The debate about the two-pronged Ghosh test for dishonesty has troubled academics and practitioners alike for some time. Concerns were raised about the jury’s ability to determine both the objective honesty standards and the defendant’s personal compliance with it, which might result in non-meritorious personal views allowing her to escape a dishonesty verdict. In Ivey, followed by Barton and Booth, the subjective test was abandoned altogether. The change has brought no doctrinal improvement, but instead unacceptably broadened criminal liability. Leaving the determination of a nebulous moral concept such as dishonesty to the jury is misguided, as it means determining a normative rule in the first place, which is not the jury’s role. Looking at the German law on theft and fraud as a comparator system, the paper argues that dishonesty should be abandoned and replaced by a lawfulness element to which the rules on mistake of civil law can then be applied.

关于不诚实的双管齐下的Ghosh测试的争论已经困扰了学术界和从业者一段时间。人们对陪审团确定客观诚实标准和被告个人遵守标准的能力表示担忧，这可能会导致不合理的个人观点使她能够逃避不诚实的判决。在Ivey，其次是Barton 和 Booth，主观测试被完全放弃。这一变化并没有带来理论上的改进，而是令人无法接受地扩大了刑事责任。将诸如不诚实之类的模糊道德概念的决定留给陪审团是一种误导，因为这意味着首先要确定规范性规则，而这不是陪审团的职责。将德国关于盗窃和欺诈的法律视为比较系统，本文认为应该放弃不诚实行为，代之以合法性要素，然后可以适用民法过失的规则。