The recent decision of the Supreme Court in Ivey v Genting Casinos [2017] has resulted in a landmark change to the law of dishonesty, overturning a 35 year old test from the case of R v Ghosh [1982].
The previous test from the Ghosh case was that where the prosecution was required to demonstrate that the defendant acted dishonestly, they had to convince the relevant jury (or Magistrates) that:
The conduct complained of was dishonest by the lay objective standard of ordinary reasonable and honest people; and if that is established, that
The defendant must have realised that ordinary honest people would regard his behaviour as dishonest.
The case of Ivey involved the defendant using a card technique called "edge-sorting" whilst gambling; giving himself an advantage in order to win, despite being subject to a gaming contract, which implied a term that he would not cheat.
After considering the case in Ivey, the Supreme Court redefined the definition of dishonesty and stated that the second part of the Ghosh test was 'no longer good law'.
In all future criminal proceedings, then it appears the Ghosh test will no longer be reliable in law.
That said, there are two further wrinkles to consider. First, the definition of dishonesty is identical to the civil definition in Barlow Clowes International Ltd v Eurotrust International [2005] UKPC 37. Therefore the test for dishonesty under Ivey does include a subjective step, as it is for the jury to decide the defendant's actual knowledge or belief of the facts, which will of course impact their deliberations as to whether the defendant could be said to be objectively dishonest.
Secondly, the decision in Ivey was technically obiter in that it was said in passing rather than being part of the core of the decision. Therefore, the lower courts are still technically bound by it.
That said, the recent Divisional Court case of DPP v Vicky Patterson [2017] has clearly indicated that despite this technicality, the Court of Appeal is likely to prefer the reasoning in Ivey in future.
Furthermore, whilst the Ghosh test does appear to be applicable, in practice it appears the lower courts are already following Ivey despite this point.
On that basis, the test in Ghosh has in actuality been rendered broadly irrelevant, and the next decision of the Court of Appeal concerning this point is awaited to confirm that Ivey is the case that holds all the cards.
