R v Ghosh [1982] QB 1053; Ivey v Genting Casinos (UK) Ltd t/...

Facts

• Before R v Ghosh [1982] QB 1053, the legal standard for dishonesty in criminal law was inconsistent, lacking a clear definition under the Theft Act 1968.
• Judicial interpretation was required as section 2 of the Theft Act 1968 only provided negative definitions for dishonesty and did not set a comprehensive test.
• The Ghosh case arose from charges involving deception related to surgical operations and fees.
• Confusion in jury assessments led to the Ghosh decision establishing a structured approach for determining dishonesty in theft, fraud, and related offenses.
• Subsequent concerns regarding the Ghosh test’s application prompted judicial reevaluation, culminating in the Supreme Court’s intervention in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.
• Later developments included Group Seven Limited & Ors v Notable Services LLP & Ors [2019] EWCA Civ 614 addressing ‘blind-eye knowledge’ in the context of dishonest assistance.

Issues

1. Whether a test for dishonesty under the Theft Act 1968 should include both objective and subjective elements.
2. Whether a defendant’s own understanding of dishonesty should be relevant in assessing criminal liability.
3. Whether the two-stage Ghosh test provided clarity and consistency in criminal prosecutions.
4. Whether the subjective limb of the Ghosh test should be overruled in favor of a purely objective standard post-Ivey.
5. How the concept of ‘blind-eye knowledge’ affects the assessment of dishonesty following Ivey.

Decision

• The Ghosh test established a two-stage assessment: (a) whether conduct was dishonest by the standards of ordinary reasonable people, and (b) whether the defendant realized that conduct was dishonest by those standards.
• This test required the prosecution to prove both an objective dishonest act and the defendant’s subjective recognition of such dishonesty.
• The subjective limb was criticized for potential unfairness and inconsistent jury application, allowing defendants with unorthodox beliefs to escape liability.
• In Ivey v Genting Casinos, the Supreme Court overruled the subjective limb, holding the relevant test is whether conduct was dishonest by the standards of ordinary, decent people, regardless of the defendant’s beliefs.
• The court now first determines the defendant's actual state of knowledge or belief as to the facts, then judges that conduct against objective standards.
• Post-Ivey, in Group Seven Limited, ‘blind-eye knowledge’ was recognized as qualifying knowledge for dishonesty, if there was a conscious decision not to inquire further to avoid confirming suspicions.

Legal Principles

• The Ghosh test combined an objective element (societal standards) with a subjective element (defendant’s awareness).
• Criticism centered on the subjective limb, which enabled defendants with abnormal morals to potentially avoid liability and complicated jury directions.
• Ivey replaced Ghosh’s subjective limb with a wholly objective standard: dishonesty is judged by ordinary, decent people's standards based on what the defendant knew or believed.
• Blind-eye knowledge occurs when a person deliberately avoids confirming facts they suspect to be true, which suffices as knowledge for determining dishonesty post-Ivey.
• Current law aligns the approach for criminal and civil dishonesty, emphasizing objective societal norms.

Conclusion

The legal approach to dishonesty in English criminal law shifted from the Ghosh two-stage test—which included a subjective awareness element—to the purely objective standard established by Ivey v Genting Casinos, aligning the criminal standard with civil law and reaffirming the focus on community norms over individual perceptions. Subsequent case law has clarified the relevance of a defendant’s knowledge or belief—including conscious avoidance—in applying the objective dishonesty standard.