• In the case of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67, it was confirmed by the Supreme Court what the correct test for dishonesty was in claims of dishonest assistance. The second limb of the Ghosh test was removed.

Facts of Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67

  • Professional gambler Mr Ivey (C) appealed against the decision of the respondent casino (D)
  • This decision was the refusal to pay C his winnings of over £7 million, the basis being that he had cheated
  • Using the ‘edge-sorting’ technique, C could see physical differences between the cards
  • He believed this to be an honest technique, whereas the D found it to be cheating
  • C argued he did not meet the subjective second limb of the Ghosh test
  • The court at first instance found that even though subjectively C did not believe he was cheating, it was the opposite at law and in fact
  • C appealed

Issues in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67

  • Had the D cheated?
  • What is the definition of dishonesty, would this include where the D did not believe he was being such (as in the case here)?

Held by the Supreme Court

  • Appeal dismissed. Even though there is a difference in the standard of proof between criminal and civil proceedings, ‘cheating’ carries the same meaning when considering an implied term of not cheating applying s42. It may not necessarily involve dishonesty.

Lord Hughes

‘Dishonesty’:

  • Lord Hughes recognised that there is “no means a defined concept” when applying dishonesty to a criminal charge. It should be left as a question of fact and standards, and the judge should not attempt to define it further than “the limited extent that section 2 of the Theft Act 1968” [48]
  • “Most of the Theft Act 1968 offences required dishonesty without any elaboration of its meaning … This reflects the view of the Criminal Law Revision Committee that dishonesty was a matter to be left to a jury; it said at para 39 that “Dishonesty is something which laymen can easily recognise when they see it”.” [53]

Ghosh [1982] provided “significant refinement to the test for dishonesty” [54] however:

  • “there are a number of serious problems about the second leg of the rule adopted in R v Ghosh.” [57]
    • it unintentionally shows “the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted of dishonest behaviour.”
    • It depends on the D’s actual state of mind
    • The jurors find difficulty applying it
    • There is “unprincipled divergence between the test for dishonesty in criminal proceedings and … civil”
    • “It represented a significant departure from the pre-Theft Act 1968 law, when there is no indication that such a change had been intended.”
    • “it was not compelled by authority”
  • “the second leg of the test propounded in R v Ghosh [1982] QB 1053 does not correctly represent the law and that directions based upon it ought no longer to be given.” [74]

Therefore the correct test is:

  • “as set out by Lord Nicholls in Royal Brunei Airlines [1995] and by Lord Hoffmann in Barlow Clowes International [2006] … When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence … going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.” [1235]

In the present case, Lord Hughes distinguished between truthfulness and dishonesty, ultimately finding Mr Ivey guilty of cheating

  • “it is a fallacy to suggest that his finding that Mr Ivey was truthful when he said that he did not regard what he did as cheating amounted to a finding that his behaviour was honest. It was not. It was a finding that he was, in that respect, truthful. Truthfulness is indeed one characteristic of honesty, and untruthfulness is often a powerful indicator of dishonesty, but a dishonest person may sometimes be truthful about his dishonest opinions, as indeed was the defendant in R v Gilks [1972] 1 WLR 1341” [1236]

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