Clarification of the Test for Dishonesty in Criminal Law: R v David Barton and Rosemary Booth  EWCA Crim 575Julian Jones
Case comment by Julian Jones
In this landmark decision, a five – judge constitution of the Court of Appeal (Criminal Division), headed by the Lord Chief Justice of England and Wales, clarified that the test for dishonesty in criminal law is that set out by Lord Hughes in the Supreme Court authority of Ivey v Genting Casinos (UK) (trading as Cockfords Club)  UKSC 67;  AC 391. This test is to be preferred to the test of the Court of Appeal Criminal Division in R v Ghosh  QB 1053.
The judgment of the Court in Barton can be viewed here:
The Ghosh Test
The two-stage in Ghosh may be summarised as follows:
- 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. …”
The test in Ghosh was the subject of significant academic criticism over the years, not least because, as Lord Hughes observed in Ivey, it has the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour.
The Ivey Formulation
By way of contrast, the Ivey formulation was as follows:
- What was the defendant’s actual state of knowledge or belief as to the facts?
- Was his conduct dishonest by the standards of ordinary decent people?
Barton: The Question the Court had to Determine
The difficulty facing courts and practitioners since Ivey, was that the remarks in that case were obiter. The consequences of that position, and the competing arguments of the parties, were considered in Barton by the Lord Chief Justice at paragraphs 93 – 103.
In a clear statement of principle the Lord Chief Justice set out the Court’s conclusions at paragraph 104. They are as follows:
“We conclude that where the Supreme Court itself directs that an otherwise binding decision of the Court of Appeal should no longer be followed and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court even though it is strictly obiter. To that limited extent the ordinary rules of precedent (or stare decisis) have been modified. We emphasise that this limited modification is confined to cases in which all the judges in the appeal in question in the Supreme Court agree that to be the effect of the decision. Such was a necessary condition before adjusting the rules of precedent accepted by this court in James in relation to the Privy Council. Had the minority of the Privy Council in Holley not agreed that the effect of the judgment was to state definitively the law in England, it would not have been accepted as such by this court. The same approach is necessary here because it forms the foundation for the conclusion that the result is considered by the Supreme Court to be definitive, with the consequence that a further appeal would be a foregone conclusion, and binding on lower courts”.
This case, it is submitted, clearly and conclusively resolves the issue and makes clear that the test for dishonesty is that set out in Ivey.
A clear indication of how the test works in practice was given in paragraph 108 of the judgment in Barton:
“This approach, which was the approach of the Supreme Court in Ivey, makes clear that when Lord Hughes talked in  of the “actual state of mind as to knowledge or belief as to the facts” [our emphasis] he was referring to all the circumstances known to the accused and not limiting consideration to past facts. All matters that lead an accused to act as he or she did will form part of the subjective mental state, thereby forming a part of the fact-finding exercise before applying the objective standard. That will include consideration, where relevant, of the experience and intelligence of an accused. In an example much used in debate on this issue, the visitor to London who fails to pay for a bus journey believing it to be free (as it is, for example, in Luxembourg) would be no more dishonest that the diner or shopper who genuinely forgets to pay before leaving a restaurant or shop. The Magistrates or jury in such cases would first establish the facts and then apply an objective standard of dishonesty to those facts, with those facts being judged by reference to the usual burden and standard of proof”.
It may very well be the case that this decision comes to be viewed not only as an important one in terms of the law of dishonesty, but also in terms of the basic principles of precedent. Time will tell.
Park Square Barristers
30th April 2020
Julian is a specialist in serious and complex crime. He is instructed for the prosecution and defence in approximately equal proportions. He appears as leading junior counsel, sole counsel, and is led by Queen’s Counsel.