(by the standards of ordinary Supreme Court judges).
As a non-lawyer drawn to the bar I “converted” via a one year cramming course then known as the Common Professional Examination, now the Postgraduate Diploma in Law. You study the six core subjects of a law degree in one year. One of the first topics in Criminal Law was Theft. This is a good thing; it teaches students how lawyers are expected to think, breaking everything down to its component parts before reassembly. So whilst we all think we know what theft is – stealing something – as law students we learned that actually there are a number of components of the offence and the prosecutor has to prove each component. Theft is “the dishonest appropriation of property belonging to another with the intent to permanently deprive.” Lawyers have argued over each and every element but the first, dishonesty, has remained pretty fixed since I trained – until last week.
Back in 1982 Lord Lane CJ gave the leading judgment in a Court of Appeal case concerning a dishonest surgeon – a Mr Ghosh. At his trial, the Crown Court judge had directed the jury that it was for them to decide whether the Mr Ghosh had been dishonest by applying contemporary standards of honesty and dishonesty in the context of all that they had heard in the case.
Lord Lane CJ set out that this approach was wrong. Henceforth the approach would be a two stage 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 most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the defendant himself knew that he was acting dishonestly. It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did. For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest.
Note that Mr Ghosh had not in fact raised any defence under the underlined section which became known as the “second limb” of Ghosh. On the facts of his case he would have been just as guilty if the judge had directed as per Lord Lane’s suggestion – and for that reason his appeal was not allowed.
As a legal newbie, I remember finding it bizarre that those who created the law thought that “ordinary people” would regard Robin Hood as being a dishonest man. Looking round the cohort of wannabe lawyers in the room I began to appreciate just how conservative a profession I was joining and worried that not only was I expected to think analytically, but also conservatively.
In the intervening years I have ended up being a specialist regulatory lawyer. Please note I still haven’t learned to think conservatively. Regulatory law has consistently made a pig’s ear out of dishonesty and much time in the appeal courts has been taken up with the subject. My constant throughout has been Ghosh and I have clung to it like a rock. I have never been let down by always reverting to Ghosh as the relevant test, despite diversions up dead ends where it has been argued, for example, that bankers should be judged according to the standard of bankers rather than by the standards of ordinary honest folk. I have won cases entirely based on the second limb of Ghosh. Misconduct panels have found my clients to have been so focused on the task of raising standards of education that they simply did not consider how others would have regarded their actions – and according to Ghosh that renders even objectively dishonest behaviour not capable of such a finding.
Last week, all that came to an end with handing down of judgment in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)
Mr Ivey had the temerity to beat the casino at cards – to the tune of a cool £7 million. The Casino declined to pay. In short, they asserted that he had cheated. He said that he had not, although he admitted “legitimate gamesmanship”. He sued them for his winnings and lost. He appealed and eventually wound up before the highest court in the land.
The Supreme Court adopted Mr Justice Mitting’s “admirably succinct” summation of the facts. It runs to 22 paragraphs and provides an insight into the twilight world of high stakes card games on par with Ian Fleming’s depictions. Of excitement to the lawyers, the Supreme Court found that everyone has been thinking about dishonesty in the wrong way for thirty-five years. Now we know that:
“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”
What we must do now is determine what the defendant thought he or she was doing and then decide whether ordinary honest people would regard that state of mind as a dishonest one.
Whilst the definition of dishonesty has shifted, what I hope hasn’t changed is that English and Welsh juries would still acquit Robin Hood – no matter how they are directed.