[75] DISHONESTY AND THE JURY: A CASE STUDY IN THE MORAL CONTENT OF LAW

(Philosophy and Practice, A Phillips Griffiths ed Cambridge University Press pp 75-96) Royal Institute of Philosophy Lecture Series 18. Supplement to Philosophy 1984)



RICHARD TUR



"It must be considered that a man who only does what everyone of the society to which he belongs would do is not a dishonest man". [1 Boswell's Life of Johnson Oxford Edition (London, 1904) Vol. 1, 456]



"A lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from enquiry the most fundamental element in a rational and humane criminal code" [2 Per Dixon J., Thomas (1937) 59 C.L.R. 279, 309]





1. Introduction



Section 1(1) of the Theft Act, 1968 enacts that 'a person is guilty of theft if he dishonestly appropriates property of another with the intention of permanently depriving the other of it...'. The concept of dishonesty, which also features in the definition of a number of deception offences, has been the focus of a sustained controversy between leading academic criminal lawyers and the Court of Appeal. The Theft Act, 1968 was based largely on the work of the Criminal Law Revision Committee and it established a new criminal code, provided a completely fresh start, defined theft (and related offences) in simple and clear language and got rid of 'the immensely, and unnecessarily complicated structure, full of difficult distinctions of a purely technical character and bristling with traps for the judges, magistrates, prosecutors and police . . .' [3 J. C. Smith, The Law of Theft, 4th edn (London, 1979) para. 2 (hereinafter Theft)] which had emerged over centuries.



The Committee devoted little of its report to dishonesty but regarded it as 'very importan' and 'a vital element in the offence' [4 Eighth Report of the Criminal Law Revision Committee, Cmnd 2977, 'Theft and Related Offences' para. 39] . 'Dishonestly' was preferred to 'fraudulently and without a claim of right made in good faith', the parallel phrase in the earlier law, I because 'dishonesty' is something which laymen can easily recognize [76] whereas 'fraud' may involve technicalities which might have to be explained by a lawyer. The Committee thought that 'dishonesty' could stand without definition and, indeed, some members would have preferred not to define it at all. However, the Committee thought it appropriate to preserve two well-established rules of law. First, that theft is inconsistent with a claim of right made in good faith. Secondly, that a finder of property cannot be guilty of theft where he believes that the owner cannot be found by taking reasonable steps. Consequently the Theft Act, 1968 provides by section 2(1) that a person's appropriation of property of another is not to be regarded as dishonest if he appropriates the property (a) in the belief that he has in law the right to deprive the other of it; (b) in the belief that he would have had the other's consent if the other knew of the appropriation and its circumstances; and (c) in the belief that the owner cannot be discovered by taking reasonable steps. Section 1(2) provides that an appropriation may constitute theft even if it is not made with a view to gain and section 2(2) states that an appropriation may be dishonest notwithstanding a willingness to pay for the property. Clearly the Act leaves dishonesty largely undefined and, since the sections mentioned refer only to theft, dishonestly as it relates to deception offences is left wholly undefined.



This approach did not meet with universal approval even before the Theft Act passed into law. Sir Brian McKenna, writing in 1966 [5 'The Undefined Adverb in Criminal Statutes' [1966] Crim.L.R. 548, 552], remarked that there would be the same objections to the undefined adverb 'dishonestly' as already obtained regarding the undefined adverb 'fraudulently'. He welcomed the partial definition of dishonesty but asked 'why does it stop short of certainty by leaving it to the jury to decide whether any other excuses will be permitted?'. Either 'fraudulently' then and 'dishonestly' now added nothing to the phrase 'without a claim of right' in which case the partial definition in section 2(1) could be regarded as exhaustive or the term embodied more than the phrase in which case the extra content could be 'brought into the open and stated expressly' thereby producing an exhaustive definition. Since no exhaustive definition is provided the jury will have 'to apply their own standards of honesty' with the result that different decisions may occur on like facts, e.g. an employee's use of his employer's money with an expectation of returning it [Williams and Wife [1953] 1 Q.B. 66]or a stockbroker's use of A's money to finance B's purchase, expecting to replace it in the ordinary course of business [7 Banyard [1958} Crim L R 419]. [77] The learned author therefore concluded that 'it is surely better that these questions should be decided not by juries but by Parliament'.



All this prefigures a view, forcefully and repeatedly expressed by leading academic criminal lawyers such as Professors Elliott, Glanville Williams, Griew and Smith which is informed by two propositions that they all share; first, a Benthamite conviction the certainty is 'the grand utility of the law' [8 Cited in Mary P. Mack Jeremy Bentham. An Odyssey of Ideas, 1748-1 792 (London, 1962), 59]; secondly, a contempt for the jury as profound as Bentham's own. He thought its influence 'uncertain, unconjectured, feeble, broken, discordant; it is the stability of a house divided against itself. It is different in different places; you can never be sure of it two days together. He who is saved by one jury may be sacrificed by another; the hero of today may be the victim of tomorrow' [9 Box 35, p. 6, cited Mack, Jeremy Bentham, 422]. Consequently all four insist that dishonesty ought to be exhaustively defined by law and that means, failing legislation, by the judges. The judges themselves, however, have held that dishonesty is a question of fact for the jury [10 Feely [1973] Q.B. 530; Ghosh [1982] Q.B. 1053]. Of course there are differences of detail amongst these commentators as to the precise definition of dishonesty and, indeed, Professor Elliott would go so far as to dispense with dishonesty altogether in the definition of theft [11 'Dishonesty in Theft; A Dispensable Concept' [1982] Crim.L.R. 395]. Again, moral fervour varies. Professor Glanville Williams especially criticizes 'the poor level of self-discipline now prevailing' and the 'lax notions about the right of property' [12 Glanville Williams, Textbook of Criminal Law, 2nd edn (London, 1983) 726 (hereinafter G.W.) 77]. Thus for some of the commentators it is not merely that jury decisions may be capricious but also a commitment, in the name of law, to a morality higher than that of ordinary decent people which sustains the opposition to dishonesty remaining a question of fact for the ]ury.



In choosing the title for today's lecture I was conscious that it is not original. It is the same as that adopted by Professor Griew for his inaugural lectpre at Leicester University about ten years ago. There the similarity ends becau$e`I seek (a) to defend the institution of the jury; (b) to maintain that dishonesty should continue to be an element in the definition of theft; and (c) to support the Court of Appeal in its continued resolve that dishonesty should be a question of fact for the jury and not a question of law for the judge. Consequently what I have to say runs counter to the orthodox mainstream of current academic criminal law.



[78] II. The Jury -- For and Against



As to the jury, Professor Griew condemns it as the 'biggest friend of the criminal classes' [13 Dishonesty and the Jury (Leicester, 1974), 7]; he remarks that 'it cannot be rational to trust . . . twelve strangers of unknown quality' [14 Op. cit. 20] because that would exhibit 'a faith in their competence that is both blind and gratuitous'[15 Op. cit. 18]. He concludes that 'we may not be able to abolish the jury, but at least we should keep it in its place' [16 i60p. cit. 24]. A contrary view is expressed by Lord Keith of Kinkel in Stonehouse; 'a lawyer may think that the results of applying the law correctly to a certain factual situation is perfectly clear, but nevertheless the evidence may give rise to nuances which he has not observed but which are apparent to the collective mind of a lay jury' [17 [1977] 2 All E.R. 909, 940-941]. Again, Professor Zander subjected the opinion of Sir Robert Mark, sometime Commissioner of the Metropolitan Police, that juries acquitted too many accused persons to quite devastating criticism [18 Sir Robert Mark, 'Minority Verdict', in Mark, Policing a Perplexed Society (London, 1977), 53-73. Michael Zander, 'Why I Disagree with Sir Robert Mark', Police (April 1974), 16].





III. Dishonesty in the Definition of Theft



As to dishonesty remaining part of the definition of theft, Professor Elliott advocates that 'the cleanest way to avoid the risks [of 'uncertainty and capriciousness'] is to remove the word "dishonestly" from the definition of theft' [19 [1982] Crim.L.R. 395, 404]. But in Feely, Lawton L.J. observed that 'we find it impossible to accept that a conviction for stealing whether it be called larceny or theft can reveal no moral obloquy. A man so convicted would have difficulty in persuading his friends and neighbours that his reputation had not been gravely damaged. He would be bound to be lowered in the estimation of right thinking people' [20 1973 QB 530, 541]. Thus the criminal law should not be astute to extend criminal liability to conduct which would not be condemned as dishonest according to the standards of conventional morality.



In Feely the manager of a betting shop had taken 30 from the till for his own purposes, contrary to his employer's instructions. He had a right of set-off for this amount in respect of money owed to him by his employer. The trial judge directed the jury that 'even if he were [79] prepared to pay back the following day and even if he were a millionaire. . . makes no defence to this offence, if someone does something deliberately knowing that his employers are not willing to tolerate it is that not dishonest?' [21 [1973] Q.B. 530, 536 - 537]. The Court of Appeal emphatically rejected this attempt by the trial judge to define dishonesty as a matter of law: 'We do not agree that judges should decide what "dishonesty" means. . . Jurors, when deciding whether an appropriation was dishonest can be reasonably expected to, and should, apply the current standards of ordinary decent people. In their own lives they have to decide what is and what is not dishonest. We see no reason why, when in the jury box, they should require the help of a judge to tell them what amounts to dishonesty'[22 [1973] Q.B. 530, 537-538]. The Court of Appeal therefore quashed the conviction, not because the appellant had not been dishonest but because the question of his dishonesty had not been put to the jury and it was at least possible that, had the question been put, the jury would not have regarded the conduct as dishonest. 'It is', the Court of Appeal observed, 'possible to imagine a case of taking by an employee in breach of instructions to which no one would, or could reasonably, attach moral obloquy... [and] a taking to which no moral obloquy can reasonably attach is not within the concept of stealing either at common law or under the Theft Act, 1968 . . . ' [23 23[1973] Q.B. 530, 539]. Of course, 'people who take money from tills and the like without permission are usually thieves; but if they do not admit that they are by pleading guilty, it is for the jury, not the judge, to decide whether they have acted dishonestly . . .' [24 [1973] Q.B. 530, 541].



Feely is unpopular with the academics. Professor Glanville Williams sees it as the point at which 'the rot commenced' [25 G.W., 725] and Professor Elliott states baldly that the Court of Appeal was 'quite simply wrong'[26 [1982] Crim.L.R. 395, 399]. Tberefore these commentators advocate that conduct to which no moral obloquy could reasonably attach, judged by the standards of ordinary decent people, should none the less be stigmatized as theft. To see that this is so it is convenient to translate the definitional requirement of dishonesty into a 'defence' of honesty. Thus any appropriation of property of another with the intention permanently to deprive is theft unless the conduct is honest. As the law stands honesty is partially at large in that the term includes not only belief in legal right, belief in consent and belief that the owner cannot be found but also an undefined residue which is to be [80] determined pragmatically by the jury. Thus, as the law stands, the jury always has the opportunity to acquit on a charge of theft if it does not regard the conduct of the accused as dishonest. Hobart J. Observed in 1609 that '.. . all laws admit certain cases of just excuse' [27 Moore v Hussey 1609 Hob. 93, 96]. I add that what may constitute a just excuse is so context-dependent that exhaustive definition in advance must necessarily limit the range of circumstances which might excuse. We simply cannot decide such borderline issues, abstractly, in advance and therefore we cannot legislate for them.



