R v Barton & Booth: clarifying the criminal test for dishonesty

R v Barton & Booth: clarifying the criminal test for dishonesty

The Court of Appeal confirms in the landmark case of R v Barton & Booth [2020] EWCA Crim 575 that the approach to dishonesty set out in Ivey v Genting Casinos is correct and is to be preferred to the two-stage test described in R v Ghosh.

Libby Anderson expands upon this:

The Criminal Dishonesty Test

Generations of law students have learnt the two-stage test for criminal dishonesty laid down in R v Ghosh [1982] QB 1053. To convict a defendant under the Ghosh test, the jury must be sure both that the defendant’s conduct was dishonest by the ordinary standards of reasonable people (the objective limb) and that the defendant appreciated that his conduct was dishonest by those standards (the subjective limb).

The subjective limb was a double-edged sword. It afforded some protection to defendants who committed what was objectively a dishonest act but did not realise they were doing so, but had the unintended effect of allowing defendants to escape liability due to their own warped moral compass.

After over 30 years following Ghosh, the Supreme Court case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 reconsidered the test for dishonesty, sending shockwaves throughout the criminal law community. The Supreme Court dispensed with the subjective limb, setting out a two-stage test asking (a) what was the defendant’s actual state of knowledge or belief as to the facts; and (b) was his conduct dishonest by the standards of ordinary decent people? The first limb is a subjective fact-finding exercise to be carried out in advance of the objective consideration of dishonesty. This brought the criminal test for dishonesty into line with the test applied in civil courts, removing the inconsistency that arose with the introduction of the Theft Act 1968.

Although this development was reflected in the Crown Court Compendium and practitioners’ texts including Archbold and Blackstone, the Supreme Court analysis was nevertheless obiter dicta, causing some divergent opinion as to its status. This was considered in the case of DPP v Patterson [2017] EWHC 2820 (Admin) in which Sir Brian Leveson P said at paragraph 16 of his judgment:

“These observations … were clearly obiter, and as a matter of strict precedent the court is bound by Ghosh, although the Court of Appeal could depart from that decision without the matter returning to the Supreme Court … Given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.”

The Court of Appeal finally got their chance when considering the appeal against conviction of David Barton and Rosemary Booth, the facts of which are set out below. At trial, the jury had been directed using the test for dishonesty set out in Ivey. The key consideration for the Court of Appeal was whether Ivey provides the correct approach to dishonesty and, if so, is it be followed in preference to the test described in Ghosh?

R v Barton & Booth [2020] EWCA Crim 575

Barton Park Nursing Home was a luxury nursing home, owned by David Barton and managed by Rosemary Booth. Mr Barton was said to have groomed and manipulated the residents of the luxury nursing home, isolating them from friends and family, in order to profit from them by assuming control of their finances. The case against Ms Booth was that as the confidante of vulnerable residents, she acted as Mr Barton’s ‘eyes and ears’ and assisted him in his fraudulent activity.

It was common ground that all the residents were very well-treated at Barton Park. Mr Barton’s case was that the money consisted of gifts from grateful residents who had acted with full capacity and with professional advice. He and Ms Booth both denied any dishonesty.

The trial took place between May 2017 and May 2018. Mr Barton and Ms Booth were convicted of a number of offences spanning almost 20 years, including several counts of conspiracy to defraud. Mr Barton was sentenced to a total of 21 years’ imprisonment, reduced to 17 years on appeal, and Ms Booth was sentenced to a total of 6 years’ imprisonment.

So what?

There are a number of practical implications arising from R v Barton & Booth.

This case provides much needed confirmation as to the appropriate test for criminal dishonesty, that is, the Ivey test. This test has the advantage of being simpler and easier for a jury to understand. However, with the removal of the subjective limb there is far greater scope for a defendant to be convicted, and careful consideration will need to be given as to how any defence based on lack of dishonesty is run.

The Lord Chief Justice observed that a range of consequential issues that will need to be decided following the decision in Ivey. It is not clear precisely what these consequential issues will be, although some can perhaps be anticipated, for example, issues surrounding the reasonableness of the defendant’s belief, wilful blindness, and the relationship between truthfulness and honesty. Criminal practitioners should therefore ensure that they keep abreast of any further developments in the law.

Finally, although this was an ‘exceptional case involving a high level of exploitative criminality’ against vulnerable victims and over a prolonged period of time, it is a salient reminder of the aggravation found in abuse of trust, reflected in the lengthy sentences passed against Mr Barton and Ms Booth.