By Mark Dsouza

1. Genting Casino Edinburgh
2. Ivey V Genting Casinos (uk) Ltd 2017
3. Ivey V Genting Casinos Uk Ltd
4. Genting Casinos Uk Ltd Reviews

2017 UKSC 67 UKSC 2016/0213 Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent)On appeal from the Court of Appeal Civil Division (Eng. The recent decision of the Supreme Court in Ivey v Genting Casinos 2017 has resulted in a landmark change to the law of dishonesty, overturning a 35 year old test from the case of R v Ghosh 1982. The previous test from the Ghosh case was that where the prosecution was required to demonstrate that the defendant acted dishonestly, they had to.

Background

.v Genting Casinos (UK) Ltd, t/a Crockfords 2017 UKSC 67 The decision of the Supreme Court of the United Kingdom late last year in Ivey v Genting Casinos (UK) Ltd1 has sparked significant commentary due to its relevance to the historically disparate domains of criminal law and contractual. Genting UK is one of the country’s largest leisure and entertainment businesses with 32 UK casino licences, gentingcasino.com and gentingbet.com and the impressive £150 million development, Resorts World Birmingham. Since coming to the UK in 2006, Genting has steadily bought, refurbished and built brand new premises to offer customers the. Trainee Croupiers. Genting Casinos UK Ltd. Customer service skills, acknowledgement and understanding of customers’. Able to commit to an intensive, fast paced training period ( 40 hours per week).

In 1982, the Court of Appeal in R v Ghosh [1982] QB 1053 took it upon itself to explain how a jury should go about determining whether a person had acted dishonestly for the purposes of the Theft Act, 1968. It said the jury should ask itself two questions viz.,

1. Was what the defendant did dishonest according to the ordinary standards of reasonable and honest people? And if so,

2. Did the defendant realise that reasonable and honest people would regard what he did as dishonest?

If both questions were answered in the affirmative, the defendant could be said to have acted dishonestly.

This clearly was not a ‘definition’ of the term dishonesty – it is far too self-referential to be a definition. It relied on the jury bringing to the table an intuited sense of what it is to be dishonest in order to apply both limbs of the test. After all, as the Criminal Law Revision Committee said in 1966, “Dishonesty is something which laymen can easily recognise when they see it”.

But despite not being terribly illuminating, in the absence of any competing suggestions, over the next 35 years, the Ghosh test came to be used across the length and breadth of the criminal law, wherever questions of dishonesty had to be answered.

The civil law, in the meantime, went its own way with dishonesty. In a plethora of cases including Royal Brunei Airlines v. Tan [1995] 2 AC 378 and Barlow Clowes International v Eurotrust International [2005] UKPC 37 the civil test for dishonesty was explained in the following terms:

“Although a dishonest state of mind is a subjective mental state, the standard by which the law determines whether it is dishonest is objective. If by ordinary standards a defendant’s mental state would be characterised as dishonest, it is irrelevant that the defendant judges by different standards.”

Then, 30 years after the decision in Ghosh, Mr Ivey walked into a London casino, and proceeded, in less than 24 hours of play, to lay the foundations for a radical change to the criminal law’s conception of dishonesty.

The issue in Ivey

Mr Ivey knew that certain brands of playing cards have a very slightly asymmetrical pattern on their backs, and saw that this casino was using one such brand. So, with the help of an accomplice, over a series of games, Mr Ivey persuaded croupier to indulge his ‘luck-inducing superstitions’, by turning some (good) cards along the shorter edge and other cards along the longer edge. Over a period of time, the deck that the croupier was using became so arranged that Mr Ivey could, by looking at the back of a card, discern whether it was likely to be a ‘good’ card or a ‘bad’ card for the game he was playing. He then proceeded to bet larger sums on subsequent games, and carried on, until the casino decided to use a new set of cards. By that time, he’d won £7.7 million.

However, he was refused payment after the casino pored over video footage of all his games and finally figured out how Mr Ivey had gamed the casino. So Mr Ivey filed a civil suit against the casino demanding to be paid, and the casino resisted on the basis that he had cheated. To decide on the soundness of the casino’s allegation, it was necessary to consider whether Mr Ivey had been dishonest.

The Supreme Court’s decision

This civil case made its way through the court system and finally, in 2017, landed up before a 5 judge bench of the Supreme Court. Although this was a civil case, the Supreme Court, in Ivey v Genting Casinos [2017] UKSC 67 decided that there was no logical or principled basis for the civil and criminal law to have different tests for dishonesty [para 63]. It therefore resolved to set the record on dishonesty straight once and for all in respect of both, the civil, and the criminal law.

The Supreme Court chose to apply what was previously the civil law test for dishonesty (taken from Royal Brunei Airlines and Barlow Clowes International) across the board. Although the Supreme Court identified a few problems (some arguably more pressing than others) with the Ghosh test, its principal objection to the Ghosh test was that it gave rise to the counter-intuitive result that “the less the defendant’s standards conform to what society in general expects, the less likely he is to be held criminally responsible for his behaviour” [para 58].

What Ivey does not do

In the immediate aftermath of the Ivey judgment, it was widely reported that the Supreme Court had dropped the second limb of the Ghosh test. This is plainly an oversimplification. The principal problem that the Supreme Court identified with the Ghosh test did indeed arise because of the second limb thereof, but the Supreme Court’s solution was far subtler than merely amputating the said second limb. Instead, it adopted the test that already applied in civil law contexts and explained it in these terms:

“…the fact-finding tribunal [or in the case of a criminal trial, the jury] must first ascertain… the actual [subjective] state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) 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. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest” [para 74].

