Some juridical reflections on the private prosecution of the Mormon leader for fraud (Phillips v. Monson)

[Omi Hatashin, Kyoto, Japan] This is indeed an interesting case, though, for a number of technical reasons, I do not think that this private prosecution goes to trial. Having said that, I think that the key question for English courts (as distinct from Scottish courts) would be ‘dishonesty’ under s. 2 (1), Fraud Act 2006, in particular, the judge’s direction to the jury in accordance with the Court of Appeal ruling on R v Ghosh [1982] QB 1053.  S. 2 (1), Fraud Act 2006 reads, ‘[a] person is in breach of this section if he (a) dishonestly makes a false representation, and (b) intends, by making the representation (i) to make a gain for himself or another, or (ii) to cause loss to another or to expose another to a risk of loss.’ There are two mental elements (mens rea) constituting the offence, namely, dishonesty and intention. Similarly, dishonest failure to disclose information  and dishonest abuse of position are criminalised in ss. 3 and 4, respectively. The Ghosh case was related to dishonesty in s. 1, Theft Act 1968 (unrepealed), but because the same word is used in s. 2, Fraud Act 2006, the Ghosh test applies in this case, Phillips v Monson, too.

The Ghosh test consists of a set of two questions:

  1. Was what was done dishonest according to the ordinary standards of reasonable and honest people?
  2. If so, did the Defendant (Mr. Monson) know that what he was doing was by those standards dishonest?

The first question for the members of jury is an ‘objective’ test. If the answer is no, that is conclusive. The defendant is NOT dishonest. The prosecution fails.

If the jury answer the question, ‘yes, it was a dishonest thing to do’, before they convict the defendant they have to ask themselves the second question. Did the defendant know that ordinary people who are reasonable and honest would regard what he did as dishonest? The second question is not of what the defendant personally thought, according to his own criteria, but whether he realised what ordinary people who were reasonable and honest thought.

The second question is often called the ‘Robin Hood’ question. Robin Hood considered his action not dishonest according to his own criteria. He had taken money away from dishonest and rich people, and distributed the money among honest and poor people. ‘What was wrong about it?’ – would Robin Hood have asked. But, said Lord Lane CJ in R v Ghosh [1982] QB 1053, ‘Robin Hood [is] acting dishonestly, even though [he] may consider [himself] to be morally justified in doing what [he does], because [he] know[s] that ordinary people would consider these actions to be dishonest.’

Applying the law to the facts of this Mormon case, what matters for English courts is whether or not Mr. Monson knows or realises that ordinary people who are reasonable and honest would consider the Church’s actions to be dishonest. This is still a very tricky question, indeed.

What is the ‘ordinary standard of reasonable and honest people’?

That is the standard of the members of jury, twelve men and women selected at random from among ordinary people.  Therefore, their standard is relative to their social perception of honesty of their time. If their society is very sinical, even the Robin Hood standard of honesty might be approved. But presumably, English judges believe that the pendulum of justice of English middle class will never swing to that extreme.

How about the world’s more ‘ordinary’ religions? Take an example of the ‘immaculate conception’. I remember encountering a group of Muslim boys taking IELTS in Yorkshire in the early 1990s. I found their conduct very disturbing and their obsession with that which they called the ‘scientific sexual reality behind the Christian doctrine’ most unpleasant. Despite the particular manner in which their opinion was delivered, it was clear to me that they wanted to say that the immaculate conception was a lie, or false representation. However, when I realised that the victims of rape invariably thought themselves spoilt, stained and corrupted, I had another thought. It is courageous to tell the victims of such crimes firmly that they are clean and pure. The words may change the victims’ mind-set and may not. What is the truth then? What is honesty? If you are able to believe that you are clean and pure, that is the truth, is it not?

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