As for dishonestly, it is not positively defined in the act as the Criminal Law Revision Committee 8th report felt that it was a word that could stand without a definition and which a jury could easily recognise. Glanville Williams considers that 'honesty' can mean respect for property rights, refraining from deception and keeping promises. It is these that are important for the law of theft. As Alan's case do not fall within any of situation in s. 2(1)31, the courts have to look to the common law to decide whether Alan has been dishonest.
In order to find out if Alan was dishonest, the court has to find out what Alan's belief was in relation to the appropriation and then apply the basic test for dishonesty, which is the Ghosh test where Lane LCJ reviewed the history of dishonesty and arrival at a dual test which is to ask the jury to decide upon the following matter:32 (i) was what was done dishonest according to the ordinary standards of reasonable and honest people? If 'no', Alan is not guilty. If 'yes', (ii) Did Alan realise that reasonable and honest people regard what he did as dishonest? If 'yes', Alan is guilty; if 'no', then he is not.
However, it is not always necessary to give the Ghosh direction in every case33. This test would only apply if Alan appeared to believe that his actions were not dishonest but there was some doubt about whether he really thought that others would share his view. In this case, it is quite obvious that Alan had acted dishonestly and knew that others would think that he was acting wrongly. So, it would not be necessary to apply the Ghosh test. Alan would be considered dishonest in this case. Regarding Alan buying the second hand car from a friend's case, we would have to examine the element of 'obtaining pecuniary advantage by deception'.
In this case, we will look into 'obtaining a property by deception', where Alan buys his friend's car with a worthless cheque. The deception is through paying his friend a worthless cheque for the car and is one of the most common examples of implied conduct. It is quite obvious to us that the deception Alan practised was intentionally34. However, it is very important to realise that, in addition to any deception, it is also necessary to prove a dishonest intent35. To decide whether Alan was dishonest, the Ghosh test, mentioned above will be used.
With regard to dishonesty in theft, s. 2(1) lays down situation where a person is not classed as being dishonest, it is essential to note that there is no corresponding section with regard to obtaining property by deception. However, although the deception may be the operative, Alan may lack the mens rea of 'intention of permanently depriving other of it'. This is because instead of treating the property as his own to dispose of, we are told from the information that Alan intended to return the car when he receives the money he is owed36. Thus, Alan may not be liable for the s.
15 offence in this case as he did not have the intention to permanently deprive the car from his friend from the start. Lastly, in the case where Alan goes to a local health club to use the facilities, there is a possibility that Alan would be liable for 'obtaining services by deception'37. A 'service' is broadly defined in terms of a 'benefit' that an individual would be willing to pay for38. It is generally logical that in health clubs like in this case, there is an understanding that the service (facilities) has been or will be paid for; as obtaining a free service is not sufficient to this offence39.
However, due to insufficient information, we are not sure if Alan was in fact, a member of the club and really left his card at home. This is vital because if he is, there is no dishonesty and deception thus; no offence was committed by Alan. However, if Alan was not a member of the club, the mental element for this offence consist of an intention or reckless (in the Cunningham sense) in relation to the deception and dishonesty. Once again, in cases of doubt concerning dishonesty, the Ghosh direction should be given to the jury.
Meanwhile, it is important to note that the deception must take place before the obtaining40 and must be operative in the same way as s. 15 of the Theft Act 196841 which was what happened in this case. Therefore, if Alan was telling the truth that he left his membership card at home, he would not be liable for the s. 1 Theft Act 1978 offence, in which otherwise, he would. In conclusion, the law of theft has grown quite complex, mainly because of the uncertainty generated by changing decisions on the interpretation of various words and phrases making up definition of theft in s. 1 and the explanation provided in ss. 2-6.
As for deception, in 1999, the Law Commission published a consultation paper making proposals such as; provisionally rejected single offence of 'dishonesty' partly because it is uncertain whether this would be too loosely drafted to satisfy the European Convention on Human Rights, rejected the idea of a general deception offence and proposed that there should be an offence of depriving someone of property, irrespective of whether anyone else obtains it.
Reforms are suggested to ensure that liability for obtaining a service by deception can be imposed where a machine is deceived in an effort to keep pace with technological changes and the development of internet. Finally, it proposes to abandon the requirement of a 'representation' being made before finding a deception offence. This shows that several reforms such as mentioned should be made to the law of theft and deception in order to make the law more understandable and easier to access in the future.