R v Barton and Booth [2020] EWCA Crim 575

David Barton, who ran a luxury care home, and manager Rosemary Booth were convicted of defrauding elderly wealthy residents of millions through manipulation and grooming. The Court of Appeal upheld their convictions and confirmed the Ivey test for dishonesty now replaces Ghosh.

Facts

David Barton operated Barton Park Nursing Home in Southport through his company Choice Classic Limited, assisted by his wife Lucinda Barton and General Manager Rosemary Booth. Over nearly twenty years, Barton befriended and ‘groomed’ wealthy, childless, elderly residents, isolating them from family, friends and professional advisers. He obtained control of their finances through powers of attorney, executorships and beneficial interests under wills, extracting large ‘gifts’, spurious loans, inflated fees, sham ‘lifetime care agreements’, and sold Rolls-Royce motor cars at grossly inflated prices to residents including Patricia Anderson-Scott and Margaret Pinnington.

After resident Katie Willey died, Barton pursued a fraudulent civil claim for approximately £10 million against her estate, based on false invoices, sham contracts and fabricated care records, including £7.2 million purportedly for taking her demented husband on drives in classic cars. The police investigation identified around £4.13 million actually obtained. Barton was convicted of ten counts including conspiracy to defraud, theft, fraud, false accounting and transferring criminal property. Booth was convicted of three counts of conspiracy to defraud in relation to Ronald Ward-Howlett and the Willeys. Sentences of 21 years and 6 years respectively were imposed.

Issues

The principal issues were: (i) whether the test for dishonesty articulated by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 67 should be followed in preference to R v Ghosh [1982] QB 1053, notwithstanding that Ivey was obiter; (ii) whether the judge’s directions on dishonesty were adequate; (iii) whether the elements of conspiracy to defraud were correctly identified and whether the offence satisfied Article 7 ECHR certainty requirements; (iv) whether a section 2(1) Theft Act 1968 direction was required; (v) whether directions on capacity and vulnerability were adequate; (vi) whether there was sufficient evidence to leave Count 16 to the jury against Booth; (vii) admissibility of the ‘Tinto conversation’ bad character evidence; and (viii) whether the sentences were manifestly excessive.

Arguments

Appellants

Bogan QC (for Barton) and Payne (for Booth) submitted that Ghosh remained binding as Ivey‘s comments on dishonesty were strictly obiter and the Supreme Court had not heard full argument. They argued the judge had failed to direct the jury to ascertain the defendants’ actual states of mind before applying the objective standard, that conspiracy to defraud lacked legal certainty, that section 2(1) Theft Act 1968 required a direction, that the judge conflated capacity with vulnerability, and that the Tinto conversation evidence was more prejudicial than probative. Sentence was said to be manifestly excessive on totality.

Respondent

Perry QC submitted that by analogy with R v James; R v Karimi [2006] QB 588, the Supreme Court’s clear direction in Ivey bound the Court of Appeal notwithstanding its technically obiter status. The directions on dishonesty, capacity and conspiracy to defraud were adequate when read as a whole, and the Tinto evidence was properly admitted as demonstrating propensity to be untruthful and to conspire with Barton.

Judgment

Status of Ivey

The Court held that the Ivey test for dishonesty is the correct approach and must be followed. Although Lord Hughes’s observations in Ivey at [74] were strictly obiter, the Supreme Court had unanimously directed that directions based on Ghosh ‘should no longer be given’. Drawing on the reasoning in James, the Court concluded that where the Supreme Court itself directs that an otherwise binding Court of Appeal decision should no longer be followed and proposes an alternative test, the Court of Appeal is bound to follow that direction. This limited modification of stare decisis applies only where all judges in the Supreme Court agree that to be the effect of the decision.

