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Key Case in Focus: Criminal Law – R v Barton and Booth (2020)

7th February 2023

The key case of R v Barton & Booth (2020) and how this should be used in your exam answers...

Since the 1980’s the test for dishonesty in theft offences had come from the case of R v Ghosh (1982). This formulated a two-part test combining objective and subjective standards.

The previous test

Was the defendant’s behaviour dishonest by the standards of the honest reasonable person?, and;
Did they realise that their behaviour was dishonest by this standard?

This has proved problematic for juries to consider and has meant that as long as a defendant could show they did not believe their actions to be dishonest then mens rea could not be satisfied.

However, in 2017 this test was questioned in the civil law case of Ivey v Genting Casinos Ltd. concerning alleged cheating in card games. Lord Hughes at the Supreme Court stated that the Ghosh test did not correctly represent the law and favoured a single objective test. These comments however were only obiter (due to being made in civil law) and therefore the law was left in a state of uncertainty, waiting for these comments to be confirmed in the Criminal courts and become binding precedent. That opportunity arose in the case of R v Barton & Booth (2020).

Case facts

This case concerned the residents of a care home whom over a period of twenty years had been persuaded and manipulated to give large cash gifts, sign over ownership of motor vehicles, provide loans and paid exorbitant fees to the owner, David Barton, assisted by his manager, Mary Booth. At first instance the judge had used the Ivey objective test for dishonesty, however an appeal was launched stating that this had been incorrect and the objective and subjective test from Ghosh should be used, so that the defendants own views must be considered. The appellant argued that Ivey was not good law to follow, as the comments contained within it were obiter. However, as the comments that the subjective element of the Ghosh test did not represent the law correctly were unanimous from the Supreme Court in Ivey, the Supreme Court decided this ‘new test’ must be followed.

How do I use the Barton & Booth case in my answers?

For the dishonesty test of theft, the correct authority to use is now R v Barton & Booth which confirmed the obiter comments in Ivey v Genting Casinos that the test for dishonesty is now purely objective, with the relevant question being whether an ordinary and reasonable person, believing the same facts as the defendant, would consider them to be dishonest. This is the test to be just going forth in your exam questions.

Student Discussion

Do you think that it is better to just have an objective test to establish the mens rea for theft?
What are the advantages and disadvantages of the test not taking into account the defendant’s own beliefs?

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