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help me understand!

Re: help me understand!

Postby atticus » Thu Sep 10, 2015 9:42 am

Sometimes pennies take a long time to drop (my name is not "addicus").
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Re: help me understand!

Postby atticus » Thu Sep 10, 2015 10:34 am

The question is whether there is a test for "dishonesty".

http://www.bailii.org/ew/cases/EWHC/Ch/2010/2767.html - do paragraphs 62-64 and 81 and 82 help?
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Re: help me understand!

Postby atticus » Thu Sep 10, 2015 11:12 am

And Lord Lane CJ in R v Ghosh [1982] 2 QB 1053

In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, this is the end of the matter and the prosecution fails. If he was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly


Maybe dls can provide links to his swarb.co.uk caselaw digests for this case.
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Re: help me understand!

Postby dls » Thu Sep 10, 2015 2:00 pm

Regina -v- Ghosh; CACD 5 Apr 1982
References: [1982] 1 QB 1053, (1982) 75 Cr App R 154, [1982] 2 All ER 689, [1982] EWCA Crim 2, [1982] 3 WLR 110
Links: Bailii
Coram: Lord Lane CJ
The defendant surgeon was said to have made false claims for payment for operations, and was charged under the 1968 Act. He claimed to have been entitled to the sums claimed, and denied that he had been dishonest. The court considered the meaning of dishonesty.
Held: His appeal failed. Dishonesty is a state of the mind rather than a course of conduct. The views of the jury as to whether an Act was dishonest could not make an Act dishonest if it was not dishonest in the defendant's mind. The test was not purely objective, but to accept an unvarnished subjective test would be to abandon all standards but those of the accused himself. Accordingly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.
Lord Lane CJ said: 'In determining whether the Prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those 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 must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.'
Statutes: Theft Act 1968 1
This case cites:
    - Considered - Regina -v- Greenstein; Regina -v- Green CACD ([1976] 1 All ER 1)
    Meaning of dishonesty under the 1968 Act. . .
    - Dicta disapproved - Regina -v- McIvor CA ([1982] 1 WLR 409, [1982] 1 All ER 491)
    The defendant had been refused a loan by his employers. He took the money anyway and repaid it. On discovery he was charged with theft. He denied that he had been dishonest. He appealed a direction from the judge that his own state of mind was . .
    - Cited - Regina -v- Feely CACD ((1973) 57 Cr App R 512, [1973] QB 530)
    In relation to a charge of theft where the issue of dishonesty is raised, the issue must be left to the jury. The question was, was what was done dishonest according to the ordinary standards of reasonable and honest people? Lawton LJ said: 'Jurors, . .
    - Considered - Regina -v- Landy; Regina -v- White etc CACD ([1981] 1 WLR 355, [1981] 1 All ER 1172)
    The defendants appealed against convictions for conspiracy to defraud. The three were bank employees including the chairman, and between them managed to take money from the bank by different forms of malpractice. The defendants denied dishonesty, . .