Professor Elliott's proposal is, in effect, the addition of one more excusing condition, namely that the appropriation is 'not detrimental to the interests of the other in a significant practical way'[28 [1982l Crim.L.R. 395, 410] together with the abolition of any further undefined residue. Thus theft would be wholly and exhaustively defined by the law and the jury's role of deliberating upon the honesty or dishonesty of the conduct would vanish. Consequently the opportunity to find that the circumstances gave rise to a just excuse would also vanish. Thus even if a jury believed, and reasonably believed, that no moral obloquy could attach to an appropriation it would, were Professor Elliott's proposal implemented, be unable to acquit unless the conduct fell foursquare within one of his heads of honesty, namely, a claim of right, a belief in consent, a belief that the owner could not be identified, and insignificance. The inevitable consequence of Professor Elliott's proposal and, indeed, of any proposed exhaustive definition of dishonesty, is that some accused will be convicted even where a jury considers them morally blameless.



The idea that the law may be presented as a body of rules exhaustively determining all conditions of liability and all excusing conditions is frequently, though erroneously, associated with legal positivism. Professors Simpson and Dworkin have attacked what they what they take to be the all-or-nothing model of rules espoused by Professor Hart in particular and by legal positivism in general [29 A. W. B. Simpson, 'The Common Law and Legal Theory', in Oxford Essays in Jurisprudence, Second Series, Simpson (ed.) (Oxford 1973), 76-99; Ronald M. Dworkin, 'The Model of Rules', University of Chicago Law Review 14, (1967), 35]. Professor Simpson insists that the common law is simply not like that and that the positivist account reveals less the nature of law and more the rational expositor's aspiration to present the law as if it were a coherent and comprehensive code. Professor Dworkin challenges this model of rules on the grounds that there are principles beyond the rules which qualify the application of the rules to fact [81]situations as they occur. Thus even if all the conditions stipulated in a legal rule obtained in fact the normal legal consequences may be defeated by the existence of some additional circumstance not referred to in the rule. Thus, to use Professor Dworkin's own illustration, a will, valid according to the definition contained in the relevant legal rules, may be deprived of effect by the circumstance that the beneficiary murdered the testator. Thus the principle that no man should profit from his own wrong qualifies and limits the scope of the rule. Further, it is by no means clear that it is possible for anyone, other, perhaps, than Professor Dworkin's imaginary, super-human judge, Hercules, exhaustively to list all the potentially defeasing conditions. As Professor MacCormick observes, 'even if we were to write out all the statutory rules, including in them all the exceptions hitherto imposed by the courts. ..we could not be confident that we had succeeded in listing the sufficient conditions for the validity of a determination...'[30 (1974) 90 L.Q.R. 102, 125]. If this is true, the positivist aspiration (as presented by Professors Simpson and Dworkin) is incapable of practical realization simply because the just excuse or defeasing conditions which qualify all laws are incapable of exhaustive definition in advance of particular concrete applications.



Whatever the independent merits of such observations (and they are considerable) it is clear that Professor Hart did not commit the offences charged. He insisted that 'we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of application, a fresh choiee between open alternatives'[31 H. L. A. Hart, The Concept of Law (Oxford, 1961), 125 (hereinafter Concept)]. This is in part due to our relative indeterminacy of aim and our relative ignorance of fact and partly because of the limits of language which is always more abstract and general than the concrete and particular facts to which it applies. Professor Unger catches the point exactly: 'Language is no longer credited with the fixidity of categories and the transparent representation of the world which would make formalism plausible in legal reasoning...' [32 R. M. Unger, Law in Modern Society (New York, 1976), 196]. Professor Hart occupied himself with the 'open-texture' and 'problems of the penumbra' and remarked that 'here [within the framework of relatively well settled law], if anywhere we live among uncertainties between which we have to choose, and. . . the existing law imposes only limits on our choice and not the choice itself' [33 'Positivism and the Separation of Law and Morals', Harvard Law Review 71 (1957-1958), 593, 629]. [82]

Professor Hart had no doubt that rules are not all-or-nothing in character and he insisted that 'even a rule that ends with the word "unless..." is still a rule' [34 Hart, Concept, 136]. But clearly a rule that ends 'unless...' does not 'even purport to set out conditions that make its application necessary' [35 Dworkin, University of Chicago Law Review 14 (1967), 26]. As Professor MacCormick says, we should 'avoid claiming that our formulae can or should be stated with the logician's precision as an "if and only if" rule laying down necessary and sufficient conditions'[36 (1974) 90 L.Q.R. 102, 123]. Consequently the formulations to which legal science can aspire are necessarily defeasible in the face of ineffable circumstance. The content of the formulations produced by the legal scientist can only be more detailed and precise than the data they purport to describe by virtue of invention or misrepresentation.



Howsoever innocent Professor Hart may be of the charges it does appear that the professors who oppose the Court of Appeal's approach to dishonesty are guilty of such 'naive positivism'. They believe that it is possible to establish an exhaustive criminal code which forecloses upon new choices at the point of application. Indeed, some of their number participate industriously in an unofficial criminal law codification 'commission'[37 [1981] Crim.L.R. 281]. Of course if one believes, with Bentham, that a science of legislation is possible, then one may seek to devise and promulgate an exhaustive criminal code determining, in perpetuity, all conditions of culpability and exculpation. From such a perspective, the common sense of juries and the intuitions of judges are obstacles to be eliminated and not data to be

accommodated. The codefier presupposes rationally defensible values which, owing to their rationality and the authority of reason, may legitimately be imposed upon society from above by the legislator or from outside by the academic. Thus the current standards of ordinary decent people may be dismissed as 'lax' [38 G.W., 726] and the judgments of the Court of Appeal dismissed as 'wrong'[39 [1982] Cnm.L.R. 395, 399]. There is, however, no agreement that values are rationally determinable and the moral basis is simply assumed by the rational codefier just as Mill's famous 'proof' begged the central question in issue [40 Mill, Utilitarianism (London, 1863) Ch. IV]. Indeed, one might turn Mill's 'proof' on its head whereby Mill was 'right in saying that ethical theory must contain one principle that cannot be proved, for to prove it would involve deriving it from some more basic principle, [83] which latter would then be part of the theory' [ [41 Everett W. Hall, 'The "Proof" of Utility in Bentham and Mill', Ethics 60 (1949); see, too, Glover, 'Moral Disagreements' in Causing Death and Saving Lives (Harmondsworth, 1977), 23-26]. Given the Benthamite predeliction, it would be no surprise if, like Bentham, the professors on their eighty-second birthdays were 'still codifying like any dragon' [42 Mack, Jeremy Bentham, 4; Works, Bowring (ed) (London, 1838), XI, 33].



