Supreme Court Resets The Criminal Law Test For Dishonesty

On October 25, 2017, a five-judge Supreme Court unanimously confirmed that the two limb Ghosh test for assessing dishonesty in criminal proceedings should be replaced by a purely objective test. This is a very significant development in criminal law.

By way of background to the case, Mr. Ivey was a professional gambler who brought a claim against a casino for winnings of £7.7 million in a game of baccarat. The casino disputed Mr. Ivey's entitlement to his winnings on the basis that he had used a highly specialised technique called "edge sorting" in order to improve his chances of winning which, the casino contended, amounted to cheating. The proceedings came before the Supreme Court which was asked to consider (i) the meaning of cheating in a gambling context, (ii) whether dishonesty was a necessary element of cheating and, if so, (iii) the correct test for assessing dishonesty. Regarding the test for dishonesty, in criminal cases juries have previously been directed to apply the two stage test introduced by R v Ghosh [1982] QB 1053:

Was the relevant conduct dishonest by the objective standards of reasonable and honest people? This is known as the objective test. If the answer to the objective test is "yes", did the defendant realise that reasonable and honest people would regard the relevant conduct as dishonest? This is known as the subjective test. Lord Hughes' judgment criticised the subjective test under Ghosh, noting its effect was that the more warped the defendant's standards of honesty, the less likely it is that he will be convicted of...