This post was contributed by Simon Askey, Dean of Undergraduate Laws and Module Convenor for Legal System and Method (LSM).
In R v Barton and Booth  EWCA Crim 575 the Lord Chief Justice of England and Wales, Lord Burnett, delivered the approved judgment of a five-judge panel of the Criminal Division of the Court of Appeal. The judgment is of interest to criminal lawyers because it clarifies the test for dishonesty in criminal law, but it is also significant for legal method. The question addressed in Barton, of interest for legal method, is whether the Crown Court was bound by the decision of the Court of Appeal Criminal Division in R v Ghosh  QB 1053 or whether it was right to follow what is, for criminal law, the obiter dicta of the Supreme Court in Ivey v Genting Casinos (UK) Ltd  UKSC 67.
It might be tempting to reduce this to a question of which has more force, the ratio of a Court of Appeal decision or obiter dicta from a Supreme Court judgment, but what gives the dicta weight in Ivey is that (1) the Supreme Court thoroughly reviewed the test for dishonesty in both the civil and criminal law and (2) expressly disapproved the Ghosh test. Lord Hughes, delivering the unanimous judgment of the court, made this very clear, stating that the ‘test propounded in R v Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given.’
In Barton the trial judge at Liverpool Crown Court, HHJ Everett, directed the jury using the test in Ivey. Before the Court of Appeal, the first ground of appeal in Barton was the question of whether Ivey or Ghosh provided the correct approach to dishonesty. One of the identifying features of the elusive ratio decidendi of a case is that it must be essential to the court’s decision and as Lord Halsbury noted in Quinn v Leathem (1901), ‘A case is only authority for what it actually decides’. Since Ivey was not a criminal case it could not decide a criminal matter and so could not, strictly speaking, be authority for the criminal test of dishonesty.
The Court of Appeal faced this question head on and considered several ways in which stare decisis might be modified to accommodate following Ivey rather than Ghosh. One route was for the Court of Appeal to depart its own previous decision on the basis that Ghosh did not correctly represent the law, but that was not the issue here. It was not a case of the Court of Appeal reconsidering one of its own previous decisions but rather of deciding between following its own decision (Ghosh) or an instruction from the Supreme Court (Ivey). In the end the Court was persuaded by the reasoning in R v James  EWCA Crim 14 where the Court of Appeal had followed a decision of the Privy Council in preference to a decision of the House of Lords. In James the Court of Appeal followed the Privy Council decision for three reasons, first, the Privy Council had agreed that the decision clarified English law. Secondly, the majority of the Privy Council were Lords of Appeal in Ordinary (judges in the House of Lords) and thirdly, it was clear that the House of Lords would reach the same decision. The outcome of Barton is that stare decisis has been modified in English law to the extent that where a majority judgment of the Supreme Court ‘directs that an otherwise binding decision of the Court of Appeal should no longer be followed and proposes an alternative test that it says must be adopted, the Court of Appeal is bound to follow what amounts to a direction from the Supreme Court even though it is strictly obiter.’
The outcome of Barton is a logical and minor modification of the doctrine of stare decisis emphasising the importance of the vertical dimension of precedent, a notion made very clear by the Australian High Court more than a decade ago in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) when Australia’s highest court stated that all lower courts are bound by the ‘long-established authority and seriously considered dicta’ of majority decisions of the court.
Thank you for this analysis.
For me Ghosh argues too much for the subjective state of mind versus an objective standard for theft.. Barton, Booth v Queen for the amounts of money involved seemed too lenient in sentencing, Following the dicta of the Privy Council makes sense in the hierarchy of precedent since the House of Lords judges are of superior ranking to the appellant judges.
The Ghosh test with its emphasis on the subjective element of a two prong test for fraud or dishonesty versus the reliance of Ivey and its discussion with weight on an objective test would seem to point to a need for Parliament to address the issue with debate and a statute test. The subjective test would be in the mind of a defense attorney ; a firm objective test might better serve the practical enforcement of law on an objective basis, and is sorely needed at stop signs and red lights where I drive.
Thank you for the updates!