The Test For Dishonesty In Criminal Cases ' Ghosh Gone, Ivey Confirmed

• Published date: 21 May 2020
• Author: Mr Richard Sallybanks and Ami Amin
• Subject Matter: Litigation, Mediation & Arbitration, Criminal Law, Trials & Appeals & Compensation, Crime
• Law Firm: BCL Solicitors LLP

In the recent case of Barton and Booth v R [2020] EWCA Crim 575, a five-judge Court of Appeal has confirmed the test for dishonesty to be used in criminal cases. The law in this area had been in a state of uncertainty following comments by the Supreme Court in a civil case, Ivey v Genting Casinos [2018] A.C. 391, that the two-stage Ghosh test for dishonesty, which had been applied for over 35 years, no longer represented the correct approach.

As practitioners in this area will know, the two-stage test for dishonesty in R v Ghosh [1982] QB 1053 required a jury first to determine whether the accused had been dishonest according to the ordinary standards of honest and reasonable people (the 'objective test') and, if the answer to that first question was yes, to go on, secondly, to consider whether the accused had realised that what he or she was doing was dishonest by those standards (the 'subjective test').

However, the Supreme Court in Ivey (a case concerning cheating in a casino) sought to clarify "why the law had taken a wrong turn in Ghosh." In comments forming part of the obiter dicta (therefore essentially expressions of opinion not legally binding as precedent) Lord Hughes set out that the correct approach to assessing dishonesty is the first limb of the Ghosh test, i.e. the objective test, and that it was not relevant to apply the second limb of the Ghosh test, i.e. the subjective test.

The Court of Appeal judgment in Barton and Booth brings this uncertainty to an end.

Background

David Barton ran a luxury nursing home. The case against him was that he dishonestly exploited his relationship with vulnerable elderly residents by befriending and grooming them, ultimately to profit from their wealth. A number of residents made Barton the residuary beneficiary of their wills, allowed him to assume control of their finances, gave him large cash gifts, overpaid for services and paid fees that were vastly in excess of what would be reasonable, or were sometimes entirely fabricated. Rosemary Booth was the general manager of the home and was alleged to have abused her trusted position to act as the 'eyes and ears' to assist Barton in the fraudulent activity.

Following a trial which concluded in 2018, Barton was convicted of 10 counts consisting of four counts of conspiracy to defraud contrary to common law, three counts of theft, one count of fraud, one count of false accounting, and one count of transferring criminal property. Booth was convicted on three...