Righting another ‘wrong turn’? Dishonesty in Ivey v Genting: Part I
7 December 2017
This blog has previously featured a summary of the landmark judgment in Ivey v Genting Casinos (UK) Ltd  UKSC 67 and a post examining the dishonesty test now to be applied in criminal proceedings. Our analysis continues with two in-depth posts. In this, Part I, the background to the decision in Ivey is examined, along with a consideration of the Ghosh test and its operation in practice. In Part II, the academic criticism of Ghosh is discussed together with a brief account of the concept of dishonesty in the civil cases, and some reflections on the future application of Ivey in practice.
The case concerned a professional gambler who sued a casino for his winnings at a game of Punto Banco (£7.7 million). The issues arising before the Supreme Court included whether the concept of cheating at gambling necessarily required ‘dishonesty’ and, if so, what the proper test for dishonesty would be in the circumstances, namely the test applicable in civil or criminal proceedings. As Lord Hughes explained, the test of dishonesty in civil proceedings was whether the conduct was dishonest by the ordinary standards of reasonable and honest people (an objective test); the test in criminal proceedings, (pre-Ivey) was the two-limbed Ghosh test, namely: (i) whether the conduct was dishonest by the ordinary standards of reasonable and honest people; and, if so, (ii) whether the defendant knew his conduct was dishonest by those standards (an objective subjective test).
In the event, Ivey was decided on the basis that dishonesty formed no part of the concept of cheating. Accordingly, on one view, the discussion of dishonesty in the judgment might be said to be obiter and confined to the circumstances of a civil action. The better view, however, would seem to be that the judgment represents the current state of the criminal law on dishonesty and that the two-limb test in Ghosh has been overruled. Certainly that was the view expressed by the President of the Queen’s Bench Division in DPP v Patterson  EWHC 2820 (Admin) (at ): “It is difficult to imagine the Court ofAppeal preferring Ghosh to Ivey in the future.”
The judgment was the unanimous decision of a Court which included the President, future President, and the former Lord Chief Justice (Lord Neuberger, Lady Hale, Lord Kerr, Lord Hughes and Lord Thomas). The position on any future appeal to the Supreme Court is, to that extent, predictable and it is notable that Lord Hughes expressed himself in unambiguous terms: “directions based upon [Ghosh] ought no longer to be given” (at ).
It follows that the directions as formulated in the current edition of the Crown Court Compendium: Part I Jury and Trial Management and Summing Up (February 2017) (pp 8-16 to 8-19) would appear to have been superseded. There is no longer a requirement for any jury to consider the subjective state of mind of a defendant as to whether his conduct was dishonest or not.
Following Ivey, the entirety of the test of dishonesty in the criminal law is now objective. Juries are to be directed accordingly on a straightforward question: was the defendant’s conduct dishonest by the ordinary standards of reasonable and honest people? Whilst answering that question may take account of all the circumstances, as the jury find them to be (including the defendant’s state of knowledge, belief or suspicion), a defendant’s own evaluation of his conduct no longer forms part of the test.
Righting another wrong turn?
In abandoning the Ghosh test the Supreme Court has taken another step to clarify certain areas of doctrinal debate arising from decisions of the House of Lords and Privy Council in the early 1980s. Ivey sits alongside the seminal decisions in G v R  UKHL 50, resolving controversy as to the proper test of recklessness following R v Caldwell  AC 341; and R v Jogee, ‘righting’ a wrong turn in the test for parasitic accessorial liability derived from Chan Wing Siu v The Queen  AC 168).
The genesis of the controversy surrounding the Ghosh test can be traced at least to R v Feely  QB 530. Feely concerned the manager of a betting shop who took £30 from the till for his own purposes. This was contrary to his instructions, but he had a right of set-off for this amount in respect of money owed to him by his employer, so his employer was not placed at any financial risk. His conviction of theft was quashed because the trial judge had removed the issue of dishonesty from the jury.
The Court of Appeal decided that it was for the jury to determine whether what the defendant did was dishonest applying the current standards of ordinary decent people. This test was a notable departure from the test under the old law of larceny (prior to the Theft Act 1968) – which left the concept of ‘fraudulently’ as a matter for the judge – and from the practice envisaged by the drafters of the 1968 Act, in which the concept of dishonesty was expected to play only a minor role.
As a result of Feely, the criminal law relating to property offences changed significantly: it was now for a jury to decide on what constituted dishonesty by reference to the prevailing moral standards and whether the defendant had transgressed those standards.
In a number of cases that followed it was held that the jury were required to take into account not only the prevailing moral standards but also the defendant’s own opinion on whether he acted honesty: R v Gilks  1 WLR 1341; Boggelin v Williams  1 WLR 873; R v Landy  1 WLR 355.
This approach to dishonesty was disapproved in R v McIvor  1 WLR 409, where, in order to avoid the implications of the earlier decisions, it was held that in a case of conspiracy to defraud a different test was to be applied.
It was against this background that the Court of Appeal came to consider Ghosh.
The Ghosh test
In Ghosh, the Court of Appeal (Lord Lane CJ, Lloyd and Eastham JJ) held that in determining whether the prosecution has proved that a defendant was acting dishonestly involved a two-stage objective-subjective test. Lord Lane CJ stated (at paragraph 1064D):
“… 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. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.”
By introducing such a test, which looked first to the standards of reasonable and honest people and then to the defendant’s own state of mind, the Court of Appeal attempted a compromise. On the one hand it modified the objective test, as set out in Feely, which some considered to be overly harsh, but it avoided the purely subjective approach of Gilks, which some considered to create a thief’s charter.
As to when the direction was to be given requiring a jury to apply the test in Ghosh, the Court of Appeal clarified the position in R v Price (1989) Cr App R 409:
“… it is by no means in every case involving dishonesty that a Ghosh direction is necessary. Indeed in the majority of such cases, of which this was one, it is unnecessary and potentially misleading to give such a direction. It need only be given in cases where the defendant might have believed that what he is alleged to have done was in accordance with the ordinary person’s idea of honesty.”
Put another way, Price made clear that the Ghosh test was in fact only to be applied by juries in circumstances where the second limb of the test arose for consideration, namely the defendant’s evaluation of whether his conduct was aligned with general standards of morality.
It is right to note that in practice, the Ghosh direction is now most frequently given in cases involving complex financial frauds. In such cases it has commonly been a live issue whether, for example, a trader in esoteric financial instruments believed that what he or she was doing was dishonest by the standards of ordinary people given the conduct in which he or she engaged was widespread within the industry.
Part II will be published next week.