Since the case of R v Ghosh  3 WLR 110, the test for dishonesty, which the Prosecution was required to meet when seeking the conviction of a Defendant, could be summarised as:
‘a jury must first of all decide whether according to the ordinary standards of reasonable and honest people, what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself realised that what he was doing was dishonest by those standards dishonest’
However, the second part of this long-standing test which provides ‘then the jury must consider whether the defendant himself realised that what he was doing was dishonest’ no longer applies following the decision in Ivey v Genting Casinos (UK) (trading as Crockfords Club) , which was reaffirmed in the case of R v Barton and Booth .
Sukhdip Randhawa of Kangs Solicitors explains this significant change.
Kangs Solicitors, which has been defending clients facing criminal charges since inception over twenty years ago, is rated as one of the best criminal law firms in the country and is ranked in both the leading legal directories, Chambers & Partners and Legal 500.
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The Circumstances | Kangs Court of Appeal Solicitors
In Ivey v Genting Casinos, a professional gambler appealed to the Supreme Court against a decision upholding that a casino could refuse to pay him winnings of seven million seven hundred thousand pounds on the basis that he had cheated.
That Court took the opportunity to review the history of the test of dishonesty and, at which time, Lord Hughes explained that the court identified serious problems with the second leg of the previously accepted test in R v Ghosh, as highlighted above, to the extent that it:
- has the unintended effect that the more warped the defendant’s standard of honesty, the less likely it is that he will be convicted of dishonest behaviour,
- was based on the premise that if was necessary, in order to give proper effect to the principle that dishonesty, especially criminal responsibility, must depend upon the actual state of mind of the defendant, whereas the rule is not necessary to preserve this principle,
- accepts a test which jurors and others often find puzzling and difficult to apply,
- has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test for dishonesty in civil proceedings,
- represents a significant departure from the law prior to the Theft Act 1968 where there is no indication that such a change had been intended,
- was the better view that the application of the standards of the ordinary, honest person, represented in a criminal case by the collective judgment of jurors or magistrates should be applied.
Consequences of The Supreme Court Decision | Kangs Supreme Court Solicitors
The court disapproved of the decision in R v Ghosh, indicated that the second leg of the test, as highlighted above, did not correctly represent the law and that Directions based upon it by a Trial Judge would no longer be given.
In future, a court must first subjectively ascertain the actual state of the defendant’s knowledge or belief as to the facts. Thereafter, the question as to whether the conduct was dishonest is to be determined by fact finding by applying the objective standards of ordinary decent people.
Accordingly, there is no longer a requirement that the defendant must appreciate that what he had done, is by those standards, dishonest and the Supreme Court proposed an alternative test to replace that which had been discarded questioning:
- the defendant’s actual state of knowledge or belief as to the facts; and
- whether or not his conduct was dishonest by the standards of ordinary decent people.
The Court of Appeal Judgment in R v Barton and Booth reaffirmed this decision thereby bringing certainty to the manner in which dishonesty is to be determined in future.
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