The presented legal essay outlines the impact of the decision rendered in the case of Ivey v. Genting Casinos (UK) Ltd which was a revised judgment and certain amendments were made in the criminal law test for dishonesty. Initially, the judgment rendered in the case of R v. Ghosh  EWCA Crim 2 was widely recognised where the judges advised the jury member that whether dishonestly is established in the cases where the allegation is of theft and fraud. The presented essay outlines the cases of Ghosh and Ivey where the Ghosh case was decided first and the Ivey case subsequently. Further, the essay also discusses whether the judgment is satisfactory as per the present scenario.
The test laid down in the case of Ghosh considered the two-part test where the jury members considered whether the conduct for which the complaint was made was dishonest under the standards laid down as per ordinary and reasonable people. In other words, this was the objective test and if yes, the second requisite was whether it could have been realised by the defendant that ordinary and reasonable people would regard this behaviour or not that is the subjective test. The jury considered both the questions to be a requisite element to find the defendant guilty and the answer to both questions was required to be yes (Leggett, 2020).
But the new test for the criminal law dishonesty was laid down in the case of Ivey where the supreme court justice held that the second requirement in the Ghosh case that is the subjective test does not provide for the correct representation of Law assignment and such directions based on this test are no longer required to be given by the judges to the jury.
Facts of the case
As per the facts of the case, Ivey was a professional poker player who played against Genting Casinos. The Casino once refused to pay Ivey his winning amount which was £7.7 million on the ground that the player had cheated. Mr Ivey used a technique called edge sorting where he noticed some unintentional differences on the backside of the card and then manipulated the placement of high-value card in shoes. He did this sorting by asking the croupier to place some of the cards in a different direction and he placed it on the grounds of superstition. As per the contract between the parties, there was an implied agreement in betting that neither party shall cheat. Mr Ivey contended that cheating required a dishonest approach and intention. As per the judgement of the High Court, Mr Ivey was found guilty and he was cheating. On an appeal, the Court of Appeal gave the judgment against Mr Ivey and agreed with the High Court. Hence, Mr Ivey appealed in the Supreme Court.
The subject matter of this case was cheating in the game of cards which required an element of dishonesty on the cheater’s part and the Supreme Court relied on this question in negative. As the majority of the judges were with the view that the Ghosh test should be applied in the Ivey case as a judicial precedent but it was Lord Hughes who asserted that the application of the Ghosh test is not appropriate in the case of Ivey or any other in the future (Ellison, 2020).Hence, the Supreme Court considered a wider definition of dishonesty. The test, in this case, removed the second requirement in the Ghosh test and held that it is not important for the defendant to appreciate that what he did is under standards considered as dishonest. Moreover, this test of Ivey was also accepted in the case of R v. Pabon  EWCA Crim 420 by Gross LJ and the jury also noted and held that in matters of dishonesty, it the Ivey test which shall be followed and not the Ghosh test.
In the press summary, the court held in the following words-
“The second leg of the principal rule followed in the case of Ghosh has some serious problems in it. The principal objection identified by the court is that the less the defendant conforms to society's expectation, the less likely is the defendant to be held criminally liable for his actions. also, the law should be strict in interpreting and should not excuse those who make mistake in understanding the contemporary standards of honesty as these standards are the purpose and base of criminal law which sets the standards and expected behaviour”(Griffiths, 2020).
Hence, it can be observed that the Supreme court in interpreting Ivey's case held that, if cheating in the game of gambling required an extra element of dishonesty, this element has been satisfactorily fulfilled.
This was another case where the above-mentioned test was taken into consideration as in these cases the application of the law was considered to be unsatisfactory on the side of the defendants. As per the facts of the case, the appellants, in this case, worked at a nursing home where they exploited the vulnerable residential area at the nursing home intending to make large profits by various other ways like getting expensive gifts and also charging heavy fees to make them remain at the home. Also, the appellants treated the victims inhumanly and all the transactions through which the appellants got money were from the side of the victim which were one willingly. Hence, the appellants were charged with the offence of conspiracy and theft. Barton's case was that of money which he received genuinely from the victims as fees and hence, he denied that he was dishonest in any way and both of them were referred to Crown Court where the jury was to decide using the Ivey test (Tosza, 2018).
The court held that the Court of Appeal shall follow the judgment of the Ivey case and the test of considering dishonesty in any activity and all the criminal cases is that which has been established under the Ivey test.
As the matter is being cleared from the above discussion that the Ivey test is being applied in the matters of dishonesty and criminal cases considering dishonesty, but it has been analysed that this test is now unsatisfactory from the side of defendants. The Court of Appeal was not happy with the judgment in the Barton and Booth case as it was of the view that the Ivey test considers the state of mind of the defendant where it is incorporated that all the facts were known to the defendants and that he was knowing what he was doing. This case is thus unconvincing and the Court of Appeal held that this was merely a restatement of what was laid down in the Ghosh test and not a rejection of it (Horder, 2020). The Court of Appeal also stated that applying this test would lead to the conviction of the defendant even if he genuinely believed that he was acting honestly merely because his conduct was not considered honest in the eyes of society.
Hence, it can be stated that the judgment of the Ivey test considered conviction applying a broad concept of dishonesty. Hence. It can also be stated that the defendant on following this case shall be convicted if he falls short in conduct notwithstanding his culpable mind and intention.
Thus, to conclude it can be clearly stated that the assessment of the definition of dishonesty as per the judgment of the Ivey case or the Ghosh case has been resolved to the disadvantage of the defendant. But the application of the judgment of the Ivey case and its subsequent adoption by the Court of Appeal without reference to the Supreme Court shall state potential problems for the future. Hence, this shall make the jury rely on the facts that are known to the defendant and a refined version of the Ghosh test is expected to be applied in the future. Also, it can be concluded that on analysing the situations of the above-mentioned case, it is recommended that the court should only consider the situation of the defendant’s mind in the case and make an attempt to realise whether the defendant had malafide intention to commit the act or not (Dougall, 2019). Though the application of the objective test is also important as it is important to consider whether the act done by the defendant shall be done by a man of ordinary prudence or not, the court shall limit this application and attempt to know the position of the defendant's mind.
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