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Will the new dishonesty test see an increase in fraud convictions?

Ivey v Genting Casinos (UK) Ltd (t/a Crockfords) [2017] UKSC 67 is the most important criminal case in decades. It has shaken the criminal law world. The ruling has obliterated the 35 year test of dishonesty. The short term impact is that criminal texts are now having to be re-written – the Ghosh test being torn apart, stamped on and thrown out of the window in one swift unanimous move. However, the long term impact should be at the forefront of every defence practitioner’s mind – What does this mean for fraud defendants? Is it going to have an impact on conviction statistics?

The reason for the change in the dishonesty test is twofold. Firstly, the Court considered it ‘illogical’ and ‘an affront to the law’ for there to be different tests for dishonesty in criminal and civil cases. Secondly and more interestingly, the judgment is critical of the old Ghosh test. It determined that defendants with lower standards of behaviour were less likely to be held criminally accountable. This is because defendants in criminal cases could only be convicted if they realised that ordinary honest people would class their behaviour as dishonest.

The eradication of this test sends a clear message by the Court that the criminal law should not exonerate defendants who have lower standards of behaviour but should set adequate standards of behaviour.

The test that now applies for both criminal and civil proceedings is set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes. In criminal prosecutions the jury will now have to determine the actual state of the defendant’s mind and then determine whether the defendant was honest or dishonest by the objective standards of ordinary decent people.

Some may argue that the new test will increase conviction rates for dishonesty offences. However, it must be remembered that whilst a defendant no longer has to understand that their actions are dishonest, the high burden of proof (beyond reasonable doubt) in criminal cases still remains.