The test for dishonesty after Ivey v Genting and R v Barton
Leon, a self-employed builder, finishes a kitchen refit for a client and sends an invoice that includes £900 for materials he knows he never bought or used. He is charged with fraud by false representation. In interview he says that 'everyone in the trade pads their invoices' and that he did not think anyone would regard it as dishonest.
Which of the following best describes how the court will decide whether Leon acted dishonestly?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: The jury will establish Leon's actual knowledge or belief as to the facts, then decide whether his conduct was dishonest by the standards of ordinary decent people; his own view of them is irrelevant.
THE RULE TO REMEMBER
Dishonesty is judged by the standards of ordinary decent people, applied to the defendant's actual knowledge or belief as to the facts (Ivey; Barton).
The test for dishonesty after Ivey v Genting and R v Barton
Fraud by false representation requires that the defendant 'dishonestly' makes a false representation intending to make a gain or cause loss (s.2(1) Fraud Act 2006). The test for dishonesty in criminal cases is the one set out in Ivey v Genting Casinos [2017] UKSC 67 and confirmed in R v Barton and Booth [2020] EWCA Crim 575. The fact-finder first establishes the defendant's actual state of knowledge or belief as to the facts, then decides whether the conduct was dishonest by the objective standards of ordinary decent people. There is no further requirement that the defendant appreciated that his conduct was dishonest by those standards. Leon knew he had not used the materials, so his belief about trade practice does not help him.
Why B is wrong: This is the second, subjective limb of R v Ghosh, which no longer applies.
Why C is wrong: A defendant's belief about the honesty of his conduct, as opposed to his belief about the facts, is not the test.
Why D is wrong: Dishonesty is an express element of s.2(1)(a) Fraud Act 2006.
Why E is wrong: S.2 requires only an intention to make a gain or cause loss (or expose another to a risk of loss); actual loss is not needed.
That's today's practice done. Another featured question tomorrow.
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A GOOD HABIT, DELIVERED
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