However, in col. 2 p.466 (Lloyds Banking Rep) in Twinsectra Potter LJ makes is clear that "The claim against Mr Leach falls into two parts ... "knowing receipt" in respect of £22,000 ... and knowing assistance in relation to the balance ...". What is interesting is that the same test is being used by Potter LJ both for dishonest assistance and knowing receipt (even though he acknowledges that one claim is receipt-based and the other not). The discussion on p. 465 col. 1 indicates consideration only of a "standard of honesty" both in the solicitor and in Leach. At no point is there a discussion of "knowledge" as applying to Leach and the solicitor here. The discussion proceeds on the basis of their "honesty" and/or "dishonesty" in relation both to receipt and assistance.

There are frequent references to the old knowledge-orientated ideas of "shutting his eyes to the obvious". For example on p.462, col. 2, there is mention of '"not dishonest" ..., he was referring to the state of conscious, as opposed to "Nelsonian" dishonesty ...' This indicates to me that the Court of Appeal in Twinsectra (and Arnell subsequently) are using the old categories within which to analyse the mental state of the defendant (e.g. willfully shutting your eyes) but are concerned with whether or not that person was honest or dishonest, as opposed to whether or not that person had knowledge. There is a partial shift here: the trigger is " what an honest person would have done" (in that passage from Tan, quoted by Potter LJ at p.464 col.2) but the problems of witness credibility are the same for the judge.

The test is not about the knowledge of the defendant, it is about whether or not the defendant acted as an honest person would have acted.

Significantly Potter LJ looks at recklessly ignoring the rights of others which is moving away from fault and, as with Tan itself, looking towards objective ideas of, something like, what 'an equivalent (professional) person would do in such a situation, etc'. This seems to nudge us on towards strict liability - not getting there yet, but getting closer.

Clearly there has been a movement away from knowledge because Potter LJ does not explicitly use the old knowledge tests, even though he is considering knowing receipt as well as dishonest assistance.

The only way of understanding this, it seems to me, is Scott LJ's comment in Polly Peck No.2 that the judge needs to decide whether or not the defendant "ought to have been suspicious" in the light of what an honest person would have done.

Take care,

Alastair Hudson

****************************
Dr Alastair Hudson

Senior Lecturer in Law
Queen Mary and Westfield College
University of London
Mile End Road
London E1 4NS

tel: 020 7882 3164
fax: 020 8882 8733

This communication is confidential and may contain privileged information. Presuming you have read this far anyway. If so, I should point out that the message finished some time ago. You are a little like one of those people (me included) who cannot leave the cinema until the very end of the credits because of that lurking feeling that there might be more to come. However, there really is nothing more to come. As for the confidentiality provision, that all seems a little late too. You will have read any secrets mistakenly left in the e-mail already, so it is really just a begging clause asking you not to do anything naughty now that you have read them. Another example of attempting to impose order on a fundamentally chaotic universe. Well, that really is it. I must just say how much I have enjoyed this unexpected time we have spent together. Bye-bye.