It was in 1982 that the Court of Appeal gave a decisive ruling which shaped the legal definition of dishonesty, in Criminal practice at least, for over three decades. R v Ghosh [1982] EWCA Crim 2, whilst presently the subject of pithy puns and article titles across the legal blogger-sphere, provided the two-stage test in relation to dishonesty. On 25th October 2017 the Supreme Court of England and Wales unanimously declared that the second limb of the test was no long a correct representation of the law. This article will analyse the extent to which the judgment in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC Civ 1093 has adapted the law in practice and whether the removal of the second limb is merely a ‘juicy’ topic for academic discussion.
The law under Ghosh
When assessing the issue of dishonesty the court and jury had to consider a two-limbed test. The first limb was an objective test and posed the question whether the conduct complained of was dishonest on the standards of a reasonable and honest person. If the answer to this question was yes then the tribunal of fact would turn to consider the subjective limb of whether the Defendant realised that an ordinary and honest person would regard his behaviour as dishonest.
If a tribunal of fact was sure that the answer to both limbs was yes it could be concluded that the actions were dishonest.
In order to fully appreciate the changes brought about by the Supreme Court’s judgment, if any, it is necessary to take a closer look at the practical applications of this test.
Given the inherent nature of an abstract concept such as dishonesty, it was often a complaint that jurors would have difficulty with the second limb of this test. This may be because of the delicate distinction between the two limbs. After all, there are surely very few instances where an act is recognised as dishonest by a reasonable and honest person but would not have been so recognised by the Defendant.
The second limb arguably creates a sliding scale of dishonesty, leaving the jury to grapple with the varying levels of morality particular to the Defendant in front of them. Similarly, it follows that ‘the more warped the Defendant’ standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour’ [Paragraph 58]. This exacerbates the confusion of lay people because it is surely absurd that an act which is so clearly dishonest objectively is not dishonest subjectively.
A new test?
The Supreme Court have seemingly created a ‘new’ test for dishonesty, however it should be noted that the concept for the new criminal test seems to have its origins in the civil sphere.
The definitive test for dishonesty, seemingly assimilating crime with its civil sister, is set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes
“although a dishonest sate of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree”
It would seem, although perhaps a simplistic analysis, that the subjective limb of the Ghosh test, with which all criminal practitioners are accustomed, has been culled. The direction which will now be give to juries will simply require them to consider whether a reasonable and honest person deemed the actions of the Defendant to be dishonest.
Many critics of this ruling have stated that the unification of a definition in two polarising areas of practice is dangerous. The civil and criminal law work to different purposes, different standards of proof and different powers of redress. It therefore follows that the test for establishing dishonesty should differ to suit their respective purposes.
Conversely, it is argued that a definition for a word, which transcends almost all aspects of the law, should have a universal test, enabling consistency and avoiding absurdity.
The reality is this test, albeit new to crime, is not a revolutionary change. Indeed, the test has simply been imported from civil law. Further, in view of the convoluted nature of the subjective limb of Ghosh, it is highly probable that jurors would simply convict on the strength of the first limb, rather than tussle with the second limb. This ‘change’ in law seems to bring clarity and impart a test which does not comprise of a redundant and confusing limb.
It is clear that this represents a change in the long established criminal test, the impact of this ruling, at this stage however, can only be mooted and the wider implications to this new test are yet to be seen and fully understood.
Joshua Purser
Pupil Barrister
