Legal Cheek

Major criminal syllabus shake-up as Ghosh test is overruled

Time to amend your notes

Get your Tipp-Ex out law students, the second limb of the Ghosh test has been overruled.

This is because the Supreme Court has now made its ruling in Ivey v Genting Casinos, which asked it to consider the second, subjective element to the R v Ghosh legal principle.

This limb means that to prove dishonesty in, for example, theft and fraud cases the accused must have realised that what they were doing was, by the standards of a reasonable person, dishonest. This element protects people who commit objectively dishonest behaviour but don’t realise they are doing so, like an unwitting tourist jumping on a London bus (the Clapham omnibus, perhaps) without paying.

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This test has been a law student staple since its creation in the 1980s, and tends to be used in professional disciplinary hearings too. Now, it’s time for textbooks and lecture notes to be rewritten as the Supreme Court has decided, unanimously, that:

“[T]he second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given… When once [the accused’s] 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.”

These are the words of Lord Hughes, with whom his four colleagues sitting on the bench also agreed. A big, overruling case like that being heard by a bench of just five judges may irk some (remember the Gina Miler Article 50 case was heard by all 11 judges).

Too few judges or not, the ruling will have a big impact. Legal Cheek asked Findlay Stark, a criminal law lecturer at the University of Cambridge, whether this case will impact law school syllabuses. He replied:

“Yes. Students will have to be aware of the disapproval of the second limb of the Ghosh test by the Supreme Court in Ivey and consider: how Lord Hughes’ test actually differs from the two-limbed approach in Ghosh [and more]… I imagine it’s game over for Ghosh.”

The appeal in question was brought by top poker player Phil Ivey, who had won £7.7 million in a Mayfair casino in 2012. Genting Casinos, the respondent in this case, said Ivey was not entitled to the multi-million pound pay-out because he had used a technique called “edge-sorting”, which they considered to be cheating. Ivey, represented by 39 Essex Chambers’ Richard Spearman QC and Wilberforce Chambers’ Max Mallin QC, argued he did not consider edge-sorting to be cheating and, therefore, the subjective limb of Ghosh could not be made out.

In the words of Iain Miller, from the respondent law firm Kingsley Napley: “It is now clear that the Ghosh test is no longer good law… There are relatively few cases that so dramatically change the predominant approach in a given area but this is one of them.” Expect a textbook re-write to follow.

Read the judgment in full here: