Goodbye Ghosh - Case Comment on Barton & Booth-v-The Queen [2020] EWCA Crim 575

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Last week the Court of Appeal handed down Judgment in the case of Barton & Booth-v-The Queen [2020] EWCA Crim 575. This Judgment confirmed that the Ghosh Test for ‘dishonesty’ was no longer to be followed in criminal cases, and instead the test is now that as set out in Ivey -v- Genting Casinos (UK) (trading as Cockfords Club) [2017] UKSC 67

The Law

The Ghosh Test was derived from the case of R -v- Ghosh [1982] EWCA Crim 2. The case enunciated the test for dishonesty in criminal proceedings and was particularly relevant in relation to offences pursuant to the Theft Act 1968 and Fraud Act 2006. The Judgment in Ghosh relied heavily upon the principle that for a defendant to be found to have acted dishonestly, it must depend upon their state of mind at the time of offending.

The ‘Ghosh’ Test for dishonesty was a two-stage test which asked the following:

Was the defendant’s conduct dishonest by the ordinary standards of reasonable people? If so;
Did the defendant appreciate that their conduct was dishonest by those standards?

It has widely been acknowledged by many practitioners and academics that the second question created difficulties for juries. It is unsurprising that 12 people will have a different idea of what conduct amounts to being dishonest, and in any event they had to evaluate the actions of a defendant by the defendant’s perception of dishonesty. For example, if a defendant believed in ‘Robin Hood’ ideals (robbing the rich to pay the poor) and did not consider that to be dishonest by the ordinary standards of reasonable people, under the Ghosh Test the defendant should have duly been acquitted. Such subjectivity was difficult for juries to grapple with. This was the position for 35 years.

In 2017, the Supreme Court passed judgment in the case of Ivey. It was widely considered at the time that this spelt the end for the Ghosh Test, however Ivey concerned the civil jurisdiction, and it was not known what direction the criminal jurisdiction would take in relation to dishonesty.

The Ivey Test for dishonesty is similarly a two-stage test that asks the following:

What was the defendants actual state of knowledge or belief as to the facts; and
Was their conduct dishonest by the standards of ordinary decent people?

The Supreme Court made clear in relation to the first limb, juries must first subjectively decide the actual state of the defendant’s knowledge or belief of the fact. It does not matter whether the defendant holds a reasonable belief, just simply if it is genuinely held. If a jury does find this, then they move onto the second limb.

The second limb then asks the jury to take that view and consider whether the conduct of the defendant was dishonest on an objective view of what ‘ordinary decent people’ would think. Importantly, it is not a requirement for a defendant to realise that their actions are in fact, by those standards, dishonest.

It is now clear from the judgment in Barton & Booth -v- The Queen that the Ivey Test is to be followed in criminal cases and juries should be directed on the Ivey Test accordingly.

Practical Implications for clients

This appears to be a change in the law which is far more likely to impact clients at court, rather than in the Police Station or investigation stage. It will be interesting to see how police interviews for offences concerning dishonesty now develop, and what line of questioning the new formulation of the dishonesty test may take in interview. It is possible that lengthy questions surrounding dishonesty may simply disappear, as the new test is no longer defendant centric.

In more complex investigations, such as those being conducted by the Serious Fraud Office (SFO), the change is vital. The shift from subjectivity to objectivity makes it significantly easier for all prosecutorial parties to formulate their case, and can simply use the fact of dishonest actions, agreements or transactions, rather than having to invest vast time and resources into the motivation behind said agreements. This is particularly important to consider whilst a business conducts an internal investigation into wrong-doing, as such remarks that ‘in hindsight’ conduct was dishonest will assist the prosecution greatly as this will now amount to an objective concession that such conduct was dishonest.

Defendants may now find it difficult to avoid being convicted of offences where they genuinely believe that, on their own view, their actions were not dishonest. It presents a shift away from the view of the individual to the view of society. It also presents a much simpler formulation of the law and it is likely that the Prosecution will find it easier to prove their case to the Jury.

In these already uncertain times, it remains to be seen what will happen to existing cases which contain an element of dishonesty. The Court will have to consider the impact this change has on any Defence Statements that have already been served, and if in light of this Judgment a defendant wishes to change their plea. This is an important consideration, as the issue of credit for an early guilty plea will need to be considered, although it is arguable that if a not guilty plea was solely based upon a denial of dishonesty, a court may be minded to allow for full credit as this would be the ‘first available opportunity’ to plead guilty following the abandonment of Ghosh.

Whilst this is a considerable change in the law in relation to dishonesty, is does now bring the law in line with that of other offences where the actions are considered against an ‘ordinary reasonable person’ rather than placing yourself in the mind of the defendant. Last week’s Judgment won’t affect traditional defences to defendants, it will simply create difficulties for defendants who sought to advance ‘robin hood’ defences, or defences based on their own concept of dishonesty.

Examples of offences which will be affected by this change are as follows: