LAW AND SOCIETY
Ivey v Casinos: Reform to the Dishonest Principle? Muhammad Hasif, University of Southhampton
Introduction If the man on the street were to be asked on the nature of dishonesty, the answer would be as varied as the people surveyed. This was the basic problem of reasoning that the UK Courts faced, the issue of whether dishonesty should be judged objectively or subjectively. For a long time, the UK entrenched its dishonesty principle in the two-step Ghosh test, where the defendant is able to vindicate himself with a subjective test on the objective test for the act.1 However, in 2017, the UK Supreme Court seemed to take a different route in Ivey v Casinos (“Ivey”)2. In that case the UK Supreme Court seemed to have ruled that the test for dishonesty should be an objective test of the person’s act. This article will discuss the salient aspects of Ivey and how it will affect offences that pertain to dishonesty in the UK. This article will also present a comparative analysis of this development to the current Singapore standpoint on dishonesty, based on section 24 of the Penal Code, and a case of criminal misappropriation of property, under section 403 of the Penal Code, Wong Seng Kwan v PP (“Wong Seng Kuan”)3. To scope this essay, the principle on dishonesty that this essay would focus on is on the criminal law effects.
Ivey v Casinos Before critically analysing the case this article will lay out the salient points of the case. This section will also lay out the judgment and reasoning of the UK Supreme Court. A. Facts
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advantage over the casino, when the two parties are not on equal terms, did not amount to cheating as it is not dishonest. The judge at first instance denied the claimants on the basis that he had breached the implied term of the contract, and the Court of Appeal upheld this judgment. B. Supreme Court Judgment The Supreme Court dismisses the claim, but takes a different reasoning standpoint. This first is that, disregarding the evidentiary proof difference between a civil and criminal claim, the notion of cheating in both context should carry the same meaning. Lord Hughes reasoned that adding the notion of dishonesty would “unnecessarily complicate” the situation, essentially “legitimise the illegitimate”.5
Ivey: Lord Hughes’ Reasoning Agaisnt Ghosh Whilst his judgment seemingly has nothing to do with the notion of dishonesty, which he has disregarded, Lord Hughes then went on to discuss the Ghosh test in obiter. His first criticism of the test is that firstly, the occasion of the test had nothing to do with the facts of the case.6 He then discussed how the case seemingly tried to have a compromise of the fact that there were a slew of cases pre-Ghosh that were confusing as to whether the test for “dishonesty” is meant to be objective or subjective.7 He then raises six criticisms of the second limb of the Ghoshtest but ultimately discussing the “principle objection” of the test; which is that “the less the defendant’s standards conform to society in general expects, the less likely he is to be held criminally responsible for his behaviour”.8
The claimant in this case, a professional gambler, had won a total of £7.7m at a Baccarat-type game using a method known as “edge-sorting”, giving him an advantage that was not available to the other players and the casino itself. The defendant, the casino, denied the claimant of his winnings, claiming that his acts had: (a) breached the implied term of the contract of not cheating; and (b) had committed an offence under section 42 of the Cheating Offences Act4 and therefore was not entitled to the winnings he had gained through the act of cheating. Whilst the first aspect was accepted by the claimant, he vehemently denied the second, stating that taking an
However, it is Lord Hughes’ criticism against the second limb of the Ghosh test that is pertinent to this discourse, and which could be listed into a couple of factors. Firstly, he reasons that the function of criminal law is to determine which set of behaviour is criminal and what is not, essentially “setting the standards of behaviour that is acceptable”.9 The second limb of the Ghosh test would allow for the subjectivity of intention, which arguably is unique to each person, to determine the criminality of the act, a convenient loophole and one that allows for 5
Ivey (op cit n 2) at [49].
1
R v Ghosh [1982] 3 WLR 110.
6
ibid at [55].
2
Ivey v Casinos [2017] 3 WLR 1212.
7
Ivey (op cit n 2) at [56].
3
Wong Seng Kwan v PP [2012] SGHC 81.
8
ibid at [57]-[58].
4
Cheating Offences Act 2005.
9
ibid at [59].