391, that the two-stage Ghosh test for dishonesty, which had been applied for over 35 years, no longer represented the correct approach.Īs practitioners in this area will know, the two-stage test for dishonesty in R v Ghosh QB 1053 required a jury first to determine whether the accused had been dishonest according to the ordinary standards of honest and reasonable people (the ‘objective test’) and, if the answer to that first question was yes, to go on, secondly, to consider whether the accused had realised that what he or she was doing was dishonest by those standards (the ‘subjective test’). The law in this area had been in a state of uncertainty following comments by the Supreme Court in a civil case, Ivey v Genting Casinos A.C. In the recent case of Barton and Booth v R EWCA Crim 575, a five-judge Court of Appeal has confirmed the test for dishonesty to be used in criminal cases. BCL partner, Richard Sallybanks and associate Ami Amin look at the implications of the Court of Appeal decision in Barton and Booth on the test for dishonesty.
