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The Court of Appeal confirms the correct test for dishonesty by Francesca Whebell

4th May 2020

The Court of Appeal confirms the correct test for dishonesty.

Criminal and Civil barrister Francesca Whebell (2011) sets out the Court of Appeal’s decision on the correct test to apply when considering dishonesty following the case of  R v Barton and Booth [2020] EWCA Crim 575.

The Criminal Division of the Court of Appeal dismissing the appeal of Barton and Booth has given judgement on the correct test for dishonesty as it applies to all criminal offences in English law and modified the common law of precedent.

The test to apply to cases of dishonesty had been well established for 35 years by case of R v Gosh  [1982] QB 1053; becoming known as the Ghosh test. It provided for a 2 stage test:

 

 (a) Was the defendant’s conduct dishonest by the ordinary standards of reasonable people? If so,

 (b) Did the defendant appreciate that his conduct was dishonest by those standards?

 

This put the emphasis upon the defendant’s understanding of the standards rather than society, a reason the decision was often criticised.

Despite the criticisms levied at the test it remained unaltered in English law until an appeal heard by the Supreme Court involving a civil dispute in the case of Ivey v Genting Casinos [2017] UKSC 67. Giving the main judgment Lord Hughes set out a number of problems with the Ghosh test including the difference it provided in the test to be applied between criminal and civil proceedings and the departure it had made from pre Theft Act 1968 case law. The proposed new 2 stage test was as follows:

(a)What was the defendant’s actual state of knowledge or belief as to the facts; and
(b) Was his conduct dishonest by the standards of ordinary decent people?

The Court made it clear that Ghosh should no longer be applied and the indication was reflected in the Crown Court Compendium along with Archbold and Blackstones. The picture so far appeared clear however, the comments made in regards to the dishonesty test were all made obiter and as such the question was raised was the new test binding?

One of the grounds of appeal in Barton and Booth challenged the following of the new test set out by Ivey, advancing that the Ghosh test was correct to be applied and should have been given in directing the jury. Giving Judgment the Lord Chief Justice, Lord Burnett of Maldon made it clear the test in Ivey was to be applied. Regarding it being made in obiter and the issue of whether it was binding he set out as follows at paragraph 104:

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.

Although a modification to precedent it is clearly confined to this particular set of circumstances and as noted by the Court has been done in other cases.

It is now clear that the modified 2 stage test will be applied in cases moving forward, the issue that is likely to arise is those cases which have followed the Ghosh test in the interim. It remains to be seen what impact, if any, the shift to dishonesty being assessed by reference to society’s standards rather than the defendant’s understanding of those standards has.

The full judgement can be accessed here: http://www.bailii.org/ew/cases/EWCA/Crim/2020/575.html

If you wish to discuss this, or any other case with Francesca, please contact her clerk Colin Palmer on 01752 221551 or colin@kbgchambers.co.uk

 

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The Court of Appeal confirms the correct test for dishonesty by Francesca Whebell