This case is cited by:
    - Cited - Regina -v- Roberts (William) CACD ([1987] 84 Cr App R 117)
    A Ghosh direction can be misleading for a jury. . .
    - Cited - Regina -v- Price CACD ([1990] 90 Cr App R 409)
    In most cases where dishonesty is alleged, a Ghosh direction is not only unnecessary but also misleading. . .
    - Cited - Atkinson -v- Regina CACD (Bailii, [2003] EWCA Crim 3031)
    The appellant had been convicted of false accounting in the making of false claims for payment for prescriptions, submitting forms which said that the patient was over 60 when she knew they were not. She said she filled the forms in mechanically. . .
    - Cited - Twinsectra Ltd -v- Yardley and Others HL (Times 25-Mar-02, House of Lords, Bailii, Gazette 10-May-02, [2002] UKHL 12, [2002] 2 AC 164, [2002] 38 EGCS 204, [2002] PNLR 30, [2002] 2 All ER 377, [2002] NPC 47, [2002] 2 WLR 802, [2002] WTLR 423)
    Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
    Held: 'Money in a . .
    - Cited - Harrison -v- Teton Valley Trading Co; Harrison's Trade Mark Application (CHINAWHITE) CA ([2005] FSR 10, Bailii, [2004] EWCA Civ 1028, Times 19-Aug-04)
    The applicant had been an employee of the objector at their nightclub 'Chinawhite' and whose principal attraction was a cocktail of the same name. Employees signed a confidentiality agreement as to the recipe. Having left the employment, the . .
    - Cited - Wheatley and Another -v- The Commissioner of Police of the British Virgin Islands PC (Bailii, [2006] UKPC 24)
    (The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
    - Cited - Department for Work and Pensions -v- Courts Admn (Bailii, [2006] EWHC 1156 (Admin))
    The appellant challenged stays of proceedings by the respondent magistrates court for abuse of process infringing the defendants' human right to a fair trial. The magistrates had fund that being faced with dismissal of a summary case through delay, . .
    - Cited - Regina -v- Awoyomi CACD ([1997] EWCA Crim 53)
    The defendant appealed her conviction and sentence for mortgage fraud. The court had refused to admit medical evidence that she might be unfit to continue her trial.
    Held: It would be rare to admit evidence which might support a Ghosh . .
    - Cited - Hashman and Harrup -v- The United Kingdom ECHR ((1999) 30 EHRR 241, 25594/94, Bailii, [1999] ECHR 133, Bailii, (1999) 30 EHRR 241, Bailii, [2011] ECHR 1658)
    The defendants had been required to enter into a recognisance to be of good behaviour after disrupting a hunt by blowing of a hunting horn. They were found to have unlawfully caused danger to the dogs. Though there had been no breach of the peace, . .
    - Cited - John Lewis Plc -v- T L Coyne EAT (Times 08-Jan-01, EAT/581/99, EATn, Bailii, [2000] UKEAT 581_99_0712)
    An employee had been dismissed for making private telephone calls at work, against company policy. The dismissal had been based upon the general assessment that making such calls was dishonest.
    Held: The employer's appeal failed. The procedure . .
    - Cited - Regina -v- George and Others CACD (Bailii, [2010] EWCA Crim 1148, [2010] WLR (D) 147, WLRD, [2010] UKCLR 1383, [2010] 4 All ER 984, (2010) 174 JP 313, [2010] Lloyd's Rep FC 495, [2010] 2 Cr App R 17, [2010] 1 WLR 2676)
    The defendants were senior executives of BA. They made interlocutory appeals while undergoing trials for alleged price fixing under section 188 of the 2002 Act. The judge had ruled that the prosecutor need prove dishonesty only as against the . .
    - Cited - Regina -v- Clarke CACD (Bailii, [1996] EWCA Crim 1804, [1996] Crim LR 824)
    Several people had lost large sums of mony by a fraud. The defendant had approached them offering his services as a private investigator to seek to recover their money. He pleaded guilty to one allegation of deception after an indication from the . .
    - Cited - Regina -v- O'Connell CACD ((1992) 94 Cr App R 33)
    The appellant and his wife appliied for loans to buy residential properties to be let to obtain a rental income covering most of the mortgage payments. The properties were later sold to take advantages of increases in value. A sum of £1.5 . .
    - Cited - Gandhi Tandoori Restaurant -v- Customs and Excise Commissioners VDT ([1989] VATTR 39)
    The court considered the use of R v Ghosh when considering whether dishonesty had been established under section 13 of the 1983 Act, saying: 'It is to be observed that in section 13(1) the first requirement for liability to a penalty is that the . .
    - Cited - Zen Internet Ltd -v- Customs and Excise VDT (Bailii, [2004] UKVAT V18563)
    <a title='Source of text]VDT[/url] VALUE ADDED TAX - dishonest evasion - VATA s 60 - appellant paying six successive centrally-issued assessments for less than the true liability - inadequate attempts to put accounting records in order - . .

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Re: help me understand!

Postby preacherman » Thu Sep 10, 2015 3:54 pm

atticus wrote:Sometimes pennies take a long time to drop (my name is not "addicus").


I already knew that, and covered it early in the post :roll:
:lol:
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Re: help me understand!

Postby preacherman » Thu Sep 10, 2015 4:04 pm

so would I be correct in saying that a Judge did not find on whether a solicitor was dishonest (in law at a pro negligence hearing), if he began by looking at caparo, and the caparo test, (no other case, or test) and then reads from Jackson and Powell, i.e it seems to me when concerned with opposing parties in litigation a court must be slow to hold a duty exists, as it stated in jackson and powell on professional liability

he then reads the paragraphs about duty of care, the other side to litigation etc, which ends, 'secondly they are expected not to do something dishonest or disreputable'.

he then says 'I am concerned with professional negligence I do not find Mr X dishonest in what he advanced and set out for the purposes of this claim.'

that cant be a finding on dishonesty can it? as no test was applied?
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Re: help me understand!

Postby preacherman » Thu Sep 10, 2015 4:08 pm

atticus wrote:The question is whether there is a test for "dishonesty".

http://www.bailii.org/ew/cases/EWHC/Ch/2010/2767.html - do paragraphs 62-64 and 81 and 82 help?


that's good thanks.
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Re: help me understand!

Postby atticus » Thu Sep 10, 2015 4:08 pm

(reply to 2 posts above)

That is a clear statement that the judge did not make a finding of dishonesty. You had the burden of proving dishonesty. You did not do so. Therefore you lost on the point.

Question: did you plead dishonesty properly? See the first case I linked to.
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Re: help me understand!

Postby preacherman » Thu Sep 10, 2015 6:54 pm

atticus wrote:(reply to 2 posts above)

That is a clear statement that the judge did not make a finding of dishonesty. You had the burden of proving dishonesty. You did not do so. Therefore you lost on the point.

Question: did you plead dishonesty properly? See the first case I linked to.


That is a clear statement that the judge did not make a finding of dishonesty.....(that's what I kind of figured out eventually), but
not according to the SRA! they say the judge found there was no dishonesty! (or maybe they are saying same as you?) ( but its their job in part to deal with a matter also as they previously had the other partner struck off)

I never pleaded dishonesty. its about the SRA, they wont take any action as they say the Judge found there was no dishonesty,(well they actually say, court did not find Mr X dishonest) due to the piece of transcript mentioned. the judges statement does read a bit oddly. 'I am concerned with professional negligence I do not find Mr X dishonest in what he advanced and set out for the purposes of this claim.'
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Re: help me understand!

Postby atticus » Thu Sep 10, 2015 8:38 pm

If you did not plead dishonesty you can hardly expect the judge to answer a question which you did not ask.
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