down in Ghosh. Thus, till Twinsectra, the test of dishonesty included both the objective and subjective elements that were included in the Ghosh test. However, a significant change in that position was articulated in Barlow Clowes v Eurotrust International Ltd [2005] UKPC 37, when the Privy Council decided that dishonesty is to be assessed by reference to an objective standard and not the subjective standard.

Therefore, the question becomes whether the defendant was conscious of those aspects of his conduct or actions that transgress the ordinary standards of honest behaviour (Laird, 2018). In Abou-Rahmah v Abacha [2006] EWCA Civ 1492 (CA), the Court of Appeal accepted the position that the test of dishonesty is predominantly objective but with a subjective element. Thus, if the defendant knows of the elements of his transaction that make it dishonest as per the ordinarily acceptable standards of honest behaviour, then the test of dishonesty is satisfied. In Starglade Properties Ltd v Roland Nash [2010] EWCA Civ 1314, the Court of Appeal held that the test of dishonesty involved an objective standard. These cases represent the position of law prior to the Ives decision of the Supreme Court.

The articulation of the test of dishonesty as involving only an objective standard was finally affirmed by the Supreme Court in Ives, which was confirmed in DPP v Patterson [2017] EWHC Admin 2820. As per Ives, the test of dishonesty as set out in Ghosh with two elements (subjective and objective), no longer represents the law of dishonesty so that Ghosh is no longer representative of the test of dishonesty. It must be mentioned that Ives too lays down a two part test including both subjective and objective elements, but describes these elements in ways that is different to Ghosh. This alternative two-stage test involves in the first part a subjective ascertaining of the actual state of the individual’s knowledge or belief as to the facts (without reference to whether the belief must be reasonable) and in the second part, assessing whether conduct was honest or dishonest by applying the (objective) standards of ordinary decent people (Ives, para 74). The court has emphasised in Ives that the subjective enquiry is not to whether the defendant D believed conduct was honest, but more precisely, what the defendant knew or believed to be the factual circumstances in which that conduct occurred.

The Ivy test is generally considered to have changed the test of dishonesty as well as aligned the civil and criminal law on the test of dishonesty (Ellison, 2020). In Booth, the Ivey test (which was hitherto considered to be obiter) was held to be binding on the Court of Appeal under the principle of stare decisis (Ellison, 2020).

The question is whether the Ivey test gives a wider scope for conviction than Ghosh, where the fact finder may allow conviction based on a shortfall in conduct even where there is no evidence of culpability. It may be admitted that the Ives test is wider in scope because the defendant’s own view of the matter, is not determinative because the prosecution does not have to show that he personally recognised conduct to be dishonest. The Ghosh test required the jury to answer both the questions in the affirmative being sure beyond reasonable doubt, with these questions being whether the conduct was dishonest by the lay objective standards and whether the defendant must have realised that ordinary honest people would think of his behaviour as honest. The Supreme Court in Ivey, held that the second test is not appropriate. There is no requirement that the defendant must appreciate that he has done something dishonest by those standards.

The purpose is that the law should not excuse those who make a mistake about contemporary standards of honesty. The effect of this approach in Ivy is that defendants will not be able to avoid criminal liability based on their own personal perception of dishonesty, which was not the case in the Ghosh test.

One of the positive impacts of the Ivy case can be said to be that aligned civil and the criminal law approaches to dishonesty; but on the contrary argument is made that this alignment disregards the long jurisprudence on this issue over centuries (Griffiths, 2020). It is argued that this blanket application of test of dishonesty in the same way in civil and criminal cases is inappropriate (Griffiths, 2020). Another more criticism of the Ivey decision is that it opens the door to more convictions “on the margins of criminality (Campbell-Tiech, 2019). While this criticism is valid because the test laid down in Ivy is too broad, the Ivy test itself is an improvement on the Ghosh test because the latter would allow the juries to acquit the defendant if his moral compass is less acute because the subjective limb of the Ghosh test would allow such acquittal (Baroness Hale of Richmond, 2019).

In Ghosh, the problem was that the court was to instruct the jury to assess whether dishonesty could be seen based on the contemporary standards of honesty and dishonesty, which could also mean that the defendant could very well be thought to not be dishonest (Baroness Hale of Richmond, 2019). This is because the person will assess whether his conduct is dishonest by the standards of the ordinary honest person and the question would hinge on the belief of the said person as to what the ordinary honest person believes to be dishonest. This is the subjective criteria which allowed a more narrow scope for determination of liability, which is not the case now after Ivey and Booth decisions.

It can be said that in some ways the Ivey and Booth decisions are improvements over the Ghosh test because the latter had the problems of benefitting the defendants with twisted or perverse standards of honesty while also placing too much reliance on their state of mind (Leggett, 2020). Furthermore, the Ghosh test also provided a somewhat confusing test for jurors. For criminal trials, the problem with the Ghosh test as that it could complicated the trials and result in inconsistency (Griew, 1985). By contrast, the Ivey test reduces the subjectivity of the Ghosh test and also reduces possibilities of defendants being acquitted because of their own state of mind. The test also unifies the fields of civil and criminal law. On the other hand, there is a problem that the concept of dishonesty may have become too broad which requires some further clarification by the courts. The Ivey test provides little scope for juries to give benefit of doubt to the defendant based on what their own perceptions of societal standards of dishonesty may be (Clough, 2018). The solution may be to avoid aligning civil and criminal dishonesty.

To conclude, the it would be justified to say that Ivey broadens the scope for holding defendants responsible or liable for criminal offences that include dishonesty as an ingredient because of the broad scope given in Ivey. In some ways, this is problematic because defendants may be held liable without culpability. On the other hand, the Ivey test is an improvement on Ghosh because the latter allowed too much reliance on the defendant’s state of mind and also reference to what the defendant would perceive the societal standards of dishonesty to be. The second limb of the Ghosh test was too broad and was rightly narrowed by the court. However, when applied to criminal cases, this would have the consequence of holding people liable even when culpability is not met leaving with a possible solution of seeing civil and criminal dishonesty as two separate concepts.

References

Abou-Rahmah v Abacha [2006] EWCA Civ 1492 (CA) (2006).

Barlow Clowes v Eurotrust International Ltd [2005] UKPC 37 (2005).

Baroness Hale of Richmond, 2019. Dishonesty. Common Law World Review, 48(1-2), pp. 5-14.

Booth & Anor v R [2020] EWCA Crim 575 (2020).

Campbell-Tiech, A., 2019. New Cases: Substantive law: Dishonesty: R. v Barton and another. Criminal Law Week, CLW/20/17/10.

Clough, J., 2018. Giving up the Ghosh: Ivey (Appellant) v Genting Casinos (UK) Ltd trading as Crockfords (Respondent). Crim Law, Volume 236 , p. 2.

DPP v Patterson [2017] EWHC Admin 2820 (2017).

Ellison, L., 2020. 'Oh Ghosh, that’s not dishonest!'A Note on the Test for Dishonesty.-R v David Barton and Rosemary Booth [2020] EWCA Crim 575.. [Online] Available at: https://www.wlv.ac.uk/media/departments/faculty-of-social-sciences/documents/wolverhampton-law-journal/edition-4/(2020)-4-WLJ-83.pdf

Griffiths, C., 2020. The honest cheat: a timely history of cheating and fraud following Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. Legal Studies, 40(2), pp. 252-268.

Leggett, Z., 2020. The New Test for Dishonesty in Criminal Law—Lessons From the Courts of Equity?. The Journal of Criminal Law, 84(1), pp. 37-48.

Laird, K., 2018. Case Comment: Dishonesty: Ivey v Genting Casinos UK Ltd (t/a Crockfords Club). Criminal Law Review , p. 395 .

R v Ghosh [1982] EWCA Crim 2 (1982).

Starglade Properties Ltd v Roland Nash [2010] EWCA Civ 1314 (2010).

Twinsectra v Yardley [2002] UKHL 12 (2002).