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Before we start it might useful to see where we were pre-Ivey and where we are now. This comes from a gloss of the judgment.

Where we were. Crime. "Dishonesty is included in the definition of some but not all acquisitive criminal offences. [52] R v Ghosh [1982] EWCA Crim 2 introduced a two-stage test for dishonesty for a jury to apply, with a subjective second leg.

Firstly, the jury must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people. If the answer is no, that disposes of the case in favour of the defendant.

But if the answer is yes, it must ask, secondly, whether the defendant must have realised that ordinary honest people would so regard his behaviour as dishonest, and he is to be convicted only if the answer to that second question is yes. However, the second leg of the rule adopted in Ghosh has serious problems. The principal objection is that the less a defendant’s standards conform to society’s expectations, the less likely they are to be held criminally responsible for their behaviour. The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour. [54, 57-59]

[Civil] In civil actions the law has settled on an objective test of dishonesty. There can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution. [62-63]

[Now] The second leg of the test propounded in Ghosh does not correctly represent the law and directions based upon it ought no longer to be given. The test of dishonesty is that used in civil actions.

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. [74]"

Whatever, the test for dishonesty it must involve some objective standard for deciding whether the facts establish it. We can argue until the cows come home whether Mr Ivey saw an advantage and engineered a plan to maximise it or whether he cheated or whether cheating is dishonest. But they are matters of fact to be judged according to the standards of ordinary people or whatever replaces it. I assume that in a criminal trial only the first and third would in reality be in issue.

Plainly a golfer testing the wind is using his skill and judgement just as his opponent can. Diving football players are cheats. Having read the Ivey judgment I, as an ordinary person, am satisfied that taking his conduct overall he cheated and in the end to such a degree that he engineered his win dishonestly. He rigged the game. Others will, while applying the test, disagree.

The second leg of Ghosh meant that the dafter the justification the harder it was to prove dishonesty. If I said that I genuinely believed that all property was commonly owned I couldn't steal it.

The present test has the simplicity of leaving it to the jury to decide on an objective basis. They can reflect current mores.

Having dealt with juries, they are sensible people. I recall one acquitting a defendant of one count of receiving - he thought it odd but OK - but convicting him of the second count.

A committee definition may be a simple rule then set about with ifs and buts. And someone has to decide the issue.

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