Booth & Anor v R.

Where the Supreme Court unanimously directs that an earlier Court of Appeal authority should no longer be followed and prescribes a different test, the Court of Appeal must apply that direction even if it was strictly obiter.

Dishonesty requires the fact-finder first to determine the defendant’s actual knowledge or belief as to the facts. It must then assess the conduct by the objective standards of ordinary decent people. The defendant need not appreciate that those standards regard the conduct as dishonest.

Conspiracy to defraud requires a dishonest agreement involving unlawfulness in its object or means and intended prejudice to another’s proprietary rights. No additional aggravating feature is required.

The appellants were convicted at Liverpool Crown Court of offences arising from a long-running exploitation of wealthy and vulnerable elderly residents of a nursing home. David Barton was convicted of conspiracies to defraud, theft, fraud, false accounting and transferring criminal property. Rosemary Booth was convicted of three conspiracies to defraud.

The trial judge directed the jury on dishonesty in accordance with Ivey v Genting Casinos (UK) (trading as Crockfords Club) [2017] UKSC 67, rather than R v Ghosh [1982] QB 1053. The appeals challenged that direction, the ingredients and certainty of conspiracy to defraud, directions on gifts and capacity, the admission of bad-character evidence, and the safety of particular counts. Barton also appealed his total sentence of 21 years’ imprisonment.

1. The conviction appeals were dismissed. The court held that the Supreme Court’s unanimous direction in Ivey v Genting Casinos (UK) (trading as Crockfords Club) [2017] UKSC 67 had to be followed, despite being strictly obiter. Where the Supreme Court directs that an otherwise binding Court of Appeal authority is no longer to be followed and states the replacement test, the ordinary rules of precedent are modified to that limited extent. The court therefore displaced the second limb of R v Ghosh [1982] QB 1053.
2. The correct dishonesty test requires the tribunal first to ascertain the defendant’s actual knowledge or belief as to the facts. It must then decide whether the conduct was dishonest by the standards of ordinary decent people. The reasonableness of a belief is evidential only, and there is no further requirement that the defendant realised that ordinary people would regard the conduct as dishonest. The judge’s summing up, read as a whole, sufficiently directed the jury to assess dishonesty against its findings as to each appellant’s knowledge and beliefs.
3. A conspiracy to defraud requires a dishonest agreement to deprive another of property or a proprietary right, or to injure such a right. The agreement must involve unlawfulness in its object or means, but no separate unlawfulness or aggravating feature is required. It is unnecessary to prove an intent to deceive or to cause economic loss, provided the defendant intended to prejudice another’s proprietary rights. The indictment and directions adequately identified that alleged deceit and lies were used to obtain property to which the appellants were not entitled.
4. Legal capacity to make gifts or transactions did not preclude a finding that the residents’ vulnerability had been dishonestly exploited. Nor was a tailored direction under section 2(1)(a) of the Theft Act 1968 required: the jury had been clearly directed that honest gifts or a genuine belief in entitlement required acquittal.
5. The evidence concerning the Tinto conversation was relevant to Booth’s truthfulness and her co-operation with Barton in creating a false explanation for a financial transaction. It was fairly admitted under the Criminal Justice Act 2003. There was sufficient evidence for count 16 to remain with the jury.
6. Barton’s sentence appeal was allowed. Although the offending was exceptionally serious, the total term of 21 years was manifestly excessive when totality was applied. The court substituted a total sentence of 17 years’ imprisonment by reducing sentences on counts 1, 16, 19 and 22 and making the sentence on count 25 concurrent.

• Court of Appeal (Criminal Division): In [2020] EWCA Crim 575, dismissed both appellants’ conviction appeals. It granted Barton leave to appeal against sentence and reduced his total sentence from 21 to 17 years’ imprisonment.
• Crown Court at Liverpool: Following a trial before HHJ Everett, Barton was convicted of multiple dishonesty offences and sentenced to 21 years’ imprisonment. Booth was convicted of three conspiracies to defraud and sentenced to six years’ imprisonment.