Goodbye Ghosh – A New Test for Dishonesty

For the past 35 years, the test for dishonesty in criminal law has consisted of a two-stage test which derived from the case of R v Ghosh.

The two-stage test consisted of the following:

1. Firstly, the jury would be directed to apply an objective test to the defendant’s actions. The jury would be asked to decide whether, by the standards of the reasonable and honest person, they believed that the actions of the defendant were dishonest. If the jury found the defendant’s actions not to be dishonest by this standard the test would fail at this point.

If, however, the jury found that the actions of the defendant were dishonest by the standards of the reasonable and honest person, the test would proceed to stage 2.

2. The second stage of the Ghosh dishonesty test was a subjective test. The jury would be asked to consider whether the defendant would have had knowledge and considered his own actions to have been dishonest by the same standard of the reasonable and honest person.

The Ghosh test was not applied in every criminal case concerning dishonesty, it was reserved for cases where the defendant may have considered his actions to have been honest by the standard of the reasonable and honest man.

A recent landmark case which has overturned the Ghosh dishonesty test is Ivey v Genting Casino (UK) Ltd t/a Crockfords. The case involved two professional gamblers who used a card sorting method known as edge-sorting to change the advantage of the house to favour themselves.

The defendants over the course of two days won £7.7m at the casino, however, the casino refused to pay, claiming that the defendants had cheated by using the edge-sorting technique. The defendants held that their actions were not dishonest and did not amount to cheating.

As previously mentioned the test for dishonesty had always been the two-part Ghosh test, however, on appeal to the Supreme Court, in the judgement for the Ivey case, a new precedent has been set and a new test for dishonesty in criminal law has been introduced.

The new test for dishonesty which will now be applied to all criminal cases mirrors the test already used in civil cases and is an objective test which asks if, by the standard of the reasonable and honest man, the defendant’s actions were dishonest.

The previously-used Ghosh test had always been heavily criticised as it permitted for potential variation between cases due to the purely subjective second stage. The potential for an individual to be found not guilty due to their own poor moral standards was a possibility and raised a question of law as to whether the defendant’s own beliefs should be included as forming part of the verdict in a criminal trial.

The removal of this subjective element of the test should now mean the same standard being applied to all criminal cases concerned with dishonesty and could potentially make it easier to secure a criminal conviction for dishonesty.