R v Barton
R v Booth
Court of Appeal
Citations:  EWCA Crim 575,  WLR(D) 264.
The first defendant, Barton, ran a luxury nursing home. The second defendant, Booth, was the general manager of the home. Over the years, the pair abused their position to befriend, manipulate and isolate residents at the home in order to profit from them. At trial, a jury convicted the defendants of various dishonesty offences.
Previously, to be shown dishonest, the courts applied the test set out in R v Ghosh  EWCA Crim 2. This had two elements:
- An ordinary and honest person would consider the defendant’s conduct dishonest; and
- The defendant was aware that such a person would consider his conduct dishonest (even if he did not personally agree).
This case was decided shortly after the decision in Ivey v Genting Casinos  UKSC 67, which disavowed the second limb of the Ghosh test. In that case, the Supreme Court stated that the new test for dishonesty was simply whether an ordinary, honest person, armed with the same factual knowledge and beliefs as the defendant, would consider the conduct dishonest. However, Ivey was a civil law case and these remarks were strictly obiter. The defendants argued that the criminal courts should not follow Ivey, and should instead continue to rely on Ghosh. They argued that their convictions were therefore unsafe: the judge had directed the jury in accordance with the Ivey test.
- Should the criminal courts apply the Ivey test or the Ghosh test when deciding whether the defendant was dishonest?
The Court of Appeal held that the correct test to follow was the Ivey test. However, they considered that the sentence imposed on Barton was manifestly excessive in light of his prior good character and advanced age.
This Case is Authority For…
The test for dishonesty is now whether an ordinary and honest person, believing the same facts as the defendant, would consider the defendant dishonest. It is no longer necessary to prove that the defendant was aware that others would consider his conduct dishonest.
Where the Supreme Court states that a previous authority is no longer to be followed, the Court of Appeal is bound to follow this direction even if it is obiter. The Court of Appeal reasoned that it would be pointless to hold otherwise, since the result of any appeal of their ruling to the Supreme Court would be a foregone conclusion.
The court noted that the defendant’s intelligence and experience should normally be attributed to the ordinary, honest person in addition to any factual beliefs or knowledge. They also commented that a person who:
- Genuinely forgot to pay at a restaurant; or
- Got on public transport without paying believing it was free;
would not be dishonest under the new test.