What place a defendant’s state of mind following the Supreme Court decision in Ivey v Genting [2017] UKSC 67?
Until Mr Ivey challenged the refusal of the Genting Casino to pay the £7.7 million he had won at Baccarat using an edge-sorting technique that he called legitimate and they called cheating, a defendant charged with an offence of dishonesty would have had a fairly good idea how a jury considering her conduct would have decided whether it had been dishonest. Since 1982, when the locum surgeon Mr Ghosh was convicted of claiming fees for operations undertaken by others, the jury would have asked itself not only whether the conduct was dishonest by the standards of reasonable and honest people (amongst whom they would have included themselves), but whether the defendant realised that ordinary honest people would consider the behaviour to be dishonest. Since the Supreme Court concluded that Genting’s categorisation of Mr Ivey’s conduct was the correct one and took the opportunity to look again at how a jury ought to spot dishonesty, a defendant’s position on the face of it has changed. But how much?
The Supreme Court was keen to remove a defendant’s own realisation that reasonable and honest people would consider her conduct dishonest from the equation. It was concerned that this could place a defendant with a warped view of the world in a better position than one in touch with contemporary morality. However, the Court did not in the process make the actual state of mind of a defendant irrelevant. Its relevance is to the state of knowledge as to the factual context of her conduct. As Lord Hughes identified (at para.60), taking the example of a person accused of travelling on a bus without paying, if they genuinely believe that public transport is free then there is objectively nothing dishonest about not paying. Similarly (taking the facts of the pre-Ghosh decision in Feely [1973] QB 530), if an employee takes money from the till, knowing that this is not permitted but intending to pay it back the next day, the objective assessment of his conduct in terms of dishonesty will differ from another employee who takes from the till without making any attempt to repay.
Whilst it could be argued that the dishonesty issue that the Supreme Court had to resolve in Mr Ivey’s case was not the question of whether the test described by Lord Lane CJ in Ghosh [1982] QB 1053 was correct, it could equally be argued (as Lord Hughes observed at para.55) that Lord Lane had not been required to devise his two part test in order to address whether it was dishonest to claim for work others had done as Mr Ghosh had. Moreover, it would be brave to suggest that the unanimous and unequivocal rejection of the Ghosh test should not be followed. As Sir Brian Leveson observed in DPP v Patterson [2017] EWHC 2820 (Admin), “it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future” (at para. 16).
In any event, the Supreme Court has taken the opportunity to restate the test for dishonesty that has generally been applied by courts and juries, namely by reference to her state of knowledge of the factual context of her actions judged against the assessment of reasonable persons. For example, the Crown Court Compendium [8-6] recognises that it has been “unusual” to address the second Ghosh question. Moreover, this is an approach that juries have already been applying in all manner of other contexts, such as whether someone’s claim to be acting in self-defence was reasonable, or whether their knowledge or belief was genuine by reference to whether it was reasonable.
And so, the answer in reality and in most cases to the question of how now to spot dishonesty is much as it was before, dependent on the assessment of the jury as to whether it was dishonest in their eyes in the circumstances that the defendant was in.
