R v Barton and Booth

The Court of Appeal held that an obiter statement of the Supreme Court in Ivey had replaced the Ghosh test for dishonesty in criminal law.

Citation
[2020] EWCA Crim 575, [2021] QB 685
Court
Court of Appeal (Criminal Division)
Year
2020
Subject
English Legal System
Topic
Judicial precedent

Facts

David Barton ran a care home and was convicted of offences including theft and fraud, after manipulating and stealing from wealthy elderly residents. Mr Booth was a co-defendant. The trial judge directed the jury on dishonesty using the test set out by the Supreme Court in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, rather than the two stage test in R v Ghosh [1982] QB 1053, a decision of the Court of Appeal. The defendants argued that the statement in Ivey was obiter, because Ivey was a civil case, and that the Court of Appeal remained bound by Ghosh.

Legal principle

The Court of Appeal, sitting as a court of five, held that the test in Ivey applied in criminal cases. Lord Burnett CJ said that, although the relevant part of Ivey was strictly obiter, the circumstances were exceptional: the Supreme Court had considered the question fully and had expressly said that Ghosh did not correctly represent the law, so a further appeal to the Supreme Court would inevitably reach the same result. In those circumstances, the Court of Appeal could follow the Supreme Court's statement in preference to its own earlier decision. The decision is an important statement of the effect of obiter dicta of the Supreme Court.

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