Dog-Law And Dishonesty

The Senior Law Lord (as he then was) Lord Bingham of Cornhill was not above quoting Jeremy Bentham's criticism of judge-made criminal law, which he called "dog-law", in his 1792 polemic Truth versus Ashurst:

It is the judges (as we have seen) that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won't tell a man beforehand what it is he should not do - they won't so much as allow of his being told: they lie by till he has done something which they say he should not have done, and then they hang him for it.

Lord Bingham used Bentham's line in articulating the guiding principle - which is also enshrined within Article 7 of the European Convention on Human Rights - that "no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done."

Most dishonesty offences will rarely fall foul of this principle. As Lord Hughes put it in Ivey v Genting Casinos [2018] A.C. 391, "whilst there have undoubtedly (and inevitably) been examples of uncertainty or debate in identifying whether some conduct is dishonest or not, juries appear generally to have coped well with applying an uncomplicated lay objective standard of honesty to activities as disparate as sophisticated banking practices (for example R v Hayes [2018] 1 Cr App R 10) and the removal of golf balls at night from the bottom of a lake on a private golf course: R v Rostron [2003] EWCA Crim 2206."

But how should dishonesty be approached when organisations or entire industries develop their own standards of behaviour which might be alien to the ordinary standards of reasonable and honest people? In both Hayes and Merchant & Matthew, the Court of Appeal found that the standards of the market in which the defendants were operating was irrelevant to the first limb (i.e. to determining the ordinary standards of reasonable and honest people).

As the Court of Appeal put it in Hayes: "The history of the markets have shown that, from time to time, markets adopt patterns of behaviour which are dishonest by the standards of honest and reasonable people; in such cases...