The Court endorsed Lord Hughes’s reasoning as ‘compelling’ and stressed that the Ivey test still requires the fact-finder first to ascertain (subjectively) the defendant’s actual state of knowledge or belief as to the facts, before applying the objective standard of ordinary decent people. All matters leading a defendant to act as they did, including experience and intelligence, form part of the subjective mental state.

The summing up on dishonesty

Reading the summing up as a whole, the judge had adequately directed the jury to consider the defendants’ actual states of mind and beliefs, including their contentions that the residents had full capacity and made willing gifts out of gratitude, before applying the objective standard. There was no possibility of jury confusion.

Conspiracy to defraud

The Court endorsed the formulation in Scott v Metropolitan Police Commissioner [1975] AC 819 and the analysis in R v Evans [2014] 1 WLR 2817. There must be a dishonest agreement including unlawfulness as to object or means, and an intention to prejudice another’s proprietary rights or interests. No additional ‘aggravating feature’ is required beyond dishonest agreement with an unlawful element. The offence, as particularised in the indictment, satisfied Article 7 ECHR certainty requirements. The directions on the elements were adequate.

Section 2(1) Theft Act

Although a tailored direction under section 2(1)(a) could have been given, it was not required. Barton’s case that the property was freely gifted was clearly put and, if accepted, would have led to acquittal.

Capacity

It was common ground that residents had legal capacity. The judge correctly directed that capacity did not preclude vulnerability being dishonestly exploited. Lord Hutton’s dissenting observation in R v Hinks [2001] 2 AC 241 was not a binding proposition and added nothing to the appellants’ arguments.

Count 16 and Tinto evidence

There was ample evidence to leave Count 16 against Booth to the jury, including her drafting the letter dismissing Mr Ward-Howlett’s financial adviser and her role as Barton’s ‘eyes and ears’. The Tinto conversation was properly admitted under section 101(1)(d) of the Criminal Justice Act 2003 as evidence of propensity to be untruthful and to co-operate with Barton in concealing the truth, subject to a formal admission that the underlying £10,000 payment was not dishonestly obtained.

Sentence

The Court granted Barton leave to appeal against sentence. While the offending was exceptional and merited a long sentence, 21 years was manifestly excessive for a 64-year-old man of good character. The overall term was reduced to 17 years by adjusting sentences on counts 1, 16, 19 and 22, and ordering count 25 to run concurrently.

Implications

This decision authoritatively resolves the uncertainty that followed Ivey by confirming that the two-stage Ivey test applies in all criminal cases involving dishonesty: (i) ascertain the defendant’s actual state of knowledge or belief as to the facts (subjective); and (ii) determine whether the conduct was dishonest by the objective standards of ordinary decent people. Ghosh‘s second limb, requiring the defendant to have realised their conduct was dishonest by those standards, is no longer part of English law.

Significantly, the Court modified the doctrine of stare decisis to the limited extent that a unanimous Supreme Court direction to depart from otherwise binding Court of Appeal authority must be followed, even where technically obiter. This confines the modification narrowly and preserves the general rules of precedent.

The judgment reaffirms the breadth of the common law offence of conspiracy to defraud, confirming that no separate ‘aggravating feature’ beyond a dishonest agreement with an unlawful element is required, and that the offence is sufficiently certain to comply with Article 7 ECHR. It also demonstrates that legal capacity does not preclude a finding of conspiracy to defraud where vulnerability is dishonestly exploited — a point of particular significance for prosecutions involving elderly or vulnerable victims in care settings. The decision matters to prosecutors, defence practitioners, trial judges directing juries on dishonesty, and to professionals working with vulnerable individuals, especially in the care sector.

Verdict: The appeals against conviction by both David Barton and Rosemary Booth were dismissed. Leave to appeal against sentence was granted to David Barton and his total sentence was reduced from 21 years’ to 17 years’ imprisonment. The Court confirmed that the test for dishonesty in Ivey v Genting Casinos is to be followed in all criminal cases in preference to R v Ghosh.

Source: R v Barton and Booth [2020] EWCA Crim 575