IV. Judge versus Jury



As to the question whether the issue of an accused's dishonesty ought to be a matter for the jury or for judges, Professor Smith submits that 'standards of honesty should be laid down by law, not left to the vagaries of jury decisions'[43 Smith, Theft, para. 116]. To this there are several responses. First, certainty and predictability are not the only desidera for a system of criminal law. Justice is also desirable. In this context 'justice' requires that decisions be tailored to all the circumstances of the particular case. Even if one insists that justice involves treating like cases alike, it follows that unlike cases should be treated differently. General rules of law, no matter how comprehensive and detailed they aspire to be, inevitably abstract from the particularity and concreteness of individual cases with the result that differences between cases may be smoothed over and therefore ignored. Thus both generality and certainty oppose justice which requires that all the circumstances of the case be taken into consideration. As Lord Devlin observes, 'When . . . a man is on trial for his liberty, predictability is quite unimportant. What is wanted is a decision on the merits' [44 Trial by Jury, revised edn (London, 1966), 157].



Secondly, albeit ad hominem, Professor Smith is not himself noted for his faith in judges. Thus he writes, 'the House of Lords has a dismal record in criminal cases. .. can we really afford the House of Lords as an appellate court?' [45 45[1981] Crim.L.R. 393]. This observation is not without some justification and had the situation since the Theft Act, 1968 included dishonesty in the statutory definition of theft been that judges had 'been busily fleshing out a legal concept which the draughtsman had drawn in outline only'[46 Elliott, [ 1982] Crim. L. R. 395, 395], the vagaries apprehended by Professor Smith may well have been avoided only at the price of a harsh and inappropriate consistency; that is, by the imposition of an extrava-[84]gant judicial conception of honesty bearing little or no relationship to the 'current standards of ordinary decent people' [47 47Feely [1973] Q.B. 530, 538] and, purporting exhaustively to define dishonesty, denying flexibility and therefore just excuse in the face of circumstances not anticipated in the framing of the definition. There is no obvious advantage in avoiding 'vagaries' at the price of consistency for its own sake, just as there is little point in our all being treated equally if we are all treated like dogs! Alternatively, had judges been fleshing out a legal concept given in outline only in the legislation, the vagaries of jury decisions might simply have been replaced by the vagaries of judicial decisions. Professor Smith would certainly acknowledge that different people have different views as to 'dishonesty', and that judges

have no special insight as to its meaning [48 Smith and Hogan, Criminal Law, 5th edn (London, 1983), 491: Theft, para. 116]. It is no coincidence that Bentham himself waxed indignant on 'Judge and Co.' 'It is the judges. . . that makes the common law. Do you know how they make it ? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then you beat him for it. This is the way you make laws for your dog; and

this is the way judges make law for you and me' [49 Works, Bowring (ed.), V, 235]. Consequently judge-made law is uncertain; 'wherever jurisprudential law reigns certainty is impossible; it has no ground to stand on. Jurisprudential law is sham law; to ascribe stability to this creature of the imagination is to ascribe stability to a shadow. Statute law every

where has a tenor a determinate collection of words; there is the will, and there the expression of it' [50 Works, Bowring (ed.), VII, 309].



Thirdly, and this is the crux of my argument, treating dishonesty as a question of law for judges rather than as a question of fact for the jury breaks the nexus between current morality and the criminal law and thereby destroys 'the protection against laws which the ordinary man may regard as harsh and oppressive' [51 Lord Devlin, Trial by Jury, 160]. Indeed, 'it must be considered', observed Johnson, 'that a man who only does what everyone of the society to which he belongs would do, is not a dishonest man' [52 Boswell's Life of Johnson, Vol 1, 456]. But if we do seek to ensure that no man be convicted of crime and stigmatized as a thief where he only does that which other men of his society would do, the decision as to the nature of dishonesty should lie with a jury of ordinary people and depend upon their agreement rather than be vested in a single judge [85] whose own morality may be higher and might legitimately be expected to be higher than that of the ordinary man and whose solitary appreciation of conventional morality is unlikely to be more or even as authentic as that of the unanimous or nearly unanimous view of twelve, ordinary people. As Sir William Holdsworth wisely

observed of the jury system, 'It tends to make the law intelligible by keeping it in touch with the common facts of life' [53 Holdsworth, A History of English Law, 7th edn (London, 1956), Vol. 1, 349].



