Dishonesty: A Change of Approach

Wed, 05 Aug 2020

On 29th April 2020, following the decision in the case of R v Barton and Booth [2020] EWCA Crim 575, the Court of Appeal identified that the two-limb test for dishonesty as identified in the case Ghosh, is no longer the approach to be taken.

The Court of Appeal identified that the previous approach identified in the case of Ivey v Genting Casinos (UK) [2017] UKSC 16 was the correct approach to be taken, and as such indicated that the two-part test previously adopted in Ghosh is now to be superseded.

In the case of Ivey, the defendant was a professional gambler who issued proceedings against the Casino on the basis that they withheld funds on account that they believed he was cheating. Whilst comments provided were obiter, these were closely considered, and adopted by their Lordships in the Court of appeal.

The two-part test namely; was the act dishonest according to the ordinary standard of a reasonable and honest person; and if so did the defendant believe that other reasonable individuals would consider the action was dishonest'.

As such an individual can no longer raise the defence that they believe the conduct to be dishonest. The test now to be applied as per Ivey is:

What was the defendants actual state of knowledge or belief of the facts; and

Was the conduct dishonest by the standards of ordinary and decent people?

The development in law has soon brought both the civil and criminal test in line with one another, and as such the test is now whether a reasonable person would consider the act to be dishonest.

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