Barton & Booth: Clarifying the Dishonesty Test post Ivey by Paul Dormand
Fri 1st May 2020
The decision in Barton & Booth  EWCA Crim 575 brings an end to the uncertainty surrounding the test for dishonesty, and the application of the test proposed by the Supreme Court in Ivey v Genting Casinos (UK) (trading as Cockfords Club)  UKSC 67. This article will look at the departure from Ghosh, the application of the Ivey test notwithstanding its obiter status.
David Barton and Rosemary Booth ran a nursing home in Southport. They were convicted of several counts of theft, conspiracy to defraud, and other dishonesty offences which all concerned the exploitation of their relationships with various residents at the home. In total, Mr Barton obtained approximately £4,130,000 from his offending, and attempted to obtain a further £10 million from the estate of one vulnerable resident.
David Barton was sentenced to a total of 21 years imprisonment, and Rosemary Booth to 6 years imprisonment. They appealed the convictions on 8 grounds (all of which were unsuccessful), but the primary ground related to dishonesty:
“In particular, does Ivey provide the correct approach to dishonesty
and, if so, is it [to] be followed in preference to the test described
in Ghosh?” [Para 79]
R v Ghosh  QB 1053 was, for 35 years, the governing decision for dishonesty cases. It provided the following two-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?”
The Supreme Court’s criticism in Ivey centred upon the second limb of the Ghosh test, and the following problems were identified (at para 57):
“(1) 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.
(2) It was based on the premise that it was necessary in order to give proper effect to the principle that dishonesty, and especially criminal responsibility for it, must depend on the actual state of mind of the defendant, whereas the rule is not necessary to preserve this principle.
(3) It sets a test which jurors and others often find puzzling and difficult to apply.
(4) It has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test of the same concept when it arises in the context of a civil action.
(5) It represented a significant departure from the pre-Theft Act 1968 law, when there is no indication that such a change had been intended.
(6) Moreover, it was not compelled by authority. Although the pre-Ghosh cases were in a state of some entanglement, the better view is that the preponderance of authority favoured the simpler rule that, once the defendant’s state of knowledge and belief has been established, whether that state of mind was dishonest or not is to be determined by the application of the standards of the ordinary honest person, represented in a criminal case by the collective judgment of jurors or magistrates.”
Ghosh created a situation whereby the word dishonest held one meaning in civil proceedings, and another in criminal proceedings. The Supreme Court in Ivey considered that ‘there can be no logical or principled basis” for that difference. An alternative two-stage test was therefore proposed:
“(a) what was the defendant’s actual state of knowledge or belief of the facts; and (b) was his conduct dishonest by the standards of ordinary decent people?”
It was this test which was applied by the court in Barton & Booth.
The status of Ivey
The problem with the test in Ivey was that the Supreme Court’s discussions of dishonesty, and therefore the test which was formulated, are strictly obiter dicta. Ivey concerned a professional gambler who won a substantial sum of money playing the card game Punto Banco. He deployed a technique known as ‘edge sorting’, which the casino argued was cheating. As the Supreme Court was required to consider whether the conduct was cheating, it concluded that it was not necessary to decide whether he had been dishonest.
The appellants argued in Barton that a strict application of the stare decisis doctrine meant that the test in Ghosh was precedent and should be followed. The Court of Appeal rejected this argument by reference to R v James; R v Karimi  QB 588;  EWCA Crim 14. James considered whether the correct statement of the law of provocation was found in a House of Lords decision, or a subsequent Privy Council decision. Lord Phillips found that the Privy Council decision overruled the House of Lords decision, a conclusion which was justified as follows:
- The Law Lords in the Privy Council (even those who dissented) agreed the decision clarified English Law;
- The majority of the Privy Council constituted half the Appellate Committee of the House of Lords; and
- The result of an appeal to the House of Lords was a foregone conclusion.
The Court of Appeal in Barton found themselves in a ‘strongly analogous position’, and that the Supreme Court in Ivey had clearly altered the established common law approach to precedent. They therefore found that the test for dishonesty in all criminal cases is that established in Ivey.
It should be noted that this does not amount to a fundamental tearing up of the doctrine of precedent. The Court of Appeal made it clear: ‘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.’ This does not solve every issue post Ivey but it does at least resolve the issue of the application of the Ivey test over the Ghosh test. A summary of the issues following Ivey can be found in the UK Supreme Court Yearbook 2018 Volume 9.
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