By Richard Thomas
Dishonesty – Precedent – Conspiracy to Defraud
R v David Barton & Rosemary Booth
 EWCA Crim 2020
Mr Barton ran a luxury nursing home of which Ms Booth was the general manager. The residents enjoyed living at the home and were well treated and well looked after. The prosecution case was that Mr Barton, with the assistance of Ms Booth, befriended and ‘groomed’ some wealthy and vulnerable residents and then dishonestly exploited this friendship in order to enrich himself: he did so by obtaining large cash gifts and loans from the residents, becoming beneficiaries of their wills, and selling items to them, such as Rolls-Royce motor cars, at inflated prices. The residents who were the victims of these practices were willing to agree to the transactions and had the capacity to do so, but the prosecution case was they were highly vulnerable and isolated from advisers at the time when they did so. Mr Barton enriched himself to the tune of over £4 million. Both were convicted of conspiracy to defraud and Mr Barton to various other counts of theft, false accounting, and transferring criminal property. They appealed against their convictions (and sentences, which will not be addressed here).
This judgment of a five-judge Court of Appeal including the Lord Chief Justice, the President of the QBD and the Vice-President of the CACD brings clarity – if clarity was needed - to the test for dishonesty and in doing so confirms the common law approach to precedent has been altered. Those aspects of the judgment are straightforward. What is more problematic is the Court’s treatment of how, in conspiracy to defraud, the element of ‘unlawfulness’ is identified as part of a dishonest agreement.
In Ivey v Genting Casinos (UK) Ltd  1 AC 391, Lord Hughes explained why the law had taken a wrong turn in R v Ghosh  QB 1053 and indicated that for the future the following two stage test should be followed: (a) what was the defendant’s actual state of knowledge or belief as to the facts; and (b) was his conduct dishonest by the standards of ordinary decent people?
In the opening paragraph of Barton & Booth, the Lord Chief Justice states “[t]hese appeals provide an opportunity for the uncertainty which has followed the decision in Ivey to come to an end”. The approach in Ivey is correct and is to be preferred. Unsurprisingly, the Ivey test is here to stay.
An offence of dishonesty can therefore be committed by a person who did not appreciate his or her actions were dishonest. But it is important to note that the first stage – i.e. establishing a defendant’s actual state of mind or knowledge as to the facts – does not require that the belief is reasonable, only that it is genuinely held. It is only to this ‘subjective’ knowledge or belief that the ‘objective’ test of dishonesty is applied. This will involve a consideration of the experience and intelligence of the accused. In R v AB & CD  1 WLR 3647, Lord Hughes took the same approach in finding that ‘reasonable grounds to suspect’ did not require actual suspicion: “But the accused’s state of mind is not, as it is in offences which are truly of strict liability, irrelevant. The requirement that there exist objectively assessed cause for suspicion focuses attention on what information the accused had. As the Crown agreed before this court, that requirement is satisfied when, on the information available to the accused, a reasonable person would (not might or could) suspect that the money might be used for terrorism. The state of mind of such a person is, whilst clearly less culpable than that of a person who knows that the money may be used for that purpose, not accurately described as in no way blameworthy”.
The discussion on dishonesty in Ivey was strictly obiter because it was not necessary for the decision of the Court. A strict application of the doctrine of stare decisis required therefore the Court of Appeal to follow Ghosh and for the case to return to the Supreme Court. The Court concluded however that the ‘undoubted reality’ was that the Supreme Court in Ivey had altered the established common law approach to precedent in the criminal courts by stating that the test for dishonesty they identified, albeit strictly contained in obiter dicta, should be followed in preference to an otherwise binding authority. The Court did not consider the Supreme Court had gone beyond its powers in acting in that way.
Conspiracy to Defraud
An essential element of the offence is ‘unlawfulness’. Unlawfulness is a requirement separate to dishonesty but the Court held “There is no requirement of ‘unlawfulness’ or ‘aggravating feature’ over and above a dishonest agreement which includes an element of unlawfulness in its object or means”. The difficulty is that whilst the dishonesty in the case is obvious, neither the indictment nor the jury directions appeared to make clear the unlawfulness: the particulars of the indictment included “dishonestly exploiting their position” and directions to the jury made reference to “preying upon that vulnerability”. These expressions capture dishonesty, but not unlawfulness. The Court of Appeal’s dealt with this thorny issue as follows: “The trial concerned allegations that the appellants sought to persuade the victims, by way of extensive deceptions and lies, into parting with their property. In our judgment there can be no doubt that the jury understood that the prosecution needed to establish that there was a dishonest agreement on the part of the appellants, by deceit or lies, to prejudice the proprietary rights or interests of the victims by obtaining property to which they were not entitled”. That is problematic because if in neither the indictment nor in the directions they received reference was made to lies and deceit, how is it that the jury was able properly to assess what was required to be proved?
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