Ivey v Genting Casinos – Honesty Over Dishonesty

"Reasonable and honest people" everywhere may take some interest in the fact that their views are from now on to be the only yardstick by which an act will be judged to be "honest" or "dishonest". Previously the test for "dishonesty" laid down in Ghosh R v Ghosh [1982] QB 1053 required the prosecution to prove (1) that the actions of the defendant were dishonest by the lay objective standards of ordinary, reasonable and honest people and (2) that the defendant must have realised that ordinary honest people would regard his behaviour as having fallen below those standards. In Ivey v Genting Casinos [2017] UKSC 67, the Supreme Court (hearing a civil case) did away with the second limb of the Ghosh test, thus making what the defendant thought about how others would regard his actions irrelevant. However technical this change may sound, it will have a powerful impact on the criminal law, both by simplifying the trial of many regularly prosecuted offences and moving towards a more objective test in trials for many acquisitive offences.

The facts in Ivey revolve around an extremely sophisticated and painstakingly executed ploy used by Mr Ivey to increase the odds of his winning bets made at an exclusive London casino. The essence of his strategy was to persuade a casino employee to distribute cards in such a way that he could see a particular edge of the cards before they were dealt. Through infinitesimal differences in the decorative pattern printed on the back of the card (which was the result of how they were produced by the manufacturer) he was able to determine what the number on the front of the card was likely to be. It probably didn't help Mr Ivey that he explained his request for cards to be arranged in a certain way by claiming he was superstitious and relied on the tolerance casinos extend to such beliefs. As a result of this strategy, Mr Ivey won around £7.7 million in a single night.

When the casino refused to pay Mr Ivey his winnings, Mr Ivey launched a civil claim and thus the matter came before the courts. The question was whether Mr Ivey had "cheated" within the meaning of section 42 of The Gambling Act 2005 (which creates a criminal offence of cheating). If so, then Mr Ivey would have breached the implied term of the contract between himself and the casino, and so have forfeited his winnings. If not, there was no breach of contract and the money was his. Mr Ivey argued that "cheating" necessarily involved dishonesty, and that...