The Court of Appeal has confirmed that the test for dishonesty in criminal cases is the test set out (obiter) by the Supreme Court in Ivey v Genting, and not that in its own longstanding decision in R v Ghosh. As a result, lawyers are at a greater risk of findings of dishonesty in a criminal context.
Background
Since 1982, the test for dishonesty in criminal proceedings has been the test set out by the Court of Appeal in R v Ghosh [1982] QB 1053:
- Was the Defendant's conduct dishonest by the ordinary standards of reasonable and honest people? and
- If so, must the Defendant have realised that his conduct was dishonest by those standards?
However in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, Lord Hughes in the Supreme Court (with whom the rest of the Court unanimously agreed) – speaking obiter - criticised the Ghosh test, holding that it "does not correctly represent the law and directions based upon it ought no longer to be given". He said that the test set out in Royal Brunei v Tan [1995] 2 AC 378, as clarified by the Privy Council in Barlow Clowes v EuroTrust [2005] UKPC 37, should be used in all cases as "there can be no logical or principled basis for the meaning of dishonesty (as distinct from the standards of proof by which it must be established) to differ according to whether it arises in a civil action or a criminal prosecution". He explained the test as follows:
- What was the Defendant's actual state of knowledge or belief as to the facts? and
- Was the Defendant's conduct dishonest by the standards of ordinary decent people?
This test was part of a discussion of dishonesty in the case which was not necessary for the Supreme Court's decision and was therefore obiter dicta. But it left uncertainty as to which test should then be applied in criminal cases – the test set out obiter by the Supreme Court in Ivey or the strictly binding precedent of the Court of Appeal in Ghosh.
Decision – modification of the rules of precedent
The Court of Appeal in Barton has now resolved this uncertainty in favour of the test in Ivey, which it held should be applied in all criminal cases.
The Court emphasised the importance of the rules of precedent, noting that they "provide legal certainty which is a foundation stone of the administration of justice". However they must in certain circumstances "be capable of flexibility to ensure they do not become self-defeating".
It concluded that where the Supreme Court itself directs – as it did in Ivey – that an otherwise binding decision of the Court of Appeal should no longer be followed, and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow that direction even though it is strictly obiter. It stressed that this limited modification to the ordinary rules of precedent was confined to cases in which all the judges in the Supreme Court agree that to be the effect of the decision.
The Ivey test
The Court in Barton noted that it was not following the decision in Ivey reluctantly (considering it was in effect overturning its own decision which had been in force for almost 40 years) but that it had, upon consideration, found Lord Hughes' reasoning in Ivey – against Ghosh and in favour of his alternative test - compelling.
Our analysis of Ivey at the time of that judgment can be found here. As we explained, the principle objection to Ghosh was that the second (subjective) limb of the test meant that a defendant must have realised that 'ordinary, reasonable and honest people' would see his behaviour as dishonest, before he could be found dishonest. A defendant convinced of his own honesty (by whatever deviant personal standard) by definition is not going to realise that reasonable people would think otherwise – and would therefore walk free.
It is different under Ivey, as the question of dishonesty is determined, as noted in Barton "by reference to society's standards rather than the defendant's understanding of those standards". So, crucially, a person who believed his conduct was honest and therefore did not entertain the idea that reasonable people might think otherwise, will not now (cf under Ghosh) escape a finding of dishonesty.
Implications for claims against lawyers
In summary, it is now easier to prove dishonesty against lawyers in criminal proceedings, as a lawyer's belief that their own conduct was on the right side of the line will not spare them a conviction if ordinary decent people would conclude otherwise.
In our article on Ivey, we predicted that the Solicitors' Disciplinary Tribunal was likely to adopt the test in future cases. And so it proved, albeit that it has not always got the application of the test right – as we discussed here in relation to Solicitors Regulation Authority v Kwame Agyekum Siaw [2019] EWHC 2737 (Admin). But the easier test, coupled with the recent introduction of a lower standard of proof ("on the balance of probabilities") in proceedings before the SDT, means it is likely that the upward trend over the past few years in findings of dishonesty against solicitors is only likely to continue.
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