Clarification of “dishonesty” in criminal law: Barton and Booth v R  EWCA Crim 575
In this landmark decision, the Court of Appeal (Criminal Division) has confirmed that the correct approach to ‘dishonesty’ in criminal law is that said in passing (known by lawyers as obiter dicta) by Lord Hughes in the Supreme Court three years ago in a civil case concerning card counting in a casino (Ivey v Genting Casinos (UK) (trading as Crockfords Club)  UKSC 67).
Barton was the owner and manager of a luxury nursing home. Booth was the General Manager. The Crown’s case was that, over many years, Barton dishonestly targeted, befriended, and “groomed” wealthy, vulnerable and childless elderly residents for financial benefit, approximately £4,130,000. Following a twelve-month trial at Liverpool Crown Court, Barton and Booth were convicted of conspiracy to defraud, and Barton of further offences of theft, fraud, false accounting and money laundering.
At trial, the Judge had directed the jury to apply the dishonesty ‘test’ as re-formulated by the Supreme Court in the Ivey case. The central question in the Barton appeal concerned whether the Crown Court had been correct to do so.
The appellants submitted that the Ivey test was non-binding and the correct test to apply when considering dishonesty remained as set out in R v Ghosh  QB 1053. This two-stage test that has applied to criminal dishonesty for 35 years:
1. Was the defendant’s conduct dishonest by the ordinary standards of reasonable people?
2. And if so, did the defendant appreciate that his conduct was dishonest by those standards?
In Ivey, Lord Hughes explained the key problem with this test was the second limb that created an unintended consequence which meant that the more warped a defendant’s standards of behaviour, the less likely that he will be convicted of dishonest behaviour. The Supreme Court described the correct test for dishonesty as follows:
1. What was the defendant’s actual state of knowledge or belief as to the facts?
2. And was his conduct reasonable by the standards of ordinary decent people?
The appellants in the Barton appeal relied upon the doctrine of precedent and submitted that the decision in Ivey was strictly obiter and therefore the Ghosh test still applied.
Court of Appeal decision
In Barton and Booth, a powerfully constituted Court concluded that precedent dictates that it is obliged to follow the decisions of the Supreme Court, even when obiter, provided all the judges in the appeal in the Supreme Court agree that is to be the effect of the decision. Accordingly, the Court determined that it was bound to follow the formulation in Ivey as the correct test to apply when considering dishonesty in criminal law.
The decision of the Court was not a surprise given the incisive and unassailable critique of Ghosh by Lord Hughes in Ivey. The judgement is though momentous and comparable in effect to the Supreme Court re-setting of three decades of law on criminal liability for secondary parties in R v Jorgee  UKSC 8.
It is worth noting that the guidance provided to Crown Court judges, who have to direct juries, makes clear that it will rarely be necessary to give a direction about dishonesty beyond referring to it as a requirement of the offence concerned.
Where a direction must be given, the effect of Barton and Booth (applying Ivey) is that the question of dishonesty is an objective one. The defendant’s own view of the matter, if the jury accept it, is not determinative since there is no requirement for the prosecution to show that the defendant personally recognised that the conduct was dishonest.
The Ghosh subjective second limb is well and truly shut and defence practitioners will have to be alive to this new reality at the earliest stage of cases and especially when confronted with clients who wish to place reliance on their own questionable probity.