Facts
- Deb Baran Ghosh, a locum consultant at a hospital, made fraudulent claims for payment to the NHS, asserting he had performed a surgical operation which was actually carried out by someone else.
- Ghosh submitted claims to the NHS for payment for work not performed.
- He was prosecuted under Section 20(2) and Section 15(1) of the Theft Act 1968 for attempting to obtain funds and obtaining money through deception.
- Ghosh’s defense was that he believed he was owed the money, even if for other consultation services, and therefore did not act dishonestly.
Issues
- Whether Ghosh’s conduct constituted dishonesty under the Theft Act 1968.
- How dishonesty should be defined and assessed for the purposes of theft and deception offenses.
- Whether the defendant’s own belief in being owed the money negated dishonesty.
Decision
- The Court of Appeal dismissed Ghosh’s appeal.
- The court established a two-stage test for dishonesty (the "Ghosh test"):
- First, determine objectively whether the conduct would be considered dishonest by reasonable and honest people.
- Second, consider whether the defendant realised that reasonable and honest people would consider his conduct dishonest.
- The court held that even if a defendant believed he had a right to the money, if he knew his conduct was dishonest by objective standards, he would still be guilty.
- The Court clarified that the mental state (mens rea) of dishonesty was essential, and both objective and subjective considerations were required.
Legal Principles
- The "Ghosh test" required a jury to first apply an objective standard (reasonable, honest people) and then a subjective standard (defendant's awareness of dishonesty).
- Dishonesty under the Theft Act 1968 is not determined purely by the defendant's personal beliefs but also by whether their conduct departs from accepted societal norms.
- The subjective limb ensured that a person could not be found dishonest unless they realised their conduct was considered dishonest by those standards.
- The Ghosh test was later criticised for complexity and for allowing individuals with sincerely deviant views to evade liability.
- The Ghosh test was overruled in Ivey v Genting Casinos [2017] UKSC 67, which established that dishonesty should be assessed solely by the objective standard of ordinary decent people, considering the defendant's knowledge or belief about the facts.
Conclusion
R v Ghosh established the two-stage test for dishonesty in English law, requiring courts to assess both objective societal standards and the defendant’s own awareness of those standards. Although foundational for many years, the Ghosh test was subsequently criticised and ultimately replaced by a purely objective approach in Ivey v Genting Casinos, leaving Ghosh as a historical marker in the evolution of legal tests for dishonesty.