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Court of Appeal Confirms Ivey Test for Dishonesty Is Correct and Clarifies the English Court’S Approach to Rules of Precedent

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Court of Appeal Confirms Ivey Test for Dishonesty Is Correct and Clarifies the English Court’S Approach to Rules of Precedent Court of Appeal confirms Ivey test for Dishonesty is correct and clarifies the English Court’s approach to rules of precedent Published 27 May 2020 An important decision for the determination of offences involving dishonesty and of note for international parties involved in litigation in England. Introduction On 29 April 2020, the Court of Appeal heard what can fairly be regarded as an optimistic appeal made by David Barton and Rosemary Booth against their convictions for multiple counts of conspiracy to defraud, fraud, theft and false accounting. The allegations relate to the extraction of millions of pounds from wealthy individuals by the owners and operators of a luxury care home facility over a number of years. In the Liverpool Crown Court, Mr Barton was convicted 10 counts and sentenced to 21 years imprisonment and Mrs Booth convicted on 3 counts and sentenced to 6 years’ imprisonment. The Appeal Of the multiple grounds of appeal raised, the primary ground related to the law of dishonesty and whether the decision in Ivey v Genting Casinos (UK) (trading as Cockfords Club) [2017] UKSC 67 was the correct approach to dishonesty and if so, was it to be followed in preference to the test described in R v Ghosh [1982] QB 1053. At first instance, the Judge had directed the jury on the issue of dishonesty by reference to Ivey rather than Ghosh. In doing so, he did what the Supreme Court in Ivey indicated he should. The Appellants argued that the Judge should have followed Ghosh because the observations of the Supreme Court in Ivey were made Obiter whilst Ghosh remained binding authority. They also argued that the reasoning in Ghosh was correct and should be preferred to Ivey. Ghosh and Ivey The test in Ghosh fixed a 2 stage test, namely (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? In disapproving Ghosh, the Supreme Court in Ivey said the correct test was (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? In fixing this new test, the Supreme Court in Ivey indicated that the correct test for dishonesty was as set out in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 and in Barlow Clowes International Ltd v Eurotrust International Ltd [2006] 1 WLR 1476. In essence, the test in Ghosh led to the unsatisfactory situation that even if, under the first limb, a person’s conduct was regarded as clearly dishonest by the standards of reasonable people, under the second limb, if that person genuinely believed that what he was doing was not dishonest by reference to those objective standards, he was not, in law, dishonest. As was expressed in Ivey, “[Ghosh] 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.” This unintended effect appears to have come about as a result of the desire to “give effect to the principle that dishonesty, and especially criminal responsibility for it, must depend on the actual state of mind of the defendant…” The Supreme Court in Ivey resolved this unsatisfactory state of affairs by affirming the test formulated in Barlow Clowes that, “Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards…” The Supreme Court in Ivey also determined that there was, “no logical or principled basis for the meaning of dishonesty…to differ according to whether it arises in a civil action or a criminal action.” Their views on this aspect were sufficiently strong for the Supreme Court to comment that, “It would be an affront to the law if [the meaning of dishonesty] differed according to the kind of proceedings in which it arose…” Rules of Precedent The uncertainty, if it can be called that, which the Appellants sought to be decided here relates to the fact that the Supreme Court in Ivey did not expound its new test for dishonesty in deciding the outcome of that case. Rather, it’s views were expressed Obiter in view of the growing unrest in relation to the second leg of the Ghosh test not correctly representing the criminal law on dishonesty and the divergence in approach between the civil and criminal law on this issue. The Court of Appeal in Barton therefore, had to determine whether it was obliged to follow the Supreme Court’s Obiter determination in Ivey. CIt iso wuell restta bolishfe d Athapt, pin tehea nolrm cal coounrsef, ithrem Cousrt oIf vApepeayl i s tboeunds bty