The explanation of dishonesty to a misconduct panel has always had the air of artificiality about it. That is not just my view - in its upending of the test in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, the Supreme Court described the test at [57] as being one "which jurors and others often find puzzling and difficult to apply." In that decision, the Supreme Court upended the Ghosh test, which should no longer be used in misconduct proceedings. What might remain a live question, however, is whether the objective standard is those of ordinary, honest people or ordinary honest police officers.

The starting point has been the test in R v Ghosh [1982] EWCA Crim 2; [1982] QB 1053, explained in Twinsectra Ltd v Yardley [2002] UKHL 12; [2002] 2 AC 164. The standard direction was always:

(1) Has the appropriate authority proved that the officer was acting dishonestly by the ordinary standards of reasonable and honest people? 

(2) If the appropriate authority have proved that the officer's act was dishonest by those standards, did the officer realise he was acting dishonestly by the ordinary standards of reasonable and honest people?

(3) If the appropriate authority prove the officer realised he was acting dishonestly by the ordinary standards of reasonable and honest people it is no defence for him to say he was acting honestly by his own standards.

There remained, however, debate as to whether an officer's actions were to be measured against the ordinary standards of reasonable and honest people or reasonable and honest police officers. In Hussain v GMC [2014] EWCA Civ 2246 at [51], Longmore LJ opined, obiter, that the acts of a professional person were to measured against the standards of another professional person: [brackets in the original]

I am a little troubled about the Ghosh direction given by the legal assessor in this case. It would have been standard in a criminal case. But this was a professional disciplinary hearing and it seems to me that in future it would be right and proper for the first part of the direction to be adapted to read that the panel should decide “whether according to the standard of reasonable and honest doctors [not people] what was done was dishonest”. There may be a not unimportant difference between the two as shown by the decision of the judge in this very case. 

In R v Hayes [2015] EWCA Crim 1944; [2016] 1 Cr App. R (S) 63, the criminal division of the Court of Appeal rejected the effect of a refined Ghosh test whereby actions of professions were measured against the standards of other professionals rather than ordinary reasonable people. It recalled the jury direction [24]:

First, was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? I will say that again: Was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? Not by the standards of the market in which he operated, if different. Not by the standards of his employers or colleagues, if different. Not by the standards of bankers or brokers in that market, if different, even if many, or even all regarded it as acceptable, nor by the standards of the BBA or the FXMMC, but by the standards of reasonable, honest members of society.

The challenge to this failed. The Court of Appeal held [32]:

Not only is there is no authority for the proposition that objective standards of honesty are to be set by a market, but such a principle would gravely affect the proper conduct of business. The history of the markets have shown that, from time to time, markets adopt patterns of behaviour which are dishonest by the standards of honest and reasonable people; in such cases, the market has simply abandoned ordinary standards of honesty. Each of the members of this court has seen such cases and the damage caused when a market determines its own standards of honesty in this way. Therefore to depart from the view that standards of honesty are determined by the standards of ordinary reasonable and honest people is not only unsupported by authority, but would undermine the maintenance of ordinary standards of honesty and integrity that are essential to the conduct of business and markets.

That did not sit easily with the continued application of Ghosh in misconduct hearings. In Dowson v GMC [2015] EWHC 3379 at [49], Edis J held that professionals might be more scrupulous than the general public but remained undecided: [emphasis added]

There was also no evidence that reasonable and honest doctors have any different view of what is required in the two particular situations where dishonesty was found than that held by reasonable and honest people. It is reasonable to assume that the medical profession is at least as scrupulous about integrity in its professional work than the population at large might be. If that is right then the test propounded by Longmore LJ [in Hussain v GMC [2014] EWCA Civ 2246] would impose a higher standard than the test which applies to non-medical endeavours. It would be unwise for me to attempt to follow that line further in a case where the evidence and the facts render any such enquiry unnecessary. In this case it seems to me that the relevant standard is the same whether it is derived from the standards of reasonable and honest doctors or reasonable and honest people. What is necessary is to attribute to which ever notional group is the theoretical arbiter enough knowledge of the context and purpose of the activity involved to allow an informed judgment to be developed.

In Falodi v Health and Care Professions Council [2016] EWHC 328 (Admin) at [14], however, Lang J positively stated that Ghosh had to be "modified to reflect the different context of professional disciplinary proceedings": [emphasis added]

Thus, the Panel had to determine: i) Whether, on the balance of probabilities, the registrant acted dishonestly by the standards of reasonable and honest social workers; and if so; ii) Whether, on the balance of probabilities, the registrant realised that what she was doing was, by those standards, dishonest.

In Ivey v Genting Casinos, the Supreme Court took as its starting point that the second leg of the Ghosh test required the defendant's acts to be measured against what "society in general expects" [58]. After mentioning a number of authorities, it stated that the test of dishonesty was that clearly explained by Lord Hoffman in Barlow Clowes International Ltd v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 WLR 1476 at [10]: [emphasis added]

Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant's mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards. The Court of Appeal held this to be a correct state of the law and their Lordships agree.

The Supreme Court went on to state that the second leg of the test in Ghosh was not correct and that the test of dishonesty remain that stated by Lord Hoffman, repeating that the measurement was by the standards of ordinary people: Ivey v Genting Casinos at [74]: [emphasis added]

These several considerations provide convincing grounds for holding that the second leg of the test propounded in Ghosh does not correctly represent the law and that directions based upon it ought no longer to be given. The test of dishonesty is as set out by Lord Nicholls in Royal Brunei Airlines Sdn Bhd v Tan and by Lord Hoffmann in Barlow Clowes... When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.

On the decision itself, the second part of the Ghosh test does seem to live on, faintly, in the assessment of "the actual state of the individual's knowledge of belief". The "reasonableness or otherwise" of the belief is a matter of evidence. But on the issue as to whose standards are those against which the conduct is judged, the Supreme Court has held it was the standards of "ordinary decent people". Whether in professional conduct situations this should be the standards of other professional persons mutatis mutandis was not argued (although it might be said that the Supreme Court were considering the situation of a professional gambler).

This is no mere academic point. A police officer's interrogating police systems to find out information for a personal purpose will usually be considered by a chief constable as dishonest. An example might be where an officer checks police computer systems to see whether the new partner of one of their teenage children has a criminal record or is someone about whom there is police intelligence. An ordinary and reasonable member of the public may consider that not to reach the level of dishonesty whereas a reasonable police officer may consider that it does. In this and other situations, the standards of a reasonable police officer with regards to a police officer's actions may be more demanding than the reasonable man who is well-informed but not an expert.

In a sense, it might be that such consideration takes place at the first stage. Where a police officer improperly interrogates police computer systems for a personal purpose, their subjective state of mind may be judged against their knowing that any other reasonable police officer would consider such an action to be dishonest. When that is established, the question as to whether such conduct is dishonest would then be determined by reference to the standards of ordinary decent people.

Still, that does not really answer the question as to whether the objective standard of dishonesty should be by the objective standards of ordinary professionals. It is a point which remains to be settled.