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Published online by Cambridge University Press: 14 January 2020
The UK Supreme Court took the opportunity in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 to reverse the long-standing, but unpopular, test for dishonesty in R v Ghosh. It reduced the relevance of subjectivity in the test of dishonesty, and brought the civil and the criminal law approaches to dishonesty into line by adopting the test as laid down in Royal Brunei Airlines Sdn Bhd v Tan. This paper employs extensive legal historical research to demonstrate that the Supreme Court in Ivey was too quick to dismiss the significance of the historical roots of dishonesty. Through an innovative and comprehensive historical framework of fraud, this paper demonstrates that dishonesty has long been a central pillar of the actus reus of deceptive offences. The recognition of such significance permits us to situate the role of dishonesty in contemporary criminal property offences. This historical analysis further demonstrates that the Justices erroneously overlooked centuries of jurisprudence in their haste to unite civil and criminal law tests for dishonesty.
I would like to thank Lindsay Farmer, Dave Campbell, and Dave Ellis for giving very helpful feedback on earlier drafts of this article. I would also like to thank Angus MacCulloch, Phil Lawton, and the Lancaster Law School Peer Review College for their guidance in developing this paper. Lastly, I wish to thank the Legal Studies reviewers for their very detailed and beneficial recommendations.
1 R v Ghosh [1982] 3 WLR 110.
2 Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 at [48]. The mens rea of ‘fraudulently’ was replaced with dishonesty in R v Williams [1953] 1 QB 660. This made the test about the state of mind of the accused, although the Justices then argue the trial judge in Ivey was right in deciding that what was cheating was a matter for the court and was an objective test (whether the act was cheating but not the mens rea).
3 [1995] 2 AC 37.
4 Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37, [2006] 1 WLR 1476, Lord Hoffmann at 1479–1480.
5 Ivey, above n 2, at [74].
6 R v Ghosh [1982] 3 WLR 110.
7 K Laird ‘Case comment: dishonesty: Ivey v Genting Casinos UK Ltd (t/a Crockfords Club)’ (2018) Criminal Law Review 395.
8 It is acknowledged that the Justices, at para 43, make clear that cheating at gambling is sui generis but they then go on to use the discussion of cheating in gambling to open a far wider discussion regarding dishonesty in other offences. This paper is engaging with this wider spirit of the judgment.
9 Cheating has an earlier history, though this paper uses sources from the Tudor period onward.
10 [2000] UKHL 53.
11 Above n 2, at [17].
12 Above n 2, at [27].
13 R v Scott [1975] AC 819.
14 Ibid, at [26]–[51].
15 This was not the sole focus of the judgment, see above n 8.
16 Above n 7.
17 R v Hayes [2015] EWCA Crim 1994, [2018] 1 Cr App R 10.
18 Above n 2, at [47].
19 Ibid, at [38].
20 Ibid, at [47].
21 Ibid, at [47].
22 For modern discussions of fraud and white-collar crime see Locker, JP and Godfrey, B ‘Ontological boundaries and temporal watersheds in the development of white-collar crime (2006) 46 British Journal of Criminology 976CrossRefGoogle Scholar; Shapiro, SP ‘Collaring the crime, not the criminal: reconstructing the concept of white-collar crime’ (1990) 55(3) American Sociological Review 346CrossRefGoogle Scholar; Sutherland, ED ‘Is “white collar crime” crime?’ (1944) 10(2) American Sociological Review 132CrossRefGoogle Scholar; Wilson, SThe Origins of Modern Financial Crime. Historical Foundations and Current Problems in Britain (Routledge, 2014)CrossRefGoogle Scholar; Wilson, G and Wilson, S ‘Can the general fraud offence “get the law right”?: some perspectives on the “problem” of financial crime’ (2007) 71(1) Journal of Criminal Law 36CrossRefGoogle Scholar.
23 An earlier formation of these doctrines can be found in CC Griffiths ‘Prosecuting fraud in the metropolis, 1760–1820’ (unpublished doctoral thesis, University of Liverpool, 2017).
24 R v B Lara, 6 Term Reports 565, 101 ER 706.
25 See below.
26 Where it is possible, each doctrine will be addressed separately. However, due to the ontological closeness of the doctrines, examples will be provided that could apply to one or more of the doctrines.
27 This interconnection of offences still formed a central part of the discussions of the 8th report of the Criminal Law Revision Committee which led to the introduction of the Theft Act 1968.
28 Farmer, LMaking the Modern Criminal Law: Criminalization and Civil Order (Oxford: Oxford University Press, 2016) p 204CrossRefGoogle Scholar.