Of course, if dishonesty were to be a question of law for the judges rather than a question of fact for the jury, then it would also be a question of legal science for the professor of law. It is, however, by no means clear that professors of law are necessarily more in touch with conventional morality than are judges and it is at least possible that some professors of law may be as remote from conventional morality as judges are and may have as little sympathy with or confidence in the morality of the ordinary man. Professor Elliott, for example, is concerned that a jury might share a defendant's opinion

that it is not dishonest for a punter knowingly to benefit from a bookmaker's mistake on the basis that bookmakers, unlike grocers, are fair game [54 [1982] Crim.L.R. 395, 399; Gilks [1972] 3 All E.R. 280, 283]. Yet Professor Elliott also believes that 'the conviction as thieves of people who take little loans of money for temporary purposes is unedifying' [55 [1982] Crim. L. R. 395, 406] and he therefore proposes as compensation for the removal of dishonesty from the definition of theft a limiting condition such that it is not theft where an 'appropriation of property belonging to another is not detrimental to the interests of the other in a significant practical way' [56 [1982] Crim.L.R. 395, 410]. This, however, appears apt to exclude not only the borrower but also the petty pilferer. Professor Smith, however, though equally scandalized by the proposition that bookmakers might be fair game, takes a more stringent line on insignificance observing that ' a helief has sometimes prevailed in the army and other large organizations that it is "all right" to take small items

of property belonging to the organization... [and that] it would be preferable if the judge could direct the jury that the pilferer was acting dishonestly'[57 Smith, Theft, para. 117].



Professor Glanville Williams adopts perhaps the most stringent position of all; current standards are 'lax'[58 G.W., 726]; the jury will not be more 'decent' or 'honest' than ordinary people and unanimity tends in the direction of a standard lower than average. In any event, honesty, [86] the moral value underpinning the Theft Acts, has nothing to do with current standards. 'Honesty means three things, all of them largely independent of prevailing mores: (a) respect for property rights; (b) refraining from deception, at any rate where this would cause loss to another; (c) keeping a promise, at any rate where the promisee has supplied consideration for the promise or will suffer loss if it is not kept. The most important of these meanings for the law of theft is the first'. Professor Glanville Williams takes the view that 'what must be found is a definition of dishonesty (outside the specific situations mentioned in section 2) that will not depend exclusively on general

opinion....' [59 G.W. 730]. For Professor Glanville Williams this definition is 'disregard for property rights' but he says of Professor Elliott's proposal couched in terms of insignificance that 'we can at least be certain that almost any definition making the position independent of current social attitudes would be better than the rule in Ghosh' [60 G.W. 730]. If the people are Professor Glanville William's Caesar, then, like Bentham, he appeals not to Caesar as he is but Caesar as he ought to be [6! Works, Bowring (ed.), X, 73: "The People is my Caesar. I appeal from the present Caesar to Caesar better informed'].



Since the learned professors do not agree among themselves what dishonesty is, it is unlikely that making the issue a question of law whereby judicial or legislative decisions might be informed by the fruits of academic insight, deliberation and theorizing would eliminate the vagaries which the academics attribute to jury decisions. What is more likely is that the issue of dishonesty which is currently a matter for the robust common sense of ordinary people, would become progressively more intellectualized. Sir William Holdsworth caught the sense of this perfectly: 'If a clever man is left to decide by himself ... he is usually not content to decide each case as it arises. He constructs theories for the decision of analogous cases. These

theories are discussed, doubted or developed by other clever men ... The interest is apt to centre, not in the dry task of deciding the case . . . but rather in the construction of new theories, the reconciliation of conflicting cases, the demolition of criticism of older views. The result is a series of carefully constructed, and periodically considered rules which merely retard the attainment of a conclusion without assisting in its formation. It is only the philosopher, or possibly, the professor of general jurisprudence, who can pursue indefinitely, these interesting processes. Rules of law must struggle for existence in the strong air of practical life. Rules which are so refined that they bear but a small relation to the world of sense will [87]

sooner or later be swept away. Sooner, if, like the criminal law or the commercial law, they touch nearly men's habits and conduct; later, if, like the law of real property, they affect a smaller class, and affect them less nearly. The jury system has for some hundreds of years been constantly bringing the rules of law to the touchstone of contemporary common sense' [62 Holdsworth, op. cit., Vol. 1, 349].



V. Dishonesty Beyond Theft



The issue is, however, further complicated by the inclusion of dishonesty as a defining element in a range of additional offences involving deception. These include obtaining property, obtaining a pecuniary advantage, procuring the execution of a valuable security, obtaining services, securing the remission of a liability, inducing a creditor to wait for or forgo payment, and obtaining an exemption from or abatement of liability. The partial and negative definition of dishonesty and the qualifications as to gain or readiness to pay apply only to theft and consequently the meaning of dishonesty for all these offences is entirely at large. Some commentators have seen in this circumstance yet another defect in the law. Professor Elliott observes that the relation between dishonesty in theft and dishonesty in the other offences was 'obscure from the beginning but has become more obscure'[63[1982] Crim.L.R. 395, 398] and that this increased obscurity flows from the judge's determination to treat dishonesty as a question of fact for the jury thereby 'making a rod for their own backs' [64 [l982] Crim.L.R. 395, 395]. But quite what the objection is, is itself obscure. Of course, if dishonesty were to be a question of law it would be possible to impose consistency right across the board but it is not obvious that dishonesty should have the same meaning in the wide range of circumstances now under consideration. It may well be that a claim of right always negatives dishonesty in theft but may not always negative dishonesty in deception or excuse forgery or blackmail. Thus one might wish to say that where a man believing himself to have a legal right to property merely takes possession of it that man is not dishonest but if, rather than merely taking it, he deceives another into parting with it or obtains it by means of forgery or blackmail, the moral justifiability of his conduct is an open question. Thus, where force or fraud occur, honesty is less plausibly to be found. As to blackmail one might conclude that even a claim of right does not justify [88]

demands with menaces. The situation with deception and forgery is less clear. Perhaps both should be treated analogously with theft whereby a claim of right would always be a complete justification. Perhaps they both should be treated like blackmail whereby a claim of right would never be a justification. Arguably they might occupy a middle position whereby a claim of right might be a justification for obtaining by deception or even for forgery in some circumstances but not in others.



