Crime—Theft—Obtaining property by deception—Surgeon falsely claiming fees for surgical operations—Belief that consultancy fees due—Whether acting "dishonestly"—Whether test subjective— Theft Act 1968 (c. 60), ss. 1 (1), 15 (1), 22 (2)
The appellant, while a surgeon acting as a locum tenens consultant at a hospital, claimed fees for carrying out operations or fees payable for an anaesthetist in circumstances where either another surgeon had performed the operation or the operation had been carried out under the National Health Service. He was tried on an indictment containing one count alleging that he had attempted to procure the execution of a *1054 valuable security by deception, contrary to section 20 (2) of the Theft Act 1968 , and three counts alleging that he had obtained or attempted to obtain money by deception, contrary to section 15 (1) of the Act. The appellant denied that he had been dishonest and stated that the sums were legitimately payable to him for consultation fees. The judge directed the jury that it was for them to decide whether the appellant had been dishonest by applying contemporary standards of honesty and dishonesty in the context of all that they had heard in the case. The jury found the appellant guilty on all four counts.
On appeal against conviction:-
Held, dismissing the appeal, that "dishonestly" in section 1 of the Theft Act 1968 described the state of mind and not the conduct of the person accused and, therefore, the test of dishonesty was subjective but the standard of honesty to be applied was the standard of reasonable and honest men and not that of the accused; that, accordingly, the jury, in determining whether the appellant had acted dishonestly for the purposes of sections 15 (1) and 20 (2) of the Act, should have first considered whether the appellant had acted dishonestly by the standards of ordinary and honest people and, if they found that he had, then they had to consider whether the appellant himself must have realised that what he was doing was by those standards dishonest, and that, since on the jury's finding they would have convicted the appellant on such a direction, it was a proper case for applying the proviso to section 2 (1) of the Criminal Appeal Act 1968 (post, pp. 1063E-F, H - 1064B, D-E, H - 1065B).
Dictum in Reg. v. McIvor 1 W.L.R. 409 , 415, C.A. disapproved.
Reg. v. Scott A.C. 819 , H.L.(E.) and Reg. v. Landy 1 W.L.R. 355 , C.A. considered.
Reg. v. Feely Q.B. 530 , C.A. explained.
The following cases are referred to in the judgment:
Boggeln v. Williams 1 W.L.R. 873;  2 All E.R. 1061, D.C. .
Reg. v. Feely Q.B. 530;  2 W.L.R. 201;  1 All E.R. 341, C.A. .
Reg. v. Gilks 1 W.L.R. 1341;  3 All E.R. 280, C.A. .
Reg. v. Greenstein 1 W.L.R. 1353;  1 All E.R. 1, C.A. .
Reg. v. Landy 1 W.L.R. 355;  1 All E.R. 1172, C.A. .
Reg. v. McIvor 1 W.L.R. 409;  1 All E.R. 491, C.A. .
Reg. v. Royle 1 W.L.R. 1764;  1 All E.R. 1359, C.A. .
Reg. v. Scott A.C. 819;  3 W.L.R. 741;  3 All E.R. 1032 , H.L.(E.).
Reg. v. Waterfall 1 Q.B. 148;  3 W.L.R. 947;  3 All E.R. 1048, C.A. .
No additional cases were cited in argument.
APPEAL against conviction.
The appellant, Deb Baran Ghosh, was at all material times a surgeon acting as a locum tenens consultant at a hospital. On April 29, 1981, the appellant was convicted at St. Albans Crown Court (Judge Anwyl-Davies Q.C.) of attempting to procure the execution of a valuable security by *1055 deception contrary to section 20 (2) of the Theft Act 1968 , attempting to obtain property by deception, and two counts of obtaining property by deception contrary to section 15 (1) of the Theft Act 1968 . The appellant was fined a total of £1,000, with three months' imprisonment in default of payment. He appealed against conviction on the ground, inter alia, that the judge erred in directing the jury as to the test of dishonesty.
The facts are stated in the judgement of the court.
Robert Francis for the appellant. The judge in the court below had failed to direct the jury that under section 15 (4) of the Theft Act 1968 deception should be intentional or reckless. If there is an implied representation the jury must be directed as to the need for intention. On the facts of count one of the present case, the appellant had simply said that there had been complications and that was a possible unintentional misrepresentation. The issue of whether he had intended to misrepresent the position was one for the jury. The jury must decide the defendant's state of mind as to intent. The judge had not asked the jury to see whether the misrepresentation was an intentional one. The judge gave dangerous examples of what the jury might consider dishonesty to be. He failed to direct that dishonesty was a matter of the mind of the defendant. Juries ought to be directed that they should only convict of an offence of dishonesty if they are convinced the defendant believed he was acting dishonestly, or that they must look at the defendant's state of mind, and apply their own standards to the situation. One of these directions ought to have been given. The totally subjective approach has been criticised. But if the test is whether the defendant knew society at large would believe he was acting dishonestly then difficulties can be overcome. The objective test means that if the defendant has a state of mind which would be seen by society as dishonest then dishonesty is made out, regardless of the defendant's state of mind. Reg. v. Landy 1 W.L.R. 355 , illustrates the subjective approach. That case was distinguished in Reg. v. McIvor 1 W.L.R. 409 . Boggeln v. Williams 1 W.L.R. 873 sets out the subjective test of dishonesty at p. 740. Reg. v. Landy 1 W.L.R. 355 illustrates that dishonesty is an element of conspiracy to defraud.
Reg. v. Landy cannot be distinguished simply because it does not deal with the substantive offence. Reg. v. McIvor 1 W.L.R. 409 must be distinguished, because it deals with section 1 of the Theft Act 1968 , or it must be overruled as wrong. The term "dishonestly" is one which relates to the mind of the defendant, and judges ought not to define the term for jurors: see Reg. v. Feely Q.B. 530 , which does not deal with whether the jury must simply look at the defendant and decide whether he was dishonest. Reg. v. Feely is not inconsistent with the submission that the prosecution must prove that the defendant believed he was acting dishonestly. One point of having a reference to dishonesty in section 15 is that there may be obtainings which are honest. It is proper to direct a jury that the test of dishonesty is subjective: see Reg. v. Waterfall 1 Q.B. 148 . This case deals with the honesty of the representation, not the obtaining. A jury should be told that in determining whether there had been dishonesty, they should determine whether the *1056 defendant had an honest belief: see Reg. v. Royle 1 W.L.R. 1764 . Reg. v. Landy 1 W.L.R. 355 should be applied.