Chapter 12Criminal liability in businessdoes not initially know who the owner is but later finds
out and does nothing. In cases not falling within s 2(1)
it is necessary to prove dishonesty. The test for deciding
dishonesty was laid down in Rv Ghosh(1982). The
defendant was a surgeon who claimed fees from a hos-
pital for operations he had not carried out. Although the
case was concerned with obtaining money by deception,
the Court of Appeal laid down a test for dishonesty
which applies also to cases of theft. The test has two
branches as follows:
■The jury is to apply the ordinary standards of reason-
able and honest people, and, if the behaviour of the
defendant was dishonest by those standards, he may
be guilty. If not, he is not guilty.
■However, even if the defendant is dishonest by the
above ordinary and decent standards, he will still not
be guilty unless he realised that ordinary people
would regard him as dishonest. The test is, therefore,
subjective.
However, in the usual case of theft the judge may
consider that there is no evidence to show that the
defendant believed that he was not dishonest and where
this is so the judge need not give a direction to the jury
in terms of Ghosh. The test is a difficult one to explain to
a jury and can lead to inconsistent decisions according
to the make-up of the jury and the part of the country in
which it sits. As an example, we may take a trial for theft
of some committed anti-vivisectionists who have stolen
animals from a laboratory. Apply the test and see what
you think. What do your fellow students think? Fred
regularly robs the rich to give to the poor. How do you
find on Fred’s trial for theft?
Intention permanently to deprive
This is the second branch of the mens reaof theft. Its
main purpose is to prevent most unauthorised borrow-
ings from being theft. An intention to return the prop-
erty sooner or later is not an intention permanently to
deprive. However, if there is an intention permanently
to deprive at the time of taking, giving the property back
will not change the fact of theft and the charge of theft
will be made out (see Rv McHugh(1993)). The concept
is dealt with by s 6(1); it does not often apply. In addi-
tion, s 6(2) applies and covers an even smaller number
of cases. It applies where A being in possession of B’s
property pawns it. Despite A’s intention to retrieve the
property and return it, he is regarded as having treated
it as his own for the purposes of theft.
Intention may be conditionalas where A puts his
hand into B’s pocket intending to deprive him perman-
ently of any money he may find there. However, there
is no money so the crime of theft is not committed. In
such a case a charge of attempted theft is appropriate.Fraud and malpractice
Here we consider some common types of fraud and
malpractice. The subject is a difficult one to grasp be-
cause the criminal fraternity is always developing new
variations of existing crimes. However, a knowledge of
the following should satisfy examination requirements.Computer fraud
In a typical case the fraudster will get access to a com-
puter which controls the movement of money. An in-
struction will be given for money to be transferred to the
fraudster’s account which may often be outside the UK.
However, the House of Lords had ruled that the Data
Protection Act 1984 was not breached if information on
a computer screen was merely viewed and not used.371
Rv Brown (1996)The defendant, who was at the relevant time a serving
police officer, checked details of car registration num-
bers held on the police national computer on behalf of
a debt-collector friend. He was charged under the Data
Protection Act 1984. Section 5(2)(b) stated that it was
an offence for a registered data user knowingly or reck-
lessly to hold personal data to ‘use’ any such data for
any purpose other than the one described in the relevant
entry in the register. The House of Lords ruled that the
defendant was not guilty. The term ‘use’ could not apply
merely to accessing information and reading it. Since
there was no evidence that the defendant had made any
use of the information, as by passing it on to his friend,
he had not broken the law.
Comment. Lord Griffith, one of the two judges dissent-
ing, felt that the majority judgment left a serious gap in
the protection the 1984 Act offered. He felt that the
integrity and security of data were not fully protected, as
was the intention behind the Act. In particular, it might
not be an offence to interfere in some way with data after
processing it, short of using or applying it. He said: ‘I
cannot believe that in the Data Protection Act it was
intended that wrongful interference with the data by
those with access to it should not be an offence.’ He