One month on from our talk on dishonesty and lack of integrity in disciplinary proceedings given at the 4 New Square Professional Liability & Regulatory Conference, the law has undergone a significant change. This has had the effect of rendering our topical review something of an historical artefact.
Last week, the Supreme Court handed down judgment in Ivey v Genting Casinos [2017] UKSC 67. By a unanimous judgment, the Court held that R v Ghosh [1982] EWCA Crim 2, no longer represented the law and that directions based upon it should no longer be given. The Supreme Court explained its analysis by reference to the example cited in Ghosh, that of a man coming from a country where public transport was free to the UK, where he travels on a bus without paying. The Supreme Court held that the second limb of the Ghosh test was unnecessary to save this man from a finding of dishonesty. He would inevitably escape conviction by the application of the first – objective – limb, because to determine the honesty of his conduct one must ask first what he knew or believed about the facts or circumstances of his actions. Because he genuinely believed that public transport is free, there is nothing objectively dishonest in his not paying for the bus (paragraph 60).
The Supreme Court concluded that the test for dishonesty in criminal proceedings would henceforth be that set out by Lord Nicholls in Royal Brunei Airlines v Tan and Lord Hoffman in Barlow Clowes – “if by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards”. Paragraph 74 of the Supreme Court’s decision will now become the touchstone for all criminal, civil and – it must inevitably follow – disciplinary proceedings:
“… When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying 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.”
There are three points which are of particular note in the regulatory/disciplinary field following this decision:
- First, the decision of Bryant v The Law Society [2007] EWHC 3043 (Admin)which imported the test from Ghosh as set out in Twinsectra v Yardley[2002] UKHL 12 into the civil contest, has been impliedly overruled. Ivey must now represent the law in the disciplinary field. As Lord Hughes commented at paragraph 57(4), the existence of different tests in civil and criminal fields was an “unprincipled divergence”.
- Second, Ivey has not diminished the importance of the findings relating to the state of the defendant’s actual knowledge or belief as to the facts; it is only the defendant’s belief as to the reasonable person’s standard of honesty as applied to those facts which is no longer relevant. It would be wrong to suggest that the test is objective only.
- Third, the judgment raises a question about the role played by lack of integrity in disciplinary matters. This will no doubt be aired in the Court of Appeal in the not too distant future, permission to appeal having been granted in SRA v Wingate and Evans [2016] EWHC 3455 and sought by the SRA in Malins v SRA [2017] EWHC 835 (Admin), a decision deprecated by the Divisional Court in Williams v SRA [2017] EWHC 1478 (Admin).
A link to the judgment in Ivey can be found here and Helen Evans’ note of the decision is available here.
Article written by Paul Parker and Benjamin Fowler.
Disclaimer: this article is not to be relied on as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
