The Supreme Court has today delivered its judgment in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67, finding that the renowned professional poker player, Phil Ivey, had cheated by means of edge-sorting whilst playing Punto Banco at Crockfords Club casino in London, resulting in him winning approximately £7.7 million (that Crockfords declined to pay).

The appeal focused on whether, for cheating to be found to have occurred, the two-stage test for dishonesty introduced by R v Ghosh [1982] EWCA Crim 2 must be satisfied, i.e. not only (1) must the court determine that the defendant’s conduct was dishonest by the (objective) standards of ordinary decent people, but also (2) the defendant must appreciate that what he has done is, by those standards, dishonest.

The Supreme Court has found that the subjective second leg of the test propounded in Ghosh does not correctly represent the law. The court must ascertain (subjectively) the actual state of the defendant’s knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. However, the Supreme Court went on to find that if cheating at gambling did require an additional legal element of dishonesty, it would be satisfied in this case.

The following extract from the judgment of Lord Hughes summarises the conduct of Mr Ivey that was found to have amounted to cheating: “The judge’s conclusion, that Mr Ivey’s actions amounted to cheating, is unassailable. It is an essential element of Punto Banco that the game is one of pure chance, with cards delivered entirely at random and unknowable by the punters or the house. What Mr Ivey did was to stage a carefully planned and executed sting. The key factor was the arranging of the several packs of cards in the shoe, differentially sorted so that this particular punter did know whether the next card was a high value or low value one. If he had surreptitiously gained access to the shoe and re-arranged the cards physically himself, no one would begin to doubt that he was cheating. He accomplished exactly the same result through the unwitting but directed actions of the croupier, tricking her into thinking that what she did was irrelevant. As soon as the decision to change the cards was announced, thus restoring the game to the matter of chance which it is supposed to be, he first covered his tracks by asking for cards to be rotated at random, and then abandoned play. It may be that it would not be cheating if a player spotted that some cards had a detectably different back from others, and took advantage of that observation, but Mr Ivey did much more than observe; he took positive steps to fix the deck. That, in a game which depends on random delivery of unknown cards, is inevitably cheating. That it was clever and skilful, and must have involved remarkably sharp eyes, cannot alter that truth.”

A Supreme Court press summary about the judgment can be viewed here.