tfheo rurle s Dof pirsechedoentn toe fosllotwy a deicsision of the Supreme Court (or its predecessor the House of Lords). The issue here was that in Ivey, the Supreme Court’s views were Obiter and, therefore, not ordinarily the binding part of the judgment. In Barton, the Court of Appeal looked closely act other rreaelityc otf t hae Snupdrem ec Cloaurtr’s irufliinge ins Iv ety.h In edoi nEg sno, igt elxiasmihned Cando foullorwetd’ tshe vaiepw pexprreossead cin hR v Jtamoes & rKaurimlie [20s06 ]o QBf 5 8p8. recedent In James, the Court of Appeal held (in relation to a case concerning the law of provocation) that it was bound by a decision Pouf bthliesh Perdiv 2y7 C Moauyn c2i0l 2a0nd not a decision of the House of Lords. By doing so, the Court of Appeal recognised it was departing from well-established rules of precedent and observed the need for a clear explanation for doing so in order that the rules of Apnre icmepdoerntta nwte drec nisoito nth feomr stehlev edse theromwinna tinioton otufr omfofeiln. cTehse i nCvooulvrti nogf dAipshpoenael srteyc oagnndi soefd n tohtaet ftohre i nPtreivrnya Ctioounnacl ipl acratsiee st hinevyolved in lpitriegfaetriroend i nw Easn gdleancdid.ed by 9 of the 12 Lords of Appeal and that the Privy Council case was itself concerned to resolve a conflict between decisions of the House of Lords and the Privy Council and to clarify definitively the present state of English ILnawt.r Tohde uCocutrti oofn Appeal in James therefore recognised that it had been the Lords of Appeal (ie. in effect the House of Lords) who had, in fact, altered the established approach to precedent and it was not for the Court of Appeal to rule that it Owna s2 9b eAypornild 2 t0h2e0 ,p tohwee Crso uorft tohfe A Lpopredas l ohfe Aaprdp ewahl atot cdaon sfoa.i rIlny ebsese rnecgea,r d(1e)d tahse a lna wop Ltoimrdis tsiict taipngp eina l tmhea dPeri vby CDoavunidc iBl argtroene dan tdhat Rthoese dmeacriysi oBno odtehf iangiatiivnestl yt hcelairi fcioendv Eicntgiolinshs fLoarw m (u2l)t itphle cmoaujnotrsi toyf ocfo tnhspei rParcivyy t oC oduenfcrialu cdo,n fsrtaituudt,e tdh heaftlf a onfd tfhaels eA papceclolautneting. The aClolemgmatiitotnese r oefla tthee t oH othusee e oxft rLaocrtdios na nodf m(3i)l ltiohnes roefs uplto uonfd asn f raopmpe wale taolt thhye i nHdoiuvsied uoafl sL boyrd tsh we aosw, ntheersr eafnodr eo,p ae rfaotroergso onfe a luxury caornec lhuosimone. fTahceil iPtyri voyv eCro au nncuiml dbeecr iosifo yne warass., Itnh tehre fLoirvee,r pa odoel Cfarcotwo nd Cecoiusrito,n M orf Btahret oHno wusaes ocfo Lnovricdtse. d 10 counts and sentenced to 21 years imprisonment and Mrs Booth convicted on 3 counts and sentenced to 6 years’ imprisonment. Decision The Appeal In Barton, the Court of Appeal recognised it was in a very similar position to James, albeit more so because the ordinary Orufl etsh eo fm purleticpeldee gnrto ruenqdus ioref da pitp teoa lf oralliosewd ,a tdheec ipsriiomn aorfy tghreo uSnudp rreemlaete Cdo tuor tt.h Ien lfaiwnd oinfg d iitssheolfn ebsotuyn adn bdy w thet Shuepr rtehmee d Cecoiusrito’ns in IOvbeiyt evr G deentteirnmg iCnaatsiionno si n( UIvKe) y(,t trhaed iCnog uarst Coof cAkpfpoerdasl sCtlautbe)d ,[ 2“0T1h7e] UunKdSCou 6b7t ewda sr etahleit cyo irsr ethcta ta pinp rIoveacyh t htoe dSiusphroenmeset yC aonudr ti fa lstoe,red wthaes eits ttaob bliesh feodll ocwomedm ionn p lraewf earpepnrcoea tcoh thoe p treescte ddeesnctr iibne tdh ien cRr ivm Ginhaols cho [u1r9t8s2 b] yQ sBt a1t0i5n3g. that the test for dishonesty they identified, albeit strictly contained in obiter dicta, should be followed in preference to an otherwise binding authority of Atht ef iCrsot uirnts toafn cAep,p tehael J[iued.g Ge hhoasdh ]d.i rAesc itne dJ atmhee sj,u rwye o dno t hneo ti scsounes oidfe dri sthhoante istt yis bfyo rr etfheirse cnocuer tt ot oIv ceoyn rcaltuhdeer tthhaatn iGt hwoassh .b eIny odnoding s[oth, eh eSu dpirde mweh aCto tuhret’ sS]u porewmeers Ctou artc ti ni nIv tehyi si nwdaiyc.a”ted he should. The ACpopuertl laonf tAs paprgeuael dw tahs aetx tthrem Jeudlyg eca srheofull dt oh arevceo fgonlilosew tehde Gphooteshn tbiaelc faours eu ntcheer toabinsetyrv tahtaiot nms iogfh tt hre sSuultp frreomme aC doeurpta irntu Irvee yfrom wtheer eo rmdiandaery O abnidte lro nwgh eilsstta bGlhisohs hE nrgelmisahi nruelde sb oinfd pinreg caeudtehnotr:i t“y.T hTeh eryu laelso o af rpgrueecde dtheantt tehxei srte atoso pnrinogv iidne G lheogsahl cwearst acionrtrye cwth aicnhd is sah foouuldn dbaet iporne fsetorrneed otfo tIhvey a.dministration of justice and the rule of law.
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