This raises the apparently paradoxical spectre of an honest deception but it is, perhaps, not absurd that in some circumstances deception could be a morally legitimate strategy [65 The notion of honest deception raises parallel difficulties to an honest lie, see G.W., 729; or honest graft, see David Ward, 'The Ethnic Ghetto in the United States; Past and Present', Transactions of the Institute of British Geographers (New Series) 7 (1982), 262, and Riordan (ed.), Plunkitt of Tammany Hall (New York, 1963)]. In Salvo [ 66 [1980]VR 401] a used car dealer sold a Valiant to K, taking a Falcon in part exchange; Salvo then sold the Falcon to T. Later Salvo discovered that K had had no title to sell the Falcon and he, Salvo, was put to expense to perfect his title. Later Salvo repurchased the Valiant from K, paying by cheque, intending subsequently to dishonour it, which he did, all on the grounds that this was the only way he could get the Valiant back. Although convicted of dishonestly obtaining property by deception his conviction was quashed on the grounds that a claim of right could be a defence even where property was obtained by deception. If so, the proper arrangement is to leave dishonesty in deception cases entirely at large for the jury which, as it happens, is, indeed, current legal practice in England.



Professor Smith helpfully compares theft, forgery and blackmail: 'It appears then that if D believes he is entitled to a sum of money (and even if he is entitled to it); (i) he is guilty of forgery if he demands it with a forged instrument; (ii) he is guilty of blackmail if he demands it with menaces; but (iii) he is not guilty of theft if he appropriates it'[67 Smith. Theft, para. 182]. He then asks whether obtaining offences should be grouped with forgery and blackmail on the one hand or with theft on the other and he submits that 'they belong with theft' [68 Ibid]. Now, whatever the merits of Professor Smith's arguments it is to be noted that this grouping of obtaining offences with theft is a choice not necessitated by statute, nor case law, nor by logic. And even if obtaining offences are more like theft than forgery or blackmail, it does not follow that they fall to be treated exactly as does theft with [89] regard to a claim of right or dishonesty. Essentialism is the vice of believing that for one word there is but one meaning. Applied to dishonesty, essentialism is especially vicious. Dishonesty is context

dependent. Thus what might constitute dishonesty in theft may differ from that which constitutes dishonesty in deception offences in significant respects, notwithstanding a strong family resemblance. These differences may make a moral difference. This itself legitimates leaving an undefined residue for the pragmatic determination of the jury. Hale observed: 'the variety of circumstances is so great and the complications thereof so mingled that it is impossible to prescribe all the circumstances evidencing a felonious intent but the same must be left to the due and attentive consideration of the judge

and jury' [69 1 P.L. 500]. Equally, the range of circumstances is so great and the complications so mingled as to render exhaustive definition of dishonesty impossible and it, too, should be left to the attentive consideration of the jury.



VI. Subjectivism



An additional problem when one looks at a concept such as dishonesty relates to the traditional categories of the criminal lawyer. Crimes are conventionally divided into two major clusters of elements: actus reus and mens rea. Mens rea has been criticized by judges, for example by both Stephen J. and Cave J. in Tolson as 'misleading' or 'uncouth' [70 Tolson (1889) 23 Q.B.D. 168, 185; 181] and actus reus attracted the strictures of Lord Diplock in Miller [71 [1983] 2 W.L.R. 539]. None the less, these concepts provide the basis for the exposition and analysis of the criminal law. A problem is that some concepts,and dishonesty is but one example, straddle the boundary and this problem is exacerbated where a belief prevails that every concept is exclusively mens rea or actus reus. Thus Professor Smith regards 'dishonestly' in the Theft Act as a separate element in the mens rea [72 Smith, Theft, para. 181; cf. 5th edn (London, 1984), paras 122-124]. There is without doubt a significant element of truth in this because the requirement of dishonesty involves not merely the objective circumstance that the accused's conduct does not conform to prevailing standards but also that he acted 'with a consciousness of wrong-doing [73 Thomas, The Institutes of Justinian (Oxford, 1975), 265]. Consequently there is also a significant element of truth in Professor Smith's observation. [90] that 'dishonesty is a subjective concept'. The rigid dichotomy of mens rea and actus reus and the 'evangelical zeal' [74 74See Wells, [1982] Crim.L.R. 209, 210] with which some academics pursue subjectivism, being 'in total subjection to the subjectivist bug' [75 Cross, (1975) 91 L.Q.R. 540, 541] raised the possibility in the academic mind that perhaps dishonesty was wholly a subjective concept. That, in turn, raised the spectre of the 'Robin Hood defence', that is, the possibility that an accused might be acquitted of theft because he believed it honest to steal from the rich and give to the poor. If this were s then the entire law of theft would be subverted for it would be a case of every man his own legislator. Professor Glanville William remarks that subjectivism of this extreme variety 'gives subjectivism a bad name' [76 G.W., 727]. Indeed it does and one might suppose that some of the professorial opposition to the concept of dishonesty was informed by the aim of protecting subjectivism from apparent absurdity

However, rather than seek wholly to objectify dishonesty in the law, in order to avoid the apparent absurdity of subjectivism one might accept that dishonesty is a dual concept, encompassing both subjective and objective elements. In Caldwell, Lord Diplock gently mocked English academic criminal lawyers for being 'obsessive' [77[1981] 1 All E.R. 961, 965] about the subjectivist-objectivist dichotomy and he remarked that 'questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective'[78 [1981] 1 All E.R. 961, 967].



