Dishonesty (Ivey Test)

CPS legal guidance on theft confirms that "the leading case on the test for \"dishonesty\" is the Supreme Court case of Ivey v Genting Casinos [2018] AC 391", and that its approach was subsequently adopted for criminal cases by the Court of Appeal in R v Barton and Booth [2020] EWCA Crim 575. Ivey replaced the older two-limb test from R v Ghosh, which had also asked whether the defendant realised that ordinary people would regard the conduct as dishonest - a subjective 'appreciation' element that the Supreme Court in Ivey held to be wrong in principle, since it allowed a defendant with a skewed personal moral compass to escape liability. Under the Ivey approach, guidance confirms that "the Court/jury must consider the following two-stage test", which strips the assessment back to fact-finding followed by a single objective evaluation.

The first stage is entirely factual in the sense that it is about what the particular defendant actually knew or believed, not what a reasonable person would have known: the tribunal must determine "what was the defendant’s actual state of knowledge or belief as to the facts". Once that factual picture is fixed, the second stage applies a wholly objective standard, asking "was the defendant’s conduct dishonest by the standards of ordinary decent people?" - with no further requirement that the defendant recognised their own conduct as dishonest by those standards. Because dishonesty is a foundational element of theft, fraud, and most other acquisitive property offences under the Theft Acts and the Fraud Act 2006, the Ivey formulation now governs jury directions across the great bulk of dishonesty-based prosecutions in England and Wales.