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When it comes to FTP hearings, a recent Supreme Court decision is likely to make decisions about dishonesty a lot easier, says Richard Hough

A recent Supreme Court decision is likely to impact the rules on the test for dishonesty, which is applied in General Pharmaceutical Council (GPhC) fitness to practise (FTP) hearings. For pharmacists accused of dishonesty, the recent decision may mean that such a finding will be more easily made.

The case of Ivey v Genting Casinos involved a professional gambler, Ivey, playing a variant of baccarat at a London casino owned by Genting. Ivey manipulated a croupier into arranging cards so that tiny variations in pattern on one edge were visible. Having established this advantage, Ivey went on to win £7.7m. The casino refused to pay out, and Ivey brought an action for his winnings, claiming that his actions were no more than a legitimate attempt to win the game. The Supreme Court found that the ‘edge-sorting’ technique used by Ivey was cheating, regardless of Ivey’s beliefs that it was legitimate.

The most far-reaching point to emerge from the case, however, was the judicial consideration of the established test for dishonesty, which comes from the 35-year- old criminal case of R v Ghosh.

Ghosh test

The Ghosh test for dishonesty is in two limbs: Whether the conduct of the defendant was dishonest, judged by the objective standards of ordinary reasonable and honest people (the objective limb); and
If so, whether the defendant must have realised that ordinary honest people would regard the conduct as dishonest (the subjective limb). The defendant is only to be convicted of dishonesty if both limbs are satisfied.

The Supreme Court recognised that the subjective limb was included to preserve the principle that when making a finding of dishonesty, the defendant’s state of mind must be considered. However, the court also raised a number of concerns with this part of the test, key amongst which was that “it has the unintended effect that the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour.” That is to say, the subjective limb of Ghosh allows for the least honest people to be judged by their own, lower, standards of honesty.

The GPhC had already recently moved away from this criminal dishonesty test and had opined that the Ghosh test is “not appropriate, open to interpretation and outdated”. However, this was based on different reasoning to the Supreme Court in Ivey. The GPhC was more concerned with the difficulties in applying a civil standard of proof (“the balance of probabilities”) to a test formulated in a criminal case, to which the criminal standard of proof (“beyond reasonable doubt”) would ordinarily be applied.

The GPhC found that a variant of the Ghosh test from a civil case, Twinsectra
v Yardley, was more appropriate. The Twinsectra test maintains the same objective limb as Ghosh, but its subjective limb is: “whether the defendant realised that ordinary and honest people would regard the conduct as dishonest”.

State of mind

Having analysed the Ghosh test and found it wanting, the judgment in Ivey explains how dishonesty will be judicially assessed from now on, following an established line
of reasoning from Royal Brunei Airlines v Tan and the Privy Council decision in Barlow Clowes International Ltd v Eurotrust International Ltd. The court makes clear that there is still some relevance for the defendant’s actual state of mind, in that “in order to determine the honesty or otherwise of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging.”

The court explains the principle by way of an example. If a person came to England from a country where public transport was free and on their first day here travels on a bus and alights without paying, are they dishonest? The Supreme Court’s answer was that no, this person is not dishonest because they genuinely believed that public transport is free. The situation is the same as for a child, who does not understand the rules, or a person who makes an innocent mistake about the validity of their ticket.

The important distinction is between making allowances for the subjective beliefs of the defendant regarding the facts or circumstances surrounding his conduct, and allowing the subjective beliefs of the defendant regarding the appropriate standard of honesty to affect the outcome of the case. The new test may therefore be stated as:

1. What was the actual state of the defendant’s knowledge or belief as to the facts; and
2. Given the answer to the first limb, was the conduct dishonest by the objective standards of ordinary decent people?

It remains to be seen whether the GPhC will update its guidance to reflect the direction taken in the new Supreme Court decision. If so, it should make it easier for a finding of dishonesty to be made against pharmacists by GPhC FTP committees.

Once the pharmacist’s knowledge
is established by the committee, the pharmacist’s actual conduct would only need to be judged against the ordinary standards of decent people. There is no longer any requirement for the pharmacist to appreciate that what they have done would be seen, by those standards, to be dishonest. 

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