The law relating to dishonesty has recently changed. In Ivey v Genting Casinos [2017] UKSC 67 the Supreme Court set out the test for dishonesty in the following way:

‘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 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.’

In recent Tribunal proceedings, the Solicitors Regulation Authority (SRA) has emphasised the objective element of that test by stating:

‘The above test, namely that the conduct alleged was dishonest by the ordinary standards of reasonable and honest people, is the test to be applied.’

We do not believe that is a good summary of the test. The Supreme Court has stated that the Tribunal must first establish the solicitor’s actual state of mind.

The importance of the solicitor’s state of mind on the question whether his or her conduct was dishonest is amplified in other sections of the Supreme Court’s judgment. In particular, in paragraph 60 of Ivey the Court said:

‘Take for example a man who comes from a country where public transport is free. On the first day he travels on a bus. He gets off without paying. He never had any intention of paying. His mind is clearly honest…

…In order to determine the honesty or otherwise of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging. In order to decide whether this visitor was dishonest by the standards of ordinary people, it would be necessary to establish his own actual state of knowledge of how public transport works. Because he genuinely believes that public transport is free, there is nothing objectively dishonest about his not paying on the bus. The same would be true of a child who did not know the rules, or of a person who had innocently misread the bus pass sent to him and did not realise that it did not operate until after 10.00 in the morning…

…what is objectively judged is the standard of behaviour, given any actual state of mind of the actor as to the facts.’

Although the test is objective, in the sense that the Tribunal must decide whether a solicitor was dishonest by applying the objective standards of ordinary decent people, that objective decision must be based on the solicitor’s state of mind at the time the conduct occurred.