29 Above n 24.
30 Above n 28, p 218.
31 Serjeant William Hawkins was an important leading commentator on the criminal law in the early eighteenth century.
32 1 hawk c 71 s 1 cited in Turner, JW Cecil (ed) Russell on Crime vol 2 (London: Stevens & Sons Ltd, 11th edn, 1958) p 1330Google Scholar.
33 41 Geo 3, c 70.
34 Through the eighteenth and into the nineteenth century the phrase ‘false pretence’ began to replace the ‘artful device’. See for example The King v Gill and Henry 106 ER 341, (1818) 2 B & Ald 204; Noble v Adams 129 ER 24; R v HD Perrott 105 ER 422, (1814) 2 M & S 379; R v Jackson and Another (1813) 170 ER 1414, (1813) 3 Camp 370.
35 Fraud offences have a close relationship with larceny, the essential difference being the missing element of seizure of goods. In the simplest terms, the offences of larceny required that without the consent of the owner, a thing must be seized (cepit) and then carried away (asportavit). Fraudulent offences required the victim to voluntarily part with the goods. For a history of larceny see above n 32; Fletcher, G ‘The metamorphosis of larceny’ (1976) 89(3) Harvard Law Review 469CrossRefGoogle Scholar.
36 Above n 29.
37 These records can be found at https://www.oldbaileyonline.org/.
38 OBP, Oct 1766, trial of Stephen Willougby (t17661022-58).
39 Fielding, JExtracts from such of the penal laws as particularly relate to the peace and good order of the Metropolis (Cadell, T, 2nd edn, 1763)Google Scholar.
40 OBP, Jul 1784, trial of Matthew James Everingham (t17840707-116).
41 Had Everingham read the texts he obtained, he may have avoided the seven-year transportation sentence he received.
42 As cited above n 29.
43 Shoemaker, RProsecution and Punishment (Cambridge: Cambridge University Press, 1991)Google Scholar.
44 Above n 29.
45 6 Mod 301 and 2 Lt Ray 1179.
46 This approach was further confirmed in the similar case of R v Govers 96 ER 854, (1755) Say 206.
47 Farmer, L ‘Criminal law as an institution. Rethinking theoretical approaches to criminalization’ in Duff, RA et al. (eds) Criminalization: The Political Morality of the Criminal Law (Oxford: Oxford University Press, 2014) p 84Google Scholar.
48 Young v the King (1789) cited in W Holdsworth A History of English Law vol XI (Metheun & Co, 1938) p 533; R v Grantham 88 ER 1002, (1709) 11 Mod 222; R v Bryan 2 Stra 866; R v Munoz 2 Stra 1127; R v Nehutt 1 Salk 151.
49 Above n 29.
50 For discussion of the relationship between contract and criminal law fraud see below.
51 Nehuff's Case, Salk cited by Mr Justice Lawrence, above n 24.
52 R v Higgins (1801) 2 East 5.
53 See below.
54 John Young, S Randal, W Mullins, and J Osmer v The King 3 Term Reports 98, 100 ER 475.
55 See for example R v Wood 93 ER 81, (1742) Sess Cas KB 80.
56 Above n 29.
57 41 Geo 3, c 70 (Insolvent Debtors Relief Act 1801).
58 Above n 32, p 1334.
59 Chitty, JA Practical Treatise on the Criminal Law vol 3 (London: Butterworth and Son, 1816) p 994.Google Scholar.
60 Taylor, J ‘Watchdogs or apologists? Financial journalism and company fraud in early Victorian Britain’ (2012) 85(230) Historical Research 632CrossRefGoogle Scholar.
61 98 ER 1110, (1775) 1 Cowp 323.
62 R v Jones (1704) 2 Lt Raym 1013.
63 Above n 55.
64 R v Wheatly 97 ER 746, (1761) 2 Burr 1125 per Lord Mansfield.
65 R v Orbell (1704) 6 Mod 42.
66 Ibid.
67 98 ER 1331, (1778) 2 Cowp 729.
68 Ibid.
69 Above n 32, p 1334.
70 97 ER 442, (1758) 1 Burr 548.
71 Holdsworth, WA History of English Law vol V (Metheun & Co, 3rd edn, 1945)Google Scholar.
72 1862 L & C 157.
73 See for example R v Driffeld 96 ER 833, (1754) Say 146; Emanuel v Dane 170 ER 1389, (1812) 3 Camp 299; Noble v Adams 129 ER 24.
