Dishonest Bankers – What is the Test?

Dishonest Bankers – What is the Test?

by Charles Kuhn (Barrister) and Tom Bushnell (Paralegal) from Hickman & Rose

It is trite nowadays to say that the public doesn’t trust bankers. A 2013 YouGov-Cambridge report found that 58% of interviewees agreed that the industry was “at best unprofessional, and at worst dishonest”[1]; whilst a study published in Nature magazine in November 2014 found bankers were more likely to cheat in a coin tossing game than other professionals[2].

Unsurprisingly, the FCA, in common with most regulators, has the power to ban bankers who are found to be “dishonest” or “lack integrity” (s 56 Financial Services and Markets Act 2000, FIT 1.3 and FIT 2.1). The legal test for the latter is tolerably clear (see, for example, the recent exposition in Tariq Carrimjee v Financial Conduct Authority [2015] UKUT 0079 (TCC), FS/2013/0003, at [23] to [25]). However, its more serious cousin, dishonesty, remains the topic of disagreement. This article will contrast the potential tests; chart the existing authorities; argue that the criminal law’s “Ghosh test” is appropriate; and explore why there is a pressing need for certainty.

The Choice

Nowadays, the civil law and criminal law adopt different tests for dishonesty. Criminal practitioners will be familiar with the “Ghosh test,” taken from Lord Lane’s judgment in R v Ghosh [1982] 2 QB 1053. It is a two stage test: would ordinary and reasonable people consider the action dishonest? If so, did the defendant realise that what he was doing was dishonest by those standards? It is also known as a “combined” test, for its use of objective and subjective limbs.

Civil lawyers have faced a more complicated history of authorities, many found in cases of dishonest assistance in breach of trust. The modern day position is, at heart, an objective test: would an honest person regard the conduct as dishonest, in light of the actual knowledge of the individual? (see Abou-Rahmah v Abacha [2006] EWCA Civ 1492).

The Authorities

Which test has been chosen in the world

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