R v Barton and Booth [2020] EWCA Crim 575

Barton owned a nursing home and Booth was its general manager. Over several years, they obtained substantial sums from vulnerable and wealthy residents through transactions that the prosecution alleged were exploitative and dishonest. Following a lengthy trial, Barton was convicted of multiple offences including conspiracy to defraud and theft, while Booth was convicted of conspiracy to defraud. Their trial took place after the Supreme Court's decision in Ivey v Genting Casinos, and the judge directed the jury using its approach to dishonesty rather than the older two-stage test in R v Ghosh. The defendants appealed, arguing that Ivey was a civil case whose discussion of criminal dishonesty was not binding.

Is the test for criminal dishonesty governed by Ivey or Ghosh, and does it require proof that the defendant realised ordinary people would regard the conduct as dishonest?

A specially constituted Court of Appeal dismissed the conviction appeals and confirmed that the Ivey approach represents the law of criminal dishonesty. The fact-finder must first determine the defendant's actual belief as to the facts. Whether the conduct was dishonest is then judged objectively by the standards of ordinary decent people. There is no further requirement that the defendant appreciated that those people would regard the conduct as dishonest. Although the relevant discussion in Ivey was technically obiter, the Supreme Court had clearly directed that Ghosh should no longer be followed. The convictions were safe. Barton's separate sentence appeal was allowed, reducing his overall term from 21 to 17 years.

For offences requiring dishonesty, the tribunal first finds the facts as the defendant genuinely believed them. It then asks whether, on those believed facts, the conduct was dishonest by the standards of ordinary decent people. The defendant need not realise that others would describe the conduct as dishonest.

The case supplies binding criminal authority for the test formulated in Ivey and removes doubt caused by its technically non-binding origin. It replaces the second, subjective limb of Ghosh, while preserving a subjective inquiry into the defendant's belief about facts. The approach applies across theft, fraud and other dishonesty offences unless legislation provides a specific rule. Students should not call the test wholly objective: a defendant's honest factual belief is established before the objective community standard is applied. The decision is now the starting point for any contemporary dishonesty problem.