give up the ghosh - supreme court directs a change in the law on dishonestly after 35 years.

As solicitors acting for regulated professionals in all manner of proceedings and very often those which concern allegations of dishonesty, we are all very used to applying what has become known as the “Ghosh test" in relation to allegations of dishonesty.

This colloquial title came from the case of R v Ghosh [1982] EWCA Crim 2. This was a criminal case which set out the test for dishonesty as long ago as 1982.

Dr Ghosh was a surgeon who who was convicted of four offences under the Theft Act 1968 sections 20(2) and 15(1). During his work as a locum surgeon he obtained money by claiming fees for work that others had carried out, or that had been carried out under England's National Health Service. The jury found him guilty and he appealed on the basis that the trial judge had told the jury to use their common sense to determine whether the accused's conduct had been dishonest or not. Ghosh argued that the judge should have instructed the jury that dishonesty was about the accused’s state of mind (a subjective test) rather than the jury’s point of view (an objective test).

Since the judgement in this case, practitioners and decision makers have applied this two stage test when considering cases involving alleged dishonesty:

  • Firstly it must be decided, whether according to the ordinary standards of reasonable and honest people , that what was done was dishonest and;
  • If it was dishonest then the decision maker must consider whether the defendant himself must have realised that what he was doing was, by those standards, dishonest.

The test therefore involved both an objective and a subjective element before allegations of dishonesty could be found to be proved.

In October 2017 however, this all changed following the judgment in the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67

In this landmark decision the Supreme Court amended the test for dishonesty to that of a single standard, the two stage test in the Ghosh case therefore becoming obsolete.

how has the law changed in relation to dishonesty?

Accordingly the test for dishonesty is now a one stage test with the Supreme Court stating as follows:

“The fact-finding tribunal must ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

This is huge news as this is the first time there has been a change to the law in relation to dishonesty allegations for some 35 years.

This change affects anyone facing dishonesty allegations before a fitness to practise panel or in criminal proceedings and arguably makes it easier for a dishonesty allegation to be found proved.

If you are a professional facing dishonesty allegations before your regulatory body or in relation to criminal proceedings, contact our specialist team today on 0161 827 9500.

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Charlotte Ellis - Burton Copeland