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86 J. Crim. L. 3 (2022)

handle is hein.journals/jcriml86 and id is 1 raw text is: The Journal of Article Ciia a The Journal of Criminal Law 2022, Vol. 86(1) 3-17 Mistaking theft: Dishonesty © The Author(s) 2021 'turns over a new leaf Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/00220183211028702 journals.sagepub.com/home/clj @SAGE Bo Wang University of Surrey, UK Abstract The common law doctrine of mistake of fact or civil law works as denial of offending, but dishonesty works as one of the definitional elements of crimes such as theft and fraud. It is argued in this article that the rulings in R v Barton [2020] 3 WLR 1333 and Ivey v Genting Casinos (UK) (trading as Crockfords Club) [2018] AC 391 do not change the doctrine of mistake of fact or civil law but do change the law in respect of mistakes about what is honest. A defendant whose conduct is taken as dishonest according to community standards may well avoid criminal liability if he was genuinely mistaken about a fact or civil law right. It is submitted that since the doctrine of mistake of fact or civil law is already provided for, the law is not expanded greatly by the rulings in Ivey and Barton which merely bring back the objective test of dishonesty that had long been established before the Ghosh test. The decision in Barton is substantively wel- come, even though the change in the law arose from a civil law case where dishonesty was not an issue before the court. Keywords Dishonesty, theft, mistake of fact or civil law, claim of right, community standards, consent Introduction Williams argued persuasively that an unreasonable mistaken belief in a claim of right provided a defence to larceny, which covers not only mistake of civil law right but also mistake of fact.1 Both kinds of mistake show that the taking was without the requisite intent.2 On a belief in a moral claim of right, Williams wrote: 'But in exceptional circumstances belief in moral right may show that the act is not done [dishonestly]'.3 As we will see below, in Williams's latter writings he made it clear that it was not for the thief to put forward his own standard of moral right or of normative honesty. The standards of honesty 1. G Williams, Criminal Law, The General Part (2nd edn Stevens & Sons, London 1961) 305-331. 2. Ibid., 322. 3. Ibid. Corresponding author: Bo Wang, University of Surrey, Guildford GU2 7XH, UK. E-mail: b.wang@surrey.ac.uk