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Fraud case redefines the legal test for 'dishonesty' in criminal law


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Aspects of theft and fraud cases to be considered by a jury simplified following Appeal Court judgment.


Date - 5th May 2020
By - Gary Mason

A long running fraud case relating to the conviction of a dishonest care home owner who defrauded wealthy residents of more than £4m has clarified the definition of dishonesty in criminal law.

In a ground-breaking judgment heard at the Court of Appeal, the ruling now means that juries must consider all the facts in the case, including the defendant’s knowledge or belief in the facts, before deciding whether the defendant’s behaviour is dishonest by the standards of ordinary reasonable people.

Previously, to prove that someone had acted dishonestly in theft or fraud cases, the jury had to find that:

The defendant’s conduct was dishonest by the standards of ordinary, reasonable people; and

The defendant appreciated that what he or she did was dishonest by the standards of those ordinary, reasonable people.  

David Barton was jailed at Liverpool Crown Court for 17 years following a year-long trial and appeal. The jury heard evidence of a sustained course of dishonesty in which Barton targeted wealthy residents at the care home he owned in Southport.

He persuaded them to pay him excessive amounts to cover care fees and to make him a beneficiary in their wills to dishonestly profit from them.

Andrew West, a Specialist Prosecutor in the CPS’s fraud division said: “This judgement means that David Barton’s offending will be remembered for clarifying the legal test for dishonesty in criminal cases.

“Barton’s offending spanned twenty years. He dishonestly targeted, befriended and groomed wealthy and childless elderly people in his care home, taking advantage of their vulnerability towards the end of their lives. Manipulating them and isolating them from their family, friends and professional advisors, enabled him to dishonestly profit from them.

“The test for dishonesty to be applied by a jury, is now straightforward; firstly, they will consider, as part of their fact-finding duty, the defendant’s knowledge or belief as to what going on i.e. what made the defendant act as they did. They will then apply the standards of ordinary reasonable people to judge that behaviour.”

On 20 and 21 January this year, the Court of Appeal heard appeals against the convictions of David Barton and Rosemary Booth for their sustained frauds against older people.

HHJ Everett, who presided over the trial of Barton and Booth, directed the jury to consider the behaviour of the defendants according to their own standards of what was honest or dishonest, and not to speculate whether the defendants appreciated that people would find their behaviour dishonest.

Barton and Booth appealed their convictions on the basis that this direction was contrary to the proper legal test for dishonesty. However, the decision to refuse the appeal is significant as it clarifies the test to be used in all criminal cases involving allegations of dishonesty.

The Lord Chief Justice stated: “We wish to endorse the respondent’s submission that the test of dishonesty formulated in Ivey remains a test of the defendant’s state of mind – his or her knowledge or belief – to which the standards of ordinary decent people are applied.  This results in dishonesty being assessed by reference to society’s standards rather than the defendant’s understanding of those standards.”

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