Supreme Court Resets the Criminal Law Test for Dishonesty

By way of background to the case, Mr. Ivey was an expert bettor who brought a claim versus a casino for payouts of ₤ 7.7 million in a game of baccarat. The casino challenged Mr. Ivey’s privilege to his profits on the basis that he had used an extremely specialized strategy called “edge sorting” in order to enhance his possibilities of winning which, the casino competed, totaled up to Unfaithful. The procedures came before the Supreme Court which was asked to think about (i) the significance of unfaithful in a gambling context, (ii) whether dishonesty was a required aspect of unfaithful and, if so, (iii) the appropriate test for examining dishonesty. Relating to the test for dishonesty, in criminal cases juries have formerly been directed to use the 2-phase test presented by R v Ghosh [1982] QB 1053:

Was the pertinent conduct unethical by the unbiased requirements of sensible and truthful people? This is referred to as the unbiased test.

If the response to the unbiased test is “yes”, did the accused understand that sensible and truthful people would relate to the pertinent conduct as dishonest? This is called the subjective test.

Lord Hughes’ judgment criticized the subjective test under Ghosh, noting its result was that the more deformed the accused’s requirements of sincerity, the less most likely it is that he will be founded guilty of deceitful behavior and observing that “the capability of everybody to encourage ourselves that what we do is excusable understands couple of bounds”. The Supreme Court mentioned that there was no basis for the significance of dishonesty to vary in between civil and criminal procedures which juries must not be directed to use the Ghosh test. When dishonesty is at issue, the question of whether an offender’s conduct was sincere or deceitful is to be identified entirely by using the unbiased requirements of common good people. The subjective, 2nd limb of the Ghosh test is not pertinent as there is no requirement that the offender needs to value that what he has done is, by those requirements, deceitful.

The effect of this choice is that district attorneys will be confronted with one difficulty less to protecting prosecutions for offenses including dishonesty. A fuller upgrade on the judgment and its ramifications will follow but, in the meantime, the complete judgment can be checked out here: Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67.