CASE SUMMARY: Barton & Booth-v-The Queen [2020] EWCA Crim 575. The Court of Appeal considers whether the new definition of ‘dishonesty’ given by the Supreme Court in  the case of Ivey v Genting Casinos (UK) (trading as Cockfords Club) [2017] UKSC 67 applies in criminal cases.

 This was an appeal against conviction brought on various grounds, primarily whether Ivey provided the correct approach to dishonesty and, if so, is it be followed in preference to the test described in Ghosh?

Summary of Facts

Mr David Barton ran a luxury nursing home in Lancashire, Barton Park Nursing Home, alongside his wife, Lucinda Barton. He had close control of the business and made all the key decisions in relation to the management of the home.

Ms Rosemary Booth was the general manager of Barton Park Nursing Home.

It was alleged that over many years, Mr Barton dishonestly exploited his relationship with the residents in a number of ways, namely by obtaining large cash gifts and spurious ‘loans’. He would abuse his position of power and in doing so would isolate the residents from their friends and family. Furthermore, he would charge residence fees that were beyond reasonable and sometimes, they were fabricated.

The Prosecution case was that Mr Barton was assisted by Ms Barton and a solicitor Thomas Mills. Mr Mills passed away shortly before he trial.

The offences for which Mr Barton was convicted took place over a period of 20 years and the sums involved a total of £4,130,000.

It was further alleged that Mr Barton attempted to obtain a further sum of approximately £10 million in relation to civil proceedings against Katie Willey’s estate, following her death in 2014.

When summing up the case to the jury, the trial judge directed the jury on the issue of dishonesty by reference to Ivey rather than Ghosh. In doing so he did what the Supreme Court had indicated should happen, namely that directions based upon Ghosh “should no longer be given”. That indication is reflected in the Crown Court Compendium and the two leading practitioners’ works, Archbold and Blackstone.

The Appellants submitted to the Court that the trial judge erred in his directions to the jury by referring to Ivey and instead should have directed them as per the test in Ghosh.

Discussion

What are the old and new tests for dishonest? And What test should the Criminal Courts follow?

The Ghosh Test

The test in Ghosh is a two-stage test:

(a) Was the defendant’s conduct dishonest by the ordinary standards of reasonable people? If so,

(b) Did the defendant appreciate that his conduct was dishonest by those standards?

Ghosh created a different approach to dishonesty in the criminal courts. It erroneously concluded that its second leg test was necessary in order to preserve the principle that ‘criminal responsibility for dishonesty must depend on the actual state of mind of the defendant’. This was an unnecessary step and has presented problems for jurors.

The Ivey Test

In Ivey, the Supreme Court clarified the test on dishonesty, as derived from Ghosh, setting out a new two-stage test, as follows:

(a) What was the defendant’s actual state of knowledge or belief as to the facts; and

(b) Was his conduct dishonest by the standards of ordinary decent people?

It is clear from the judgement in Ivey that the second limb of the test in Ghosh had been causing serious problems. The Supreme Court took the view that it did not adequately represent the law and that directions upon it should not be given.

Lord Hughes explored the issues in Ghosh in his judgment at paragraph 57, stating that the second limb of the test in Ghosh:

“(1) It has the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour.

(2) It was based on the premise that it was necessary in order to give proper effect to the principle that dishonesty, and especially criminal responsibility for it, must depend on the actual state of mind of the defendant, whereas the rule is not necessary to preserve this principle.

(3) It sets a test which jurors and others often find puzzling and difficult to apply.

(4) It has led to an unprincipled divergence between the test for dishonesty in criminal proceedings and the test of the same concept when it arises in the context of a civil action.

(5) It represented a significant departure from the pre-Theft Act 1968 law, when there is no indication that such a change had been intended.

(6) Moreover, it was not compelled by authority. Although the pre-Ghosh cases were in a state of some entanglement, the better view is that the preponderance of authority favoured the simpler rule that, once the defendant’s state of knowledge and belief has been established, whether that state of mind was dishonest or not is to be determined by the application of the standards of the ordinary honest person, represented in a criminal case by the collective judgment of jurors or magistrates.”

In this case, the Court of Appeal took the view that in Ivey, the Supreme Court altered established common law approach to precedent in the criminal courts by stating that the test for dishonesty they identified, albeit strictly contained in obiter dicta, should be followed in preference to an otherwise binding authority of the Court of Appeal. In light of the above, the Court found that the trial judge had not erred in his directions to the jury and therefore the convictions were not unsafe, as submitted by the Appellants.

Outcome

Held: The Court of Appeal made it clear in this case, in paragraph 105, that the test for dishonesty to be followed in all criminal cases is that in Ivey. Subsequently, the Appeal was dismissed.

To view the judgment in full please click here.

This case summary on Barton & Booth v The Queen [2020] EWCA Crim 575 was written by Alejandra Llorente Tascon for further information on her practice or another member of the criminal team please contact our clerking team.