Fraud, Shift And Cousenage

When and how dishonesty needs to be shown following Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67

The Gaming Act of 1664 imposed a forfeit on anyone who won a wager or prize, if they did so by means of "fraud, shift, cousenage, circumvention, deceit or unlawful device, or ill practice whatsoever". It is, arguably, still perfectly creditable drafting. Its 21st century equivalent, the Gambling Act 2005, creates a rather more prosaic offence of "cheating at gambling".

In a much-publicised recent case, the Supreme Court has considered two issues: first, whether it is necessary to prove dishonesty in order to make out an offence of cheating; and second, what the test for dishonesty should be. It is the second of these issues, and particularly the decision to bring the criminal test for dishonesty into line with the civil one, which has attracted the most attention. For those conducting internal investigations, however, the lessons to be drawn from the first issue may be just as instructive. It is not always necessary to prove dishonesty where, intuitively, one might expect to find it, and investigations should be directed accordingly.

Facts of the case

The history of the dispute between Mr Ivey and Genting Casinos (UK) Ltd (Crockfords) was, briefly, as follows. Mr Ivey is a professional gambler. He played a number of games of Punto Banco at Crockfords over two days in August 2012, with the help of another professional gambler, Ms Sun. Punto Banco is played with six or eight packs of cards. It requires the dealer to deal two or three cards, face down, onto two positions on the table ("punto" and "banco"). The gambler places a bet on one of those positions, and if the total of the cards dealt is closer to nine than the other position (subject to the rules of the game), he or she wins. The house, inevitably, enjoys a small advantage, or "house edge".

There is an advantage to the gambler in knowing which cards are "high value" which, in this context, means cards with a face value of seven, eight or nine. That would not, of course, normally be possible. However, Mr Ivey sought to take advantage of a technique called "edge-sorting". This can be done where the manufacturing process means that the pattern on the back of the card is marginally closer to one long edge of the card than the other. The Supreme Court described the difference as "sub-millimetric", but it was enough for Mr Ivey to be able to use. The difficulty lay in ensuring...

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