74 See in particular Emanuel v Dane 170 ER 1389, (1812) 3 Camp 299; R v Pywell and Others 171 ER 510, (1816) 1 Stark 402.
75 Lord Mansfield was a deeply influencial lawyer and politician in the eighteenth century, acting as both Solicitor and Attorney General. For an overview of Mansfield see Kayman, MA ‘The reader and the jury: legal fictions and the making of commercial law in eighteenth-century England’ (1997) 9(4) Eighteenth Century Fiction 373CrossRefGoogle Scholar.
76 Hamar v Alexander 127 ER 618, (1806) 2 Bos & PNR 241.
77 See for example R v Driffield 96 ER 833, (1754) Say 146.
78 R v Pinkney 25 ER 593, (1733) Kel W 244.
79 88 ER 1057, (1719) 11 Mod 309.
80 This was reiterated as late as the Criminal Law Commissioners 1834, 4th report. For more details see above n 28, p 215.
81 Above n 28, p 229; see also above n 47.
82 Ibid, p 84.
83 Above n 2, at [48].
84 Ibid, at [74].
85 Enterprise and Regulatory Reform Act 2013, s 47.
86 Above n 28, p 216.
87 Above n 24.
88 OBP, February 1760, trial of John Ambery (t17600227-19).
89 OBP, June 1769, trial of John Lutmore (t17690628-63).
90 OBP, December 1769, trial of Roger Prate (t17691206-47).
91 Per Lord Ellenborough in R v Tomkins (1807) 8 East 180, 103 ER 311.
92 See in particular Stuart Green, PLying, Cheating, and Stealing. A Moral Theory of White-Collar Crime (Oxford: Oxford University Press, 2006)Google Scholar.
93 Ibid, p 32.
94 For a more in-depth discussion of R v Hinks [2000] UKHL 53 see S Shute ‘Appropriation and the law of theft’ (2002) Criminal Law Review 445; Bogg, AL and Stanton-Ife, J ‘Protecting the vulnerable: legality, harm and theft’ (2003) 23(3) Legal Studies 402CrossRefGoogle Scholar; Beatson, J and Simester, AP ‘Stealing one's own property’ (1999) 115 Law Quarterly Review 371Google Scholar; S Gardner ‘Property and theft’ (1998) Criminal Law Review 35.
95 See above, n 92.
96 Tur, R ‘Dishonesty and the jury: a case study in the moral content of law’ in Griffiths, A Phillips (ed) Philosophy and Practice (Cambridge: Cambridge University Press, 1985) p 75 at p 95Google Scholar. See also S Shute ‘Appropriation and the law of theft’ (2002) Criminal Law Review 445.
97 This point was also engaged with in great length by the Law Commission in Legislating the Criminal Code: Fraud and Deception (Law Com no 155 1999).
98 Bogg and Stanton-Ife, above n 94, at 407.
99 This much wider discussion cannot be engaged with sufficiently in this forum but for a more detailed discussion see Tur, above n 96.
100 Ibid, p 51.
101 See in particular Robinson, PH ‘Should criminal law abandon the actus reus-mens rea distinction?’ in Shute, S, Gardner, J and Horder, JAction and Value in Criminal Law (Oxford: Clarendon Press, 1993)Google Scholar.
102 Above n 10.
103 Above n 2, at [45].
104 Ibid, at [45].
105 Ibid, at [45].
106 Ibid, at [49].
107 Ibid, at [49].
108 Were the law to be constructed to require the intentional use of an artful device or deception with knowledge that it was deceptive, it could be argued in such a situation as mooted by the Justices that a positive duty could be placed on the accused to not take advantage of such a situation. However, in light of wider doctrines of caveat emptor, not protecting a fool, and a broader liberal tradition within English law, it is unlikely that such a positive duty would be imposed in such a scenario.
109 Ibid, at [50].
110 Ibid, at [63].
111 Gaming Act 1664 16 Car II c 7 alongside the Gaming Act 1710 9 Ann, c 19 and The Gaming Act 1845 (8 & 9 Vict, c 109).
112 Above n 2, at [38].
113 See discussion above.
114 It is difficult to avoid conflating fraudulent misrepresentation and breach of contract when assessing eighteenth-century jurisprudence in this area. Many of the cases cited in this section would be considered misrepresentation cases today, but the reported sections of these cases are preoccupied with breach of warranty rather than misrepresentation.
115 Above n 10.
116 Cheating as an offence was abolished by Theft Act 1968, s 32 but it is the precursor to a range of modern statutory offences and to the current conception of dishonesty.
117 Ibid, at [43].