Cheating or "taking advantage"? A new case on dishonesty
The UK Supreme Court recently wrestled with the case of Mr Ivey, accused of cheating at the game of Punto Banco at the Genting Casino trading as Crockfords. Whilst the technique of "edge-sorting" the cards, and the history of gaming may be of interest to some, the wider issue to take from the case is the clear statement by the Court, at paragraph 74, that the R v Ghosh test for dishonesty, propounded since 1982, does not correctly represent the law.
The familiar case of R v Ghosh [1982] QB 1053 gave us the two stage test for dishonesty namely (1) whether the conduct complained of was dishonest by the objective standards of ordinary reasonable and honest people and (2), if so, whether the defendant must have realised that ordinary honest people would so regards his behaviour.
More recently in disciplinary cases there have been modifications to the test when used in disciplinary cases, such that the standards of "ordinary reasonable and honest people" has been replaced by "reasonable and honest [professionals of the type being disciplined]" (see Hussain v GMC [2014] EWCA Civ 2246) also in the second limb, following Professional Standards v HCPC and David [2014] EWHC 4657 (Admin), Popplewell J indicated that, to remove the criminal burden of proof from the second limb "must have realised", the test should be "in fact realised" or just "realised" (on the balance of probabilities).
Despite dissenting voices such as Mostyn J in the case of Kirschner v GDC [2015] EWHC 1377, who advocated that disciplinary proceedings should use the civil test from Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, the overwhelming number of authorities have reiterated that the R v Ghosh test is to be used in dishonesty cases in professional discipline. That is why the Ivey case is important.
Cited in the judgement is the view of the Criminal Law Revision Committee that "dishonesty is something which laymen can easily recognise when they see it". It is certainly important to remember that a very large number of dishonesty cases are relatively straightforward – the case may fundamentally turn on whether something happened or not, if it did there may be no dispute that it was dishonest. However in disciplinary as well as criminal cases we are all aware of the other sorts of cases, where what happened (as in Mr Ivey's case) is not disputed but the issue is whether the actions meet the test for dishonesty (or in Mr Ivey's case "cheating").
In the recent decision Lord Hughes observed that the unintended consequence of Ghosh is that the more warped the defendant's standards of honesty are the less likely it is that he will be convicted of dishonest behaviour. The Court's have foreseen this before and the test was intended to address the "Robin Hood" defence so that even though Robin may have viewed robbing from the rich to give to the poor as morally justified it was not his own view of honesty which mattered but whether he must have realised that ordinary honest people would regard his robberies as dishonest. However commentators and the Supreme Court were concerned that the second limb potentially allows the defendant to escape liability where he has made a mistake of fact as to contemporary standards of honesty.
The Supreme Court judgement goes on to review the civil case law on dishonesty and the Barlow Clowes case. It unequivocally concludes that the second leg of the test in Ghosh no longer correctly represents the law and directions based on it should no longer be given. The test for dishonesty in all legal proceedings is "whether, by ordinary standards a defendant’s mental state would be characterised as dishonest", it is irrelevant that the defendant judges by different standards. Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective.
At paragraph 74 the Court concluded, "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."
Initial commentaries on the case differ as to whether this a monumental change or in fact something that will impact relatively rarely. It certainly requires those involved in the presentation and determination of disciplinary cases to be mindful of the change and to clearly direct Panellists to ensure they understand that it is still relevant to seek to understand the Registrant's genuine state of mind (the example given in the judgement is the visitor who genuinely believes that one does not have to pay for public transport, based on the arrangements in their home country), but then to appreciate that the decision as to whether the Registrant has been dishonest is for the Panel, applying the objective standards of ordinary people or fellow professionals.