CONCEPTS IN CRIMINAL LAW - dishonesty

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Good criminal solicitors will be aware that the concept of Dishonesty is one of the central foundations of many offences in English Law. 

For over 30 years the approach to the concept of dishonesty was determined by the guidance in  R v Ghosh [1982] QB 1053 .  In 2017, in the case of  Ivey v Genting Casinos (UK) (trading as Cockfords Club) [2017] UKSC 67, the Supreme Court gave the opinion that Ghosh may have been wrong and why and that in future the courts should adopt the approach taken in Ivey. In the appeal case of  David Barton & Rosemary Booth [2020] EWCA Crim 576, the Court of Appeal confirmed the position in a binding judgement that the position in Ivey was the correct approach.

In Ghosh, the test for determining dishonesty was stated to be:

“...  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 must have realised that what he was doing was by those standards dishonest.  …”

This can be summarised as a two-fold test:

1. was the defendant’s conduct dishonest by the ordinary standards of reasonable people? and if so
2. did the defendant appreciate that his conduct was dishonest by those standards?  

The Court of Appeal rejected this in Ivey and proposed an alternative two-stage test:

1. what was the defendant’s actual state of knowledge or belief as to the facts; and 
2. was his conduct dishonest by the standards of ordinary decent people?