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The New Dishonesty Test: R v Barton and Booth (2020)

Updated: 2 days ago

In criminal law, dishonesty is an essential mens rea element in offences like theft, fraud, and obtaining property by deception. Over the years, judges have refined what it means to be "dishonest." One of the most important recent developments came from R v Barton and Booth (2020), which re-defined the test for dishonesty.

R v Barton and Booth (2020)
R v Barton and Booth (2020)

Dishonesty and the Theft Act 1968

Interestingly, dishonesty is not defined in Section 2 of the Theft Act 1968. Instead, the Act provides three specific situations where a defendant’s conduct is not considered dishonest:

  1. If they believe they have a legal right to the property;

  2. If they believe the owner would have consented to the taking; or

  3. If they believe the owner cannot be found by taking reasonable steps.


Outside of these exceptions, dishonesty has been defined almost entirely by case law, particularly R v Ghosh (1982), Ivey v Genting Casinos (2017), and now R v Barton and Booth (2020).


The Dishonesty Test: What Changed?

Ghosh Test (1982) - The Old Standard:

  1. Was the act dishonest by the ordinary standards of reasonable people? (Objective)

  2. Did the defendant realise that what they were doing was dishonest by those standards? (Subjective)


Problem: A defendant could argue they personally didn’t realise it was dishonest, creating loopholes for morally questionable behaviour.


Ivey Test (2017) - The New Standard (Confirmed in Barton):

  1. What were the facts as the defendant believed them to be? (Subjective belief about facts only)

  2. Would an ordinary decent person consider the conduct dishonest? (Objective)


This removes the second limb of Ghosh and ensures that defendants are judged by common moral standards, not their personal sense of right and wrong.


Barton & Booth Test (2020): The Court confirmed that even though Ivey was a civil case, its reasoning applies equally in criminal trials. The 2 part test from Ivey is now the test in criminal cases.


The new test for dishonesty
Theft - Dishonesty Test - Free Activity Pack

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