Righting another ‘wrong turn’? Dishonesty in Ivey v Genting: Part II
10 December 2017
In this second of two posts (the first can be found here), the criticism of the Ghosh test is considered, together with a brief outline of the concept of dishonesty in the civil cases and some reflections on the future application of Ivey in practice.
The trouble with Ghosh
The decisions in Feely and Ghosh attracted a good deal of academic criticism, among others: D.W. Elliott, “Dishonesty in Theft: A Dispensable Concept”  Crim LR 395; E. Griew, “Dishonesty: The Objections to Feely and Ghosh”  Crim LR 341; K. Campbell, “The Test of Dishonesty in Ghosh”  43 CLJ 349.
The essential criticisms were these:
- The cases did not actually provide a definition of dishonesty. Instead the jury (or magistrates) were left to give “dishonesty” whatever meaning they thought fit, having regard to prevailing social mores. By consequence the test was not a legal one but depended on the moral views of the jury. Moreover, simply because “dishonesty” was an ordinary English word, it did not follow that the jury should be given an uncontrolled discretion over its meaning and application.
- The concept of dishonesty had become a central positive feature in offences of property when it should more properly function as a negative feature, controlling liability that would otherwise arise in respect of prima facie unlawful conduct.
- The cases created the possibility that some persons would be acquitted on facts not differing in any material respect from those upon which other persons would be convicted.
- The cases assumed that juries and magistrates in England and Wales were culturally homogeneous with known and shared standards. However, the object of the criminal law was to protect property rights and disrespect for those rights abounded – no such shared values could properly be relied upon.
- The cases mistook the meaning of dishonesty (a legal concept) with standards of behaviour (an ethical one).
- The test risked more trials as defendants had little to lose by pleading not guilty and hoping that the dishonesty element was not made out.
- The second limb of the Ghosh test in particular allowed the accused to escape liability where he had made a mistake of fact as to contemporary standards of honesty. That was no proper reason for excusing criminal liability in the context of property offences – nor did such a concept operate elsewhere in the criminal law. The Ghosh test attached too much weight to the opinion of the defendant at the expense of the rights of the victims of property offences and the criminal law does not ordinarily excuse individuals who believe that their conduct would be acceptable to others.
The Ghosh test was also heavily criticised by the Law Commission. In “Fraud and Deception (Law Commission Consultation Paper No. 155, 1999)” the academic critique of the Ghosh test was found to be compelling (at paragraph 5.28). It was noted, among other things, that the only apparent function of the second limb of the Ghosh test was to allow a defendant to escape liability on the basis of mistake of fact about what the standards of dishonesty were among the general public: that is to say, a defendant’s misunderstanding of the moral beliefs held by the rest of society provided a basis for an acquittal.
Interestingly, however, in its later report, Fraud (Law Com No. 276, 2002), the Law Commission softened its criticism of the Ghosh test and expressed the view that its application in practice was “unproblematic” (paragraph 5.18).
It is notable in this regard that the Fraud Act 2006 came to be passed on the basis of the law as it stood in Ghosh – criticism and all. Some have raised whether, in this context, the decision in Ivey might be considered judicial activism.
Though the position in other common law jurisdictions was not considered in Ivey, it is interesting to reflect that leaving the concept of dishonesty to the uninstructed view of the jury was rejected in Australia only a couple of years before Ghosh: R v Salvo  VR 401.
In Salvo, the defendant (a used car dealer) sold a car to K, taking from K another car in part exchange. Salvo then sold the car received from K. He then discovered that K had no title to sell the car and was put to the expense of perfecting the title of the vehicle. He then decided to repurchase the car he had sold to K using a worthless cheque. His conviction for dishonestly obtaining the vehicle (by falsely representing that the cheque would be honoured) was quashed on appeal on the basis that a claim of right is a defence to a charge of obtaining. The three judges considered the concept of dishonesty and the majority (Murphy and Fullager JJ; McInerney J dissenting) rejected the approach in Feely while McInerney J held that Feely was rightly decided. Fullager J found that dishonesty was not a word to be left to the jury on the basis of its ordinary meaning but, rather, meant “with disposition to defraud i.e. with disposition to withhold from a person what is his right”. The decision in Salvo was followed in Brow  VR 783 and Bonello  VR 633.
Concerns about “dishonesty”
Perhaps alive to these criticisms, it is apparent that the senior judiciary had been concerned for some time before Ivey about the concept of dishonesty in the criminal law and, further, an apparent divergence with civil law, especially in relation to dishonest assistance in breach of trust.
In Starglade Properties Ltd v Nash  EWCA Civ 1314, Leveson LJ added a “note of concern” to his judgment if it was the case that “the concept of dishonesty for the purposes of civil liability differed to any marked extent from the concept of dishonesty as understood in the criminal law”. He noted that the point was apt to be considered by the Court of Appeal (Criminal Division) (at ).
