Dishonesty test: Playing with a new deck - Stephen Parkinson quoted in CDR

7 March 2018

Stephen Parkinson, Partner in Criminal Litigation at Kingsley Napley LLP, has been quoted in an article published by CDR on the case of Ivey v Genting. The article explores whether this civil case over cheating at baccarat a could significantly change the way white-collar crime is prosecuted in the UK, after the Supreme Court redefined the dishonesty test.

Click HERE or the button below to view the article.

Extracts of commentary from Stephen Parkinson in the article include:

To a certain degree, the old test protected those who committed smaller acts of fraud in the name of what they saw as a greater good, such as keeping their business alive, says Stephen Parkinson, head of criminal litigation at Kingsley Napley.

“That is the sort of the situation where the subjective test would have helped to secure his acquittal. The direction [to the jury] would have been that if he did not think he was being dishonest, then you have got to acquit. Now a jury has got to be told, if a reasonable person objectively would think that action is dishonest, then you must convict.”

This eliminates the ability to cite grey areas or judgement calls as justifications for dishonest behaviour and Parkinson firmly believes the ruling will result in “more convictions as a result”.

The differing view from defence and prosecution sides is why the Supreme Court had to wait for a piece of civil litigation to make a change that will have its biggest impact on criminal cases, says Parkinson: “Why wait 35 years? Because defendants weren’t bringing appeals before the courts on this issue, because the old law benefitted them and the prosecution, which has much more limited rights of appeal, wasn’t able to bring a case before the Supreme Court.”

The criminal courts “have responded by treating this as valid law even though there is a perhaps a technical argument that it isn’t”, he says, referring to the obiter nature of the Hughes’ comments.

That nature has raised concern in some quarters that the question was not as well-tested in the courtroom as it might have been, but then again, the Supreme Court had clearly considered the issue in depth, as evidenced by the detail in Hughes’ comments.

The Genting ruling has already had an effect on cases in the UK. Parkinson is advising Tesco in relation to the trial of three of its former executives charged with misleading the market over the company’s profits. In that trial, ongoing at the time of going to print, Judge Deborah Taylor directed the jury: “You should not consider what he [the defendant] ought to have known or speculate as to what he might have known but decide what he actually knew or believed. On the basis of his actual knowledge or belief as you find it, you decide whether his conduct was dishonest by the standards of ordinary and honest people.”

This, says Parkinson, “probably will be a pretty standard direction in future”, although “because the jury have got to be satisfied that the person actually knew about the facts underlying the crime, that reduces the impact of the Genting case, because you have still got that subjective knowledge or belief as to the actual facts”.

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