The potential headache of whether the criminal courts should continue to apply the Ghosh test or to now follow the dicta of the Supreme Court in a civil judgment was subject to an attempted resolution by the then President of the Queen’s Bench Division, Sir Brian Leveson, in R v Patterson 1 Cr App R 28.

Far from that being the end of the matter however, the judgment gave the Court the opportunity to upend the previously accepted Ghosh test in a passage that can only be said to be obiter and therefore non-binding on lower Courts. The subject matter of Ivey was whether ‘cheating’ in a game of cards necessarily required an element of dishonesty on the part of the cheater, a question which the Supreme Court answered in the negative. The test as formulated in Ivey is simply to ask whether the conduct was honest or dishonest when applying the objective standards of ordinary decent people, applying the facts as they were known by the defendant at the time. The Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords UKSC 67 proceeded to dispense with the two-limb Ghosh test for criminal dishonesty in favour of a single objective test, as applied in the civil courts. The Court of Appeal has today handed down judgment in R v Barton and Booth EWCA Crim 575, holding that the objective test for dishonesty as set out in Ivey is to be used in criminal proceedings in preference to the two-stage dual objective/subjective test set out in Ghosh.įor over thirty years the approach to defining criminal dishonesty was the two-stage test laid down in R v Ghosh QB 1053: was the defendant’s conduct objectively dishonest by the standards of reasonable and honest people, and if so did the defendant realise that his conduct was dishonest by the standards of those same people?

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