Subsequently, a five-judge Court of Appeal heard the case of R v Cornelius  EWCA Crim 500 in which the issue as formulated between the parties included the correctness of the Ghosh test. Ultimately it proved unnecessary to examine Ghosh. It may be a matter of interest however, that the position adopted by the respondent Director of Public Prosecutions was that the Ghosh test was wrong and ought to be abandoned in favour of the test applicable in civil proceedings, as articulated by Lord Nicholls in Royal Brunei Airlines Snd Bhd v Tan  2 AC 378.
The civil cases in overview
In Royal Brunei Airlines Snd Bhd v Tan  2 AC 378, Lord Nicholls held that dishonesty was the necessary and sufficient condition of liability in cases of dishonest assistance in breach of trust. The test of dishonesty, in such cases, was an objective one (at page 389). To the extent that dishonesty required a subjective element, it was to be derived from the fact that it described a type of conduct assessed in the light of what a person actually knew at the time of the breach. It was not to be found (as in Ghosh) in what a reasonable person would have known or appreciated about that conduct. Put another way, as Lord Nicholls expressed the test, a person’s knowledge of a transaction or conduct had to be such as to render his participation contrary to normally acceptable standards of honest conduct; it did not require that he should have had reflections about what those normally acceptable standards were.
The decision of the Privy Council in the Royal Brunei Airlines case was considered by the House of Lords in Twinsectra v Yardley  2 AC 167. In Twinsectra a majority (Lord Slynn of Hadley, Lord Steyn, Lord Hoffman, Lord Hutton; Lord Millett dissenting) held that a finding of liability was only permissible, where following the application of a combined subjective and objective test, dishonesty was established – a Ghosh type test. However, the decision in Twinsectra Ltd. was explained by the Privy Council three years later in Barlow Clowes International Ltd (in Liquidation) and others v Eurotrust International Ltd  1 WLR 1476. In that case it was decided that the test whether a person was consciously dishonest in providing assistance in breach of trust required him to have knowledge of the elements of the transaction which rendered his participation contrary to ordinary standards of honest behaviour, but did not require him to have reflections on what those normally acceptable standards were. This approach appears to have been followed by Arden LJ in Abu-Rahmah and another v Abacha and others  1 Lloyd’s Rep 115, the Court of Appeal (Pill, Rix and Arden LJJ) and in Starglade (supra).
In broad summary, the combined effect of the cases in the civil law was that a finding that the defendant was dishonest need only involve an assessment of his participation in the light of his knowledge of the facts of the transaction. It is this test which now forms the test of dishonesty for the purposes of the criminal law.
The approach for juries following Ivey
The approach as set out in Ivey that the criminal law ought to follow what was said by Lord Nicholls in Royal Brunei Airlines, would seem both principled and of practical merit.
As to what constitutes this test, and how it is to be approached in criminal trials, it may be of assistance to highlight two passages in the civil authorities in particular concerning the extent to which the factual circumstances (including the characteristics of the defendant) may be taken into account.
In Royal Brunei, Lord Nicholls made plain (at page 393):
“…. when called upon to decide whether a person was acting honestly a court will look at all the circumstances known to the [defendant] at the time. The court will also have regard to personal attributes of the [defendant], such as his experience and intelligence, and the reason why he acted as he did.”
In Starglade Properties Ltd, the Chancellor summarised the effect of what Lord Nicholls had said in the following way (at paragraph 25):
“There is a single standard of honesty objectively determined by the court. That standard is applied to specific conduct of a specific individual possessing the knowledge and qualities he actually enjoyed.”
In sum, the task for the jury is first to find the facts: what did the defendant do and with what possible intention, belief or other state of mind that is relevant to the offence charged? The second task is to decide whether the defendant was acting as an honest person would in the circumstances, applying their standards as ordinary and reasonable people.
In conclusion it is perhaps interesting to reflect that, while some of the more trenchant criticisms of Ghosh have been addressed by Ivey (viz. a defendant’s ability to escape liability based on his misunderstanding of prevailing moral standards), the importation into the criminal law of the test in Royal Brunei is not without potential difficulty.
“Dishonesty” remains a concept left to the jury which is undefined (save by reference to their own standards) and subject to potentially widespread variation. Two defendants may still experience different outcomes before different juries on identical facts. The concept of honesty among a jury drawn from Southwark may differ markedly from those among a jury drawn from Tunbridge Wells.
More significantly perhaps, “dishonesty” remains a central feature in property offences, as opposed to a limiting factor, controlling liability in respect of prima facie unlawful conduct. This is worthy of particular attention in cases of conspiracy to defraud where the parameters of what constitutes unlawful conduct are strikingly wide, namely: an agreement to pursue a course of conduct which risks prejudice to the economic interests of a third party.
In circumstances where the operation of basic capitalist economies routinely and inevitably risks economic prejudice to a third party, “dishonesty” forms the crucial ingredient which engages the stigma of the criminal law. Whether it is right that this is a matter which should be left to a jury as a test of fact, or morality, as opposed to a concept which is a matter of law is perhaps a matter which requires further scrutiny. The alternative would seem to risk, in effect, the creation by stealth of a generalised property offence of dishonesty – a matter on which Parliament has repeatedly declined to legislate.