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Dishonesty – What does it honestly mean?

Dishonesty – What does it honestly mean?

The Landscape of criminal prosecutions for crimes involving dishonesty has been fundamentally reshaped. The marked change that is rippling its way through our legal system is a result of a ruling in the Supreme Court. The case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 led the court to redefine the criminal test for what constitutes dishonesty.

The Landscape of criminal prosecutions for crimes involving dishonesty has been fundamentally reshaped. The marked change that is rippling its way through our legal system is a result of a ruling in the Supreme Court. The case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 led the court to redefine the criminal test for what constitutes dishonesty.

The case that has been seen as the ‘authority’ in all criminal proceedings for the past 35 years is R v Ghosh [1982] QB 1053. Here, the Court ruled that a two stage test was required in criminal proceedings to prove a defendant’s act was indeed dishonest. These were:

  1. whether the conduct of the defendant was dishonest by the objective standards of ordinary, reasonable and honest people and;
  2. whether the defendant must have realised that ordinary honest people would regard his behaviour as dishonest.

Stage 1 of this test was what we call an objective test and Stage 2 of this test was a subjective test. These are quite different and to be satisfied of dishonesty both tests have to be passed. But it was Stage 2 that had become problematic over the years. An example can help clarify the point.

If an individual with psychosis genuinely believed that stealing is not considered dishonest by the standards of an ordinary person, it could be argued that stage 2 has not been passed, and therefore cannot be convicted of the crime.

The question is a difficult one. Can the person’s act, given their mental state, amount to a crime of dishonesty? In this example, if the defendant is unable to hold the standards of ordinary society, it is less likely  that he will be convicted of the crime.

A further concern is the jury. For the cases which involve potential crimes of dishonesty and a jury, the challenge is a difficult one. Juries, as part of the case, will be invited to consider what was going through a defendant’s mind at the time of a crime and their possible mental state, which may well prove a confusing and complex task to undertake.

Ivey v Genting Casinos

Today that confusion is no longer an issue thanks to the Ivey v Genting Casinos case. This case involved a gentleman who used an advanced technique, called edge sorting, in order to place bets in a card game called Punto Banco. Using this technique, he went on to win £7.5 million. However a review of the footage revealed he was using the technique and the Casino refused to pay out his winnings.

In the judgment, the court found great difficulty with the use and application of the stage tests in R v Ghosh. In addition the judgement went as far as to state that many criminal trials had been conducted where Jurors had to consider not what is considered dishonest by ordinary standards, but what is dishonest by the Defendant’s standards, however unusual and distorted they might be.

The Judges went a step further. They confronted a long standing discrepancy. This was that there was a different definition for dishonesty used in Civil cases than in criminal cases.  Civil cases only have to apply the first of the two tests, the objective stage.

In lights of the problems caused by the second test, the Judges ruled that the second subjective test should no longer be used. As a result only the objective test, the first test, should be used, bringing criminal dishonesty into line with dishonesty in civil proceedings.

The Landscape of criminal prosecutions for crimes involving dishonesty has been fundamentally reshaped. The upshot of the change is that bringing criminal prosecutions for crimes involving dishonesty, such as fraud and theft, is now easier. The simple reason is because you are no longer required to prove that the Defendant would have believed the act to be dishonest. Instead, you only have to prove that an ordinary person, in an ordinary society, would believe the act to be dishonest.

Therefore if you believe you have suffered loss as a result of a fraud or a theft and wish to bring a private prosecution, thanks to Ivey v Genting Casinos it has become a little bit easier for you.