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Legal Minds

25 October 2017 / by / in


For 35 years the biggest debate about the test for dishonesty in the criminal courts has been whether the leading case was pronounced as an expression of surprise or as a description of a socially awkward teenager.

In a shock judgment given today in the case of Ivey v Genting Casinos (UK) [2016] EWCA Civ 1093, the Supreme Court has abolished the tried, tested and (by criminal defence practitioners at least) loved two-limbed test set out in the 1982 case of R v Ghosh and replaced it with the objective test in the 2005 civil case of Barlow Clowes.

For some time there has been a difference between the test for dishonesty being applied in the civil courts to the test being applied in the criminal courts. Whilst in the criminal courts a defendant must have realised that an action was objectively dishonest for him to be guilty of an offence, there was no such requirement in the civil courts. This discrepancy, say the Supreme Court, is illogical. Dishonesty is dishonesty whether a case is being heard at the Old Bailey or the Royal Courts of Justice.

The Ghosh test was not a get out of jail card for amoral or immoral individuals. The second limb of the test was carefully worded to prevent acquittals of individuals with different standards of dishonesty. It was only in cases where a defendant did not realise that others would find his actions dishonest that he could be acquitted; not in cases where a warped morality meant he did not consider himself dishonest even when he knew the rest of society did. The second limb provided an important safeguard in cases where individuals’ liberty was at stake and it is worrying that it has been abolished.

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Roland qualified as a solicitor in 2004 and was awarded higher rights of audience in 2008. Roland is an experienced business crime and regulatory lawyer. He has been involved in some of the UK’s highest profile investigations and prosecutions brought by the Serious Fraud Office (SFO) and Crown Prosecution Service (CPS). He also advises individuals and companies facing Financial Conduct Authority (FCA) regulatory investigations and proceedings.