Rather than acknowledge the dual nature of dishonesty, the commentators, perhaps because of their disdain for 'Judge and Co' and for the jury, anticipated that the law would develop in such way as to establish the 'Robin Hood defence'. They were therefore astute to read such nonsense into the decisions of the courts when the issue of dishonesty arose. Thus in Gilks [79 [1972] 3 All E. R. 280.] they perceived an acknowledgment that the defendant's belief that bookmakers were

fair game might constitute a defence and in Boggelyn v Williams [80 [1978] 1 W L R 873] they believed their suspicions to be wholly vindicated. In that case the defendant whose electricity had been cut off reconnected the supply. He knew that the supplier did not consent but he notified him of the reconnection and believed reasonably that he would be able to pay at the due time. The court rejected an argument that the defendant's beliefs were irrelevant, holding that they were, indeed

crucial to the question of his honesty. It does not follow, however, [91] nor did the court state that the relevance of the defendant's belief rendered his belief dispositive. The courts have never held that a man's moral values, bizarre or not, may constitute a defence. What they have held and held repeatedly, albeit with occasional laxity of expression and some tergiversations, is that a man's belief that his conduct is not dishonest according to the current standards of ordinary decent people may well excuse on a charge of theft or of a deception offence.



The Court of Appeal has restated the position in Ghosh [80 [1982] Q.B. 1053, especially 1064. The facts of the case were that a surgeon obtained fees from the NHS by falsely representing that he had performed an operation. He claimed that the money obtained was the balance of fees already owed to him]. A jury must first of all decide whether according to the ordinary standards of honest and decent people what was done was dishonest. If it was not dishonest by these standards that is the end of the matter and the prosecution fails. If it was dishonest by those standards then the jury must consider whether the defendant himself realized that what he was doing was by those standards dishonest. If the answer to this question is 'No' the prosecution fails; if 'Yes''it succeeds on the issue of dishonesty. This statement reveals very clearly the dual nature of dishonesty. The first question is wholly objective. The second question is subjective. It appears, further, that an acquittal under the second question could well be justified by reference to the general principle that an accused falls to be judged on that state of facts which he honestly and bona fide believed to be the case [82 Prince (1875) L.R. 2 C.C.R., 154, 157, per Brett J., 'The first point therefore to be considered would seem to be what would have been the legal position of the prisoner if the facts had been as he believed them to be... ?']. The defence of mistake of fact is well established in English criminal law and much applauded by the subjectivist lobby [83 Morgan [1976] A.C. 176; David Raymond Smith [1974] Q.B. 354; see Smith and Hogan, Criminal Law, 5th edn, 188-190]. It will not suffice that the accused claims simply not to know what the current standards are. In order to succeed he will have to assert a positive, albeit mistaken, belief that current morality did not stigmatize his conduct as dishonest.



The facts of Greensstein [84 [1976] 1 All E.R. 1.] illustrate the possibility of an acquittal under the dual test re-affirmed in Ghosh. The defendants made a practice of applying for very large quantities of shares sending a

cheque far in excess of the amounts in their bank accounts. They had no authority to overdraw but they expected to be allocated a relatively small number of shares and receive a 'return cheque'. By [92] paying this cheque into their account they enabled their original cheques to be honoured either on first presentation or very soon thereafter. The point of this complex manoeuvre, known as 'stagging', was to receive a larger number of shares than they would otherwise have been allotted because where demand outstrips supply shares are allocated in proportion to the numbers applied for. Now it is quite possible to regard this manoeuvre either as dishonest or as an ingenious stroke of business acumen; 'there is nothing illegal in stagging' [85 Ghosh [1982] Q.B. 1053, 1057, citing Greenstein [1975] 1 W.L.R 1353, 1359]. The jury found the defendants guilty as charged but it is likely that it was influenced by the fact that the defendants had pursued this course of action repeatedly even after warnings that it was unacceptable to the issuing houses and to their bank. If one supposes a single instance of stagging in the absence of any warning a defendant might plausibly argue that what he did was not contrary to the standards of ordinary decent people; and that if it was he positively believed that it was not. After all, the practice was well .enough established in his community to have been given a name and it therefore follows that he was not the only person using the stunt. A jury might well conclude on such facts that although the practice was dishonest, the defendant believed it to be honest and therefore acquit. The more an accused's belief diverges from the current standards the less is a jury likely to accept that he actually held the belief asserted. 'It will be a rare day when a jury is satisfied as to the existence of an unreasonable belief' [86 Per Dickson J., Pappajohn (1980) 111 D.L.R. 1, 20]. The more dubious the deliverances of current morality, the more likely is a jury to accept the belief asserted. That seems to me to be eminently correct. It strikes the appropriate balance between objective and subjective elements and it prevents the conditions of criminal liability being more stringent than those of moral culpability. It would be wrong for the law to seek to be more precise than the conventional morality which it reinforces and reflects.



VII. Law and Morality



Professor MacCormick observes that the criminal law is necessarily geared to the protection of legitimate interests according to a certain dominant political morality [87 'Against Moral Disestablishment' in MacCormick, Legal Right and Social Democracy (Oxford, 1982), pp 18-38, at p 30]. Punishment he holds to be 'an [93] expressive and symbolic act' [88 Ibid] evincing moral disapprobation. 'It sets the seal of public disapprobation upon the wrongful act of which the offender has been found guilty. . . [it] expresses the state's condemnation of the deed done.' Further, 'an attitude of condemnation or disapprobation is per se a moral attitude' [90 Op cit, 33]. Both Durkheim and Lord Devlin emphasized that the cohesiveness and solidarity of any large and complex polity requires some common morality [91 Op. Cit., 34]. Of course it would be fanciful to suggest that a social morality lies fully armed within the common consciousness of the members of a society. None the less, in order for a society to exist at all there must be some shared basic morality. That shared basic morality is incorporated into the law which not only reflects but also articulates, refines and makes more precise the requirements of the morality of a society as it applies to particular cases.



