If you have studied ILSPA’s Criminal Law Diploma course, you will remember how many obstacles prosecution lawyers must overcome in order to secure a conviction against a defendant. Different offences have varying conditions to satisfy, and this article looks at the test for dishonesty, which is most often applied to cases involving theft and fraud.
In August 2012, Mr. Phillip Ivey won £7.7 million at Crockfords, a casino in London, playing a card game called “Punto Banco”. Crockfords refused to pay out, alleging that Mr. Ivey cheated because he used a gambling technique called “edge sorting”, which involved spotting minute differences in the pattern printed on the reverse of playing cards. This, they said, contravened s. 42 of the Gaming Act 2005 by being a “dishonest technique”. Mr. Ivey admitted using the technique but contended that it was not unlawful and was not dishonest – he merely considered himself to be an “advantaged” player. Mr. Ivey, therefore, sued Crockfords for his £7.7 million. It went up to the Supreme Court, which recently gave its judgment, which was in favour of Crockfords. (Ivey v Genting Casinos (UK) Ltd  UKSC 67.)
Previously there were two important elements that had to be satisfied in order for a prosecution lawyer to prove dishonesty; these were established by R v Ghosh  EWCA Crim 2:
- the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people (the objective test); and, if yes,
- the defendant must have realised that ordinary honest people would so regard his behaviour (the subjective test).
This test had been proven to be reliable in other high-profile criminal cases (such as the LIBOR trials), and so the effect of the Ivey case was basically to replace the second element with a new objective test. This relates to the defendant’s state of mind and the question of whether by the “standards of ordinary decent people” the defendant’s intent was dishonest. In future cases, the jury will be asked to consider a question based on facts and standards. The Supreme Court held that dishonesty was not an essential requirement of cheating pursuant to s. 42 Gaming Act 2005, and Lord Hughes spoke out against the shortcomings of the “Ghosh test”. Speaking obiter (i.e. commenting on something that was not essential to the particular case), he said that a fact finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge and belief as to the facts, and that once this was established, the question of whether his conduct was honest or dishonest is to be decided by the tribunal 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.
Many criminal law specialists, notwithstanding that Lord Hughes’ comments were obiter, believe that this change in the law is going to prove to be beneficial to prosecutions in fraud and theft cases and that in the future a defendant’s “dishonest” intent will be proven in a manner that is much more just.