Landmark judgement redefines the meaning of dishonesty

In the recent judgment of Ivey v Genting Casinos Ltd Crockfords, the court stated that the 35-year-old two-stage test defined in R v Ghosh [1982] EWCA Crim 2 has ‘serious problems’ and that it does not correctly represent the law.

The court unanimously dismissed an appeal from Phil Ivey to recover winnings from a 2012 game in Crockfords Club, Mayfair. Ivey admitted relying on a technique whereby he was spotting tiny differences in the backs of playing cards so that he could tilt the odds in his favour. Ivey did not touch any cards, but persuaded the croupier to rotate the most valuable cards. He brought an action against the club after it refused to pay out on the grounds of cheating. He told the court that he regarded his technique as legitimate gamesmanship. Upholding a judgement from the Court of Appeal, the Supreme Court stated Ivey’s actions were ‘positive steps’ to fix the deck and as a result amounted to cheating, regardless of what he believed.

For 35 years, juries hearing cases involving dishonesty have been told that defendants should only be found guilty on the basis of the two-stage test set out in the case of R v Ghosh [1982]. The first stage in that test is whether the defendant’s conduct was dishonest by the standards of ordinary reasonable and honest people. The second stage is that the defendant must have realised ordinary and honest people would regard his/her behavior as being dishonest. However, in Ivey v Genting Casinos Ltd Crockfords, the Supreme Court removed the second stage of this test, therefore making what the defendant thought about how others would regard his actions as irrelevant. Instead, all cases should now be determined on an objective basis of whether the defendant’s conduct was honest or dishonest by the standards of ordinary people.

Going forward, the prosecution simply need to place before the court the alleged actions of the defendant, and invite the court to decide whether or not they were dishonest in those actions.

Such a change in the law has been noted as being one of the most significant in a generation, leading to possible further convictions in criminal trials.

Numerous offences include a requirement for the prosecution to prove dishonesty, including fraud, theft, burglary and robbery.  If you are under investigation or face prosecution for an offence of that nature, it is vital that you seek expert legal advice.  For more information about how we can help, contact a member of the crime team, or a member of chambers, at your nearest office.