Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
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”; 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.
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  UKUT 0079 (TCC), FS/2013/0003, at  to ). 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.
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  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  EWCA Civ 1492).
Which test has been chosen in the world
Access this article and thousands of others like it free by subscribing to our blog.
Read full article
Already a subscriber? Login
0330 161 1234