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Barton and Booth  EWCA Crim 575
Geoffrey Payne and Sushil Kumar, instructed by JD Spicer Zeb, represented one of the appellants in a groundbreaking new case which is likely to set the course of the criminal law in relation to dishonesty for decades to come. For 35 years, juries were directed in accordance with a case called Ghosh  QB 1053. That test required juries to consider whether what a defendant did was, by the standards of ordinary, decent people, dishonest and then, if it was, whether the defendant but have realised that was so. It was a combination of subjectivity and objectivity but it depended, principally, on the appreciation of the defendant. In Barton and Booth  EWCA Crim 575, a five judge Court of Appeal presided over by the Lord Chief Justice overturned that test and replaced it with the civil law formulation as set out in Ivey v Genting Casinos  UKSC 67. That test required a jury to first ascertain the state of mind of the defendant concerned and then to ask whether it was dishonest by reference to the standards of ordinary, decent people. That leaves open the prospect of people being condemned as dishonest without ever realising that was the case. It also leaves unanswered a number of questions for the future. The new test does not sit well with section 2 of the Theft Act 1968 which sets out three states of mind which are not to be regarded as dishonest. Nor does it neatly dovetail with the requirements of a statutory conspiracy that a defendant must actually know the nature of the agreement they are joining which, in the case of fraud, would be a dishonest agreement. The court indicated that those would be matters to considered another day as cases are decided. It is likely that many more matters will be taken on appeal following this case.