Dishonesty in Criminal Cases

Vicky Patterson worked as a cleaner for Simply Holidays, a company which owned property including two caravans at Beach Holiday Park, Kessingland, in Suffolk.  She was charged with two offences of theft of money paid to the company.  One offence was dated 4th March 2016 and the second dated 27th February 2017.  In both cases the amount in question was £140.  Magistrates at Great Yarmouth heard a submission of "no case to answer" and agreed that there was not a case to answer. The question for the High Court was whether the Magistrates were correct and it was held that they were not - CPS v Vicky Patterson [2017] EWHC 2820 (Admin) - Sir Brian Leveson P and Mrs Justice McGowan.



The reasons for finding the Magistrates wrong on the no case to answer question are of interest but, for the purpose of this post, the interest in the case arises from the observation of Sir Brian Leveson P on the question of dishonesty which is, of course, crucial for a conviction for theft - Theft Act 1968 section1(1):

"A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly."

The test for dishonesty was set out by the Court of Appeal (Criminal Division) in R v Ghosh [1982] QB 1053.  It was a "two-stage" or "two limb" test.

 In the recent case of Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 - (discussed here) - the Supreme Court, in a unanimous judgment, stated that there was no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution.  The second leg of the test propounded in Ghosh does not correctly represent the law and directions based upon it ought no longer to be given. The test of dishonesty is that used in civil actions. The fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by 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.

In the Vicky Patterson case, Sir Brian Leveson noted (paras. 15-17):

1. In R v Ghosh [1982] QB 1053, the approach to dishonesty was twin tracked. First, the fact-finder must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people. Second, if so, whether the defendant must have realised that ordinary honest people would so regard his behaviour. That test is very different from that which is used in civil proceedings, and the law on this topic both in civil and criminal law was exhaustively analysed in the recent decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. Having done so Lord Hughes (with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agreed) made it clear at para.74:
   

"These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes: …. 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."

2. These observations were clearly obiter, and as a matter of strict precedent the court is bound by Ghosh, although the Court of Appeal could depart from that decision without the matter returning to the Supreme Court. This much is clear from R v Gould [1968] 2 QB 65, in which Diplock LJ observed at 68G that:
   

"In its criminal jurisdiction, ... the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration, we were to be of opinion that the law has been either misapplied or misunderstood in an earlier decision of this court or its predecessor, the Court of Criminal Appeal, we should be entitled to depart from the view expressed in that decision …"

Given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.


3. For purposes of this case it is unnecessary to go further ........

As Noted in the blogpost about the Ivey case, the funeral of Ghosh is merely delayed until a criminal case comes along before the Court of Appeal in which the second limb of Ghosh is directly in point.