The moral value underlying theft is honesty. In incorporating the moral value of honesty the criminal law should prohibit that which is clearly dishonest and permit that which is clearly honest. Only thus can the 'criminal law . . . support morality, not contradict it' [92 Canadian Law Reform Commission Working Paper 19 (1977)]. Once it is clear that the criminal law supports moral values and that criminal punishment evinces a moral judgment on the conduct of the accused, borderline cases fall into perspective and are readily dealt with. Such borderline cases are inevitable by the very nature of the concept of dishonesty. In the real world conduct passes by degrees from the completely honest to the blatantly dishonest and somewhere in the middle a grey area obtains calling for fine judgment. These borderline cases cannot properly be dealt with in advance because they are invariably complex on their facts. Thus the law ought to leave these cases to the trial court or jury. These know the facts and can therefore properly measure such cases against the moral standard. Such cases are in moral terms doubtful. The law cannot be more precise than the morality it reflects without becoming artificial and remote. And if the law serves moral values which are artificial and remote from ordinary standards, imposed, for example, by exhaustive definitions of moral concepts such as dishonesty dreamed up by a commission of academics, the law itself will fall into disrepute.



It may appear that such a proposal for borderline cases renders the law uncertain and, indeed, this is so but the .uncertainty is that of the [94] human predicament itself and cannot realistically be legislated away. In any case if the law is as I have described it, it embodies the common teachings of morality and 'everyone is required to live up to such common moral principles. He who knowingly skates on thin ice cannot reasonably complain that no sign-post marks the prec~se spot

at which he may fall through. Those who disregard the common moral teachings do so at their peril' [93 Per Lord Morris, Knuller v D.P.P. [1972] 2 All E.R. 898, 910]. In practice, however, where the immorality of conduct is a matter of reasonable doubt it is unlikely that a jury will be unanimously or almost unanimously of the opinion that the accused was sufficiently immoral to justify his being punished and the genuinely borderline case will result in ar

acquittal.



The commentators have advocated a priori rationalist (and indeed, critical) morality in which everything is cut and dried in advance and all determinations are for~e~closed upon by exhaustive definitions. Consequently the robust common sense of juries and the intuitions of judges are obstacles to be eliminated. A counter-model of morality involves constructing the best moral theory one can on the basis of one's intuitive judgments in particular cases rather than deriving solutions from principles unequivocably given, self-evidently, in reason. Of course no theory can accommodate all intuitions and the constructive model of morality allows one to discard recalcitrant intuitions as misconceived but one cannot merely discard intuitions out of hand. Out of this attempt to reconcile conflicting intuitions emerges moral principles which themselves are

susceptible of refinement and qualification in the light of further instances and dilemmas. This dialectic of principle and instance reflected within the legal process itself which throws up an inexhaustible supply of examples in the light of which principles may tested, qualified and refined. Law is, on this view, the institutionalisation of the constructive model of morality. Consequently the intuitions of judges and the collective decisions of juries provide data which are prima facie are to be accommodated rather than simply dismissed out of hand. On such a view the law, especially the criminal law, reflects and supports some conception of a just social order.



This continuity of positive law and positive morality presupposes no Holmesian 'brooding-omnipresence in the sky'[94 Per Holmes J., Southern Pacific Co. v Jensen (1917) 244 U.S. 205, 222] and it concedes only that law is necessarily moral in the purely~formal sense whereby it seeks to determine how one ought to behave [95 Kelsen, Pure Theory of Law (Berkeley and Los Angeles, 1967), 65. The content of the [95] law is not, however, necessarily moral if by that is meant that to be moral it must conform to values proceeding from some a pnori rationalism. The moral content of the law flows from the detailed, patient interplay of doctrine and decision; of principle and precedent. On such a view law is the dominant and, indeed, most fully articulated system of positive morality in a community and it is therefore an appropriate arena for applied moral philosophy. It is true, as Professor Smith observes, that 'it is the business of the law to establish standards' [96 Smith, Theft, para. 117.] but it does not follow from this that the legislature informed by the rationalist codefier is the sole source of the standards which the law does establish and nurture and arguably 'the current standards of ordinary decent people' have at least as strong a claim to inform the content of law as have the rationalist values imposed ab extra by reformers and expositors of the law. Only by leaving an undefined residue to the judgment of the jury can we be confident that the law runs in harmony with conventional moral values and that changes in such values will be accommodated and therefore that no one will be convicted of serious crime whose conduct is not deserving of moral obloquy.



VII. Conclusions



I take the concept of dishonesty as an example of standard-bearing concepts generally. Other examples are 'immoral purposes' in section 32 of the Sexual Offences Act, 1956 [97 Grey [1982] Crim.L.R. 176.] and the common law notion of a 'disorderly house'[98 Tan [1983] 2 All E.R. 12]. In my view such concepts are not and cannot be exhaustively and exclusively defined by the law. Rather, they reflect extra legal standards of social conduct. The existence of such concepts in the law suggests a general thesis, namely that any functioning legal system necessarily incorporates and reflects values immanent in the community which it serves. Such a thesis supports these propositions: law is simply too important a matter to be left solely to lawyers; not all law is 'lawyers law' and one should guard against an academic tendency to convert questions of practical moral philosophy into technical questions exclusively determined by the law; where standard-bearing concepts feature in the legal universe of discourse, moral philosophers have a 'significant contribution to make; and, since law necessarily involves questions which are irreducibly moral, the law provides the most detailed and best [96] authenticated data for practical moral philosophizing. Finally, a distinction taken by Bentham, Austin and Mill between 'positive' and 'critical' morality and more recently canvassed by Professors Cooper and Strawson distinguishing what I call 'essential social morality' and 'extravagant individual morality' calls for further scrutiny [99 Cooper, 'Two Concepts of Morality', Philosophy (1966),19-33; Strawson, 'Social Morality and Individual Ideal', Philosophy (1961), 1-17; see, too, Urmson, 'Saints and Heroes', in Essays in Moral Philosophy Melden (ed.) (Washington, 1958), 198-216] because the essence of the controversy between the academics and the judges is not morality (writ large) versus mores (writ small) but the critical morality of a self-selecting group versus the positive morality of ordinary people. That discussion, however, awaits another day.



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