Oh, My Ghosh! A New Test for Dishonesty in Criminal Law …

In a case brought before it by an expert bettor, on 25 October 2017 the Supreme Court cast the die for the 2nd limb of the test for dishonesty, initially set out in R v. Ghosh [1982], [1] to be reversed.

Background

The case of Ivey v. Genting Casinos (UK) Ltd t/a Crockford [2017] [2] concerns a specific Mr. Ivey and his accomplice, Ms. Sun, using a method called ‘edge-sorting’ to get a benefit over the casino whilst playing Punto Banco, a variation of Baccarat.

Mr. Ivey, a self-described ‘benefit player’, developed a way of getting the edge by utilizing disparities in how the playing cards had been produced to determine the high-value cards, merely by observing the backs of them.

This was just possible because makers produce cards that are printed somewhat asymmetrically or with minor variations on their backs, but which nonetheless fall within narrow tolerances defined for manufacture.

Mr. Ivey started by playing his hand with the very first shoe of cards, which permitted him to establish his plan for recognizing the high-value cards. Ms. Sun persuaded the croupier to turn specific cards so regarding bringing Mr. Ivey ‘much better luck’– this was a crucial element in their strategy as it made sure that the cards that were of value to Mr. Ivey would be turned a specific way, making them simple to recognize by their irregular backs. As an outcome, the precision of his bets increased dramatically.

When the shoe of cards had gone out, the cards needed to be re-shuffled, so they might be re-used. Mr. Ivey asked for that this is done by machine so regarding avoid the croupier from turning any of the cards he had set-up. The casino concurred.

Throughout the night in between 20 and 21 August 2012, Mr. Ivey and Ms. Sun had the ability to win simply over ₤ 7.7 million before their luck went out and the casino demanded to alter the shoe of cards. No one at Crockfords had become aware of ‘edge-sorting’ before.

The casino chose not to pay Mr. Ivey and Ms. Sun their payouts because, after examining CCTV video of the night, they had the ability to recognize Mr. Ivey’s method and called his bluff.

The Ghosh test for dishonesty.

The test for dishonesty set out in Ghosh had 2 limbs:

whether the conduct suffered was deceitful by the ordinary goal requirements of common, sensible and sincere people; and

whether the offender needs to have understood that normal, sincere people would so concern his behavior.

The 2nd limb was subjective and was meant to secure those who devoted what was objectively an unethical act but did not understand they were doing so.

The Supreme Court Choice

The Supreme Court did not sit with a capacity; rather just 5 judges chose the case. They went all-in and all concurred with Lord Hughes, who provided the judgment.

Lord Hughes set out 6 factors for why he considered that the 2nd limb of the Ghosh test for dishonesty was not legitimate:

It might result in circumstances where the more distorted the accused’s requirements of sincerity are, the less most likely it is that she or he will be founded guilty of deceitful behavior (paras. 58 & 59); &
59); It was considered essential to offer appropriate impact to the concept that dishonesty needs to depend upon the real mindset of the accused– nevertheless, this is not so (para 60);

It set a test that jurors and others frequently found challenging to understand and use– the idea that something that is unethical by regular requirements can become truthful even if the accused believes it is might frequently not be a simple one for jurors to comprehend (para 61);

The test for dishonesty is irregular in between criminal and civil matters (paras. 62 & 63); & 63)
;. It represented a substantial departure from the pre-Theft Act 1968 law, regardless of there being no sign that such a change had been planned (para 64); and

Case law did not, overall, support the view taken in Ghosh and rather chose the easier view that whether a person’s frame of mind was unethical must be chosen by using the requirements of the normal and truthful person (paras. 65 to 73).
At para 60 of the Supreme Court choice, Lord Hughes points out the Court’s thinking in Ghosh regarding why the 2nd limb of the test was required. The Court described that it was required to secure people who do something that is objectively unethical, but they do not think that others would consider it to be unethical. The example provided was that of a male who originates from a nation where public transportation is free when in the UK he takes a trip on a bus without paying.

Lord Hughes disagreed with this thinking on the basis that the guy because scenario would undoubtedly leave conviction by the application of the goal very first leg of the Ghosh test. He stated that ‘in order to figure out the sincerity or otherwise of a person’s conduct, one should ask what he understood or thought about the truths impacting the area of activity where he was engaging.’.

Lord Hughes concluded at para 74 that ‘the 2nd leg of the test recommended in Ghosh does not correctly represent the law which instructions based upon it ought not to be provided.’ He went on to say that:

‘ When dishonesty remains in question the fact-finding tribunal should initially establish (subjectively) the real state of the individual’s understanding or belief regarding the realities … When as soon as his real mindset regarding understanding or belief regarding realities is developed, the question whether his conduct was sincere or deceitful is to be figured out by the fact-finder by using the (goal) requirements of normal good people. There is no requirement that the accused need to value that what he has done is, by those requirements, dishonest’.

The Court held that, because Mr. Ivey had taken actions to repair the deck, he had certainly been deceitful.

Effects of the Choice

This brand-new streamlined test for dishonesty puts another ace up the prosecution’s sleeve and follows a growing pattern of stacking the chances in their favor. It appears that in future it will be simpler for district attorneys to found guilty people for scams and other associated criminal offenses, and it is possible that the variety of convictions will increase as an outcome.