A Supreme Court judgment that a professional gambler cheated his way to a £7.7m casino win could change the course of criminal trials by ruling that a 35-year-old test for dishonesty is no longer fit for use. Adrian Farrow from Exchange Chambers explains why.
On 25th October 2017, the Supreme Court identified another wrong turn by overturning 35 years of established criminal jurisprudence.
This time, it arose in the context of a £7.7m civil claim by Californian world champion poker player, Phil Ivey, against Gentings Casinos UK, who had refused to pay him winnings from the card game Punto Banco, on the basis that he and his fellow player had cheated.
The Supreme Court, having been educated in the Baccarat-style game by the “admirable clarity” with which Mitting J had described it in his earlier judgment, examined the law relating to dishonesty in both the civil and criminal jurisdictions.
Mr Ivey had spent a great deal of time observing the minute variations in printing on the decks of cards used in the Punto Banco game, which is intended to be a game of almost pure chance. Using subtle methods to persuade the croupier to rotate certain cards so that the minute differences can be identified, gives the player the potential advantage of knowing which cards to be dealt next and it this which Gentings Casinos UK alleged against Mr Ivey and his fellow player. Mr Ivey claimed he had simply used his observations as a legitimate advantage.
The Supreme Court recognised that the civil law applies an objective test to the issue of dishonesty, whereas the criminal law, since R v Ghosh  EWCA Crim 2, has used a 2-stage test: first, was the conduct of the defendant dishonest by the standards of ordinary people and if so, must the defendant have realised that ordinary honest people would regard his behaviour as dishonest? A defendant charged with most offences of dishonesty, particularly fraud, could until this week, only be convicted if the answer to both of those questions was yes.
The conclusion of the Supreme Court in Mr Ivey’s case is that the second part of the test established by Ghosh represented a change in the law which had not been intended, created a difficult and confusing set of guidance for magistrates and jurors to follow and created a perverse situation where the more “warped” the defendant’s standards of dishonesty, the more likely he has been to be acquitted.
And so, the Supreme Court has swept away the subjective second part of the Ghosh test and the question is now simply whether, by the standards of ordinary decent people, the defendant was dishonest. There is no longer any requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.
The Ghosh test has not featured in every trial of offences of dishonesty over the years, but those who have been accused of offences of dishonesty who have played the Ghosh card over the last 35 years and won can now count themselves very lucky indeed. Unlike the aftermath of the joint enterprise ruling in R v Jogee  UKSC 8, this change in the law is unlikely to produce a tidal wave of appeals. But the odds have narrowed considerably for those who claim that they have not acted dishonestly.
The judgment can be found here: http://www.bailii.org/uk/cases/UKSC/2017/67.html
Adrian Farrow, Exchange Chambers