The Court of Appeal in R v Barton and Booth [2020] EWCA Crim 575 has held that the objective test for dishonesty as per Ivey is to be used in criminal proceedings instead of the objective/subjective test set out in Ghosh.
The Ghosh standard is:
- Was the defendant’s conduct objectively dishonest by the standards of reasonable and honest people, and;
- If so, did the defendant realise that his conduct was dishonest by the standards of those same people?
The loophole for this was that it depended heavily on whether the defendant knew his behaviour was dishonest, meaning those with lower moral standards had more leeway to escape conviction.
Ivey on the other hand has a different formulation:
- 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?
In this Barton case, the appellants were said to have exploited vulnerable residents in the case home in order to obtain benefits such as large gifts. Barton and Booth’s case was that the gifts were genuine or legitimate fees. The original conviction had used the standard in Ivey, and the issue was whether the test in Ivey was supposed to supersede Ghosh. The Court held that even though the test in Ivey was obiter, meaning it was said in passing, it still amounted to a ‘direction’ from the Supreme Court, and therefore was binding upon them.
The wider implication is that in dishonesty cases, the pendulum has now swung more against the defendant, as Ivey is based more on the actual conduct itself, and less on culpability.
For any legal questions or matters arising please contact Audley Chaucer.
Alina Dewshi
