DISHONESTY MODIFIED: BARTON V BOOTH

On the 29th April 2020, the Court of Appeal confirmed that the correct test for dishonesty is the approach set out by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67. Namely, that the second limb of the landmark Ghosh [1982] QB 1053 test should no longer be followed. The Supreme Court held that a subjective approach is incorrect, instead submitting a purely objective test: whether the act conducted would be one an ordinary, reasonable person would consider dishonest. On Tuesday, a five- judge court established that the Ivey v Genting Casinos correctly alters the precedence for establishing dishonesty.

Barton v Booth [2020] EWCA Crim 575 saw a care home owner prosecuted for financially taking advantage of vulnerable elderly individuals. Overseen by the Lord Chief Justice Lord Burnett of Maldon, the court concluded that ‘We are satisfied that the decision in Ivey is correct, is to be preferred’.

For the offence of theft to be proved, there must be appropriation of property belonging to another dishonestly, with intention to permanently deprive. Until 2017, the 4th element of establishing theft used the Ghosh test: "In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest."

In Ivey v Genting Casinos however, the court held, albeit obiter, that a subjective component was inadequate. The Court of Appeal in Barton v Booth has now confirmed this approach.

This landmark judgment alters the common law of precedence in relation to dishonesty.

By Hannah Friedman