The Court Of Appeal Has Confirmed The Test For Dishonesty In Criminal Proceedings

• Published date: 06 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: Clyde & Co
• Author: Mr Richard Harrison

The Court of Appeal has confirmed that the test for dishonesty in criminal cases is the test set out (obiter) by the Supreme Court in Ivey v Genting, and not that in its own longstanding decision in R v Ghosh. As a result, lawyers are at a greater risk of findings of dishonesty in a criminal context.

Background

Since 1982, the test for dishonesty in criminal proceedings has been the test set out by the Court of Appeal in R v Ghosh [1982] QB 1053:

1. Was the Defendant's conduct dishonest by the ordinary standards of reasonable and honest people? and
2. If so, must the Defendant have realised that his conduct was dishonest by those standards?

However in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, Lord Hughes in the Supreme Court (with whom the rest of the Court unanimously agreed) - speaking obiter - criticised the Ghosh test, holding that it "does not correctly represent the law and directions based upon it ought no longer to be given". He said that the test set out in Royal Brunei v Tan [1995] 2 AC 378, as clarified by the Privy Council in Barlow Clowes v EuroTrust [2005] UKPC 37, should be used in all cases as "there can be no logical or principled basis for the meaning of dishonesty (as distinct from the standards of proof by which it must be established) to differ according to whether it arises in a civil action or a criminal prosecution". He explained the test as follows:

1. What was the Defendant's actual state of knowledge or belief as to the facts? and
2. Was the Defendant's conduct dishonest by the standards of ordinary decent people?

This test was part of a discussion of dishonesty in the case which was not necessary for the Supreme Court's decision and was therefore obiter dicta. But it left uncertainty as to which test should then be applied in criminal cases - the test set out obiter by the Supreme Court in Ivey or the strictly binding precedent of the Court of Appeal in Ghosh.

Decision - modification of the rules of precedent

The Court of Appeal in Barton has now resolved this uncertainty in favour of the test in Ivey, which it held should be applied in all criminal cases.

The Court emphasised the importance of the rules of precedent, noting that they "provide legal certainty which is a foundation stone of the administration of justice". However they must in certain circumstances "be capable of flexibility to ensure they do not become self-defeating".

It concluded that where the Supreme Court itself directs - as it did in Ivey - that an otherwise...