Clarifying the Applicable Test for Dishonesty and Modifying Stare Decisis, but Otherwise a Missed Opportunity: R v Barton; R v Booth [2020] EWCA Crim 575
| Author | Samantha Pegg,Mark Thomas |
| DOI | 10.1177/0022018320949302 |
| Published date | 01 August 2020 |
| Date | 01 August 2020 |
| Subject Matter | Case Notes |
Case Note
Clarifying the Applicable Test
for Dishonesty and Modifying
Stare Decisis, but Otherwise
a Missed Opportunity
R v Barton; R v Booth [2020] EWCA Crim 575
Keywords
Dishonesty, precedent, stare decisis, capacity, civil law, theft
For 35 years, the Ghosh test (R v Ghosh [1982] QB 1053) stood as one of the defining features of
offences containing an element of dishonesty. The arbiters of fact being asked to consider whether an
offender’s conduct was dishonest to the standards of ordinary decent people and then to ask whether that
offender appreciated that he himself was dishonest by those standards. In 2017, however, the Supreme
Court in Ivey v Genting Casinos [2018] AC 391 concluded that the second subjective limb of Ghosh was
not representative of the law of England and Wales. Since then, academic debates have multiplied asking
the relatively simple question: Was Ivey binding on the criminal courts? On 29 April 2020, the debate
was settled. Barton and Booth concerns a clear and unequivocal statement from the Court of Appeal that
the second limb of Ghosh is no more; the test to be applied in cases of dishonesty is that in Ivey. While
the Court of Appeal have clarified that aspect of the law, this note suggests that Barton is, in totality, a
missed opportunity.
David Barton (DB) ran Barton Park Nursing Home, a luxury nursing home in Southport, Lancashire.
Rosemary Booth (RB) was the General Manager of said nursing home. The prosecution’s case pro-
ceeded on the basis that DB had had exploited a number of the residents at the nursing home over a
number of years. In particular, DB was alleged to have targeted wealthy elderly residents who were
childless. Through his exploitation, DB was gifted property by those residents, obtaining large cash gifts
in many circumstances. In some situations, DB was declared a residuary legatee in many of their wills,
and was provided with the power to make decisions in respect of the resident’s property (as next of kin or
through lasting power of attorney). The prosecution further alleged that DB had charged the residents
exorbitant fees and inflated the costs of services performed. In respect of RB, the charge proceeded on
account that she acted as DB’s ‘eyes and ears’ in the nursing home, assisting him with his fraudulent and
dishonest dealings. DB and RB were certainly not alone in their criminal venture, however. The judg-
ment identifies that DB was further assisted in his conduct by his solicitor, Thomas Mills, who died prior
to trial, Kiria Hughes, the bookkeeper at Barton Park who pled guilty to a single charge of conspiracy to
defraud. Furthermore, the prosecution proceeded against the family of DB also, with his wife being
charged with three counts of conspiracy to defraud and his two sons with transferring criminal property.
The numbers involved in this case demonstrates the extent of the conspiracies and fraudulent conduct
alleged.
Out of the 25 counts against him (a large number being in the alternative), DB was convicted of 10:
four counts of conspiracy to defraud, three coun ts of theft, one count of fraud, one count of false
accounting, and one count of transferring criminal property. DB was acquitted of five counts (two of
The Journal of Criminal Law
2020, Vol. 84(4) 385–391
ªThe Author(s) 2020
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DOI: 10.1177/0022018320949302
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