And what it does

For a person wondering what practical effect this restatement of the test for dishonesty has in criminal cases, the main thing to note is what the Supreme Court means when it requires the jury to ascertain the defendant’s actual state of knowledge or belief as to ‘the facts’. It appears that what the Supreme Court means by ‘the facts’ was not quite the same as what the Court of Appeal in Ghosh had in mind in relation to the first, objective limb of what became known as the Ghosh test. This emerges from a careful reading of para 60 of the Ivey judgment, where the Supreme Court considers the following example drawn from Ghosh:

Foreigner: A man who comes from a country where public transport is free visits Britain. On the first day of his visit, he travels on a bus and gets off without paying. He never had any intention of paying, because he assumed public transport was also free in Britain. His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest.

The Court of Appeal in Ghosh thought that because the foreigner would not have realised that reasonable and honest people would regard what he did as dishonest, he should not be found to be dishonest in law. In other words, it believed that the foreigner would be saved by what became the second limb of the test it laid down, but not by the first limb. Recall that in setting up the example, the Court of Appeal made it clear that the foreigner’s ‘conduct, judged objectively by what he has done, is dishonest.’

The Supreme Court however insists that the same result would have followed even under the first limb of the Ghosh test, because, “in order to determine the honesty or otherwise of a person’s conduct, one must ask what he knew or believed about the facts affecting the area of activity in which he was engaging. In order to decide whether this visitor was dishonest by the standards of ordinary people, it would be necessary to establish his own actual state of knowledge of how public transport works. Because he genuinely believes that public transport is free, there is nothing objectively dishonest about his not paying on the bus.”

Even if the Supreme Court is correct about the potential for reading the first limb of the Ghosh test in this way, this was clearly not how the Court of Appeal in Ghosh itself read it. It seems to have had in mind a purely objective assessment of the conduct of the defendant, in which no account was taken of what the defendant knew or believed to be permissible modes of behaviour. That said, the Supreme Court’s analysis does reveal its own approach to performing the first task that it says that the jury must perform when deciding on questions of dishonesty.

In the Supreme Court’s view, when identifying the defendant’s ‘knowledge or belief as to… facts’, the jury must take note also of the defendant’s knowledge and beliefs as to the normative standards applicable in a society, including apparently, legal normative standards, with the presumable exception of those imported by the requirement not to be dishonest itself. In other words, the defendant’s mistaken belief about the content of the law (apart from the law on dishonesty) is permitted to work in her favour in deciding whether she was dishonest.

This is certainly consistent with s2(1)(a) of the Theft Act 1968 as well. But, in adopting this view of ‘the facts’ to be taken note of, has the Supreme Court just smuggled the second limb of the Ghosh test into the first task that it says a jury must perform when deciding on questions of dishonesty? Not quite. There are at least two cases that would be decided differently under the Ivey test and the Ghosh test.

The first one, identified by the Supreme Court itself, related to the facts of R v Gilks [1972] 1 WLR 1341. In that case, the defendant went to a bookmaker to claim his winnings on a series of bets. To his delight, he was overpaid by about £106, because the bookmaker mistakenly thought that the defendant had bet on a different (winning) horse in one race, than the one he had actually backed. The defendant realised the mistake of course, but kept the money anyway. When he was asked why, he explained that in his opinion, although it would be dishonest to pocket such an overpayment from his grocer, bookmakers were different. If the bookmaker made such a mistake, he said, there was nothing dishonest about pocketing the overpayment.

The Supreme Court noted that Mr Gilks’ statement, at face value, was a statement not only about his own subjective standards of honesty, but also about what he perceived to be the general standard of honesty. In other words, if we believed Mr Gilks, we would have to accept that he subjectively did not realise that reasonable and honest people would regard what he did as dishonest, since he subjectively thought that reasonable and honest people would agree with him that bookmakers were ‘fair game’. So if the Ghosh test applied, the second limb of that test would exonerate Mr Gilks of dishonesty, essentially because of how warped his own standards of honesty (as well as views about everyone else’s standards of honesty) were.

On the other hand, under the Ivey test, the jury first would ascertain what Mr Gilks knew about the situation viz., that he had actually won only £10.62, and was being paid £117.25 because the bookmaker had misread his bet. It would then apply the (objective) standards of ordinary decent people to decide whether his conduct (i.e. keeping the extra £106.63) was dishonest. A properly instructed jury would be very likely to conclude on these facts that Mr Gilks was dishonest. This, no doubt, is a preferable outcome.

The second case that would be decided differently under Ghosh and Ivey is a more speculative one, involving a special kind of Rogue. This rogue performs some conduct thinking (correctly, as it happens) that she is acting dishonestly. The rogue might nevertheless also harbour the (incorrect) belief that everyone else (or more specifically, honest and reasonable people) would not see her actions as dishonest. Under the Ghosh test, the rogue would not be dishonest, despite her subjective realisation to the contrary. She would however be found to have acted dishonestly under the Ivey test. Admittedly, this is an unlikely set of facts, but experience with the criminal law seems to suggest that it is only a matter of time before unlikely sets of facts arise. But Ivey now has us forearmed.

Genting Casino Edinburgh

In summary then, after Ivey, a person like Mr Gilks, who harbours incorrect normative beliefs about what is dishonest behaviour, is no longer excluded by the test for dishonesty. Neither is the rogue who has the correct set of normative beliefs about what is dishonest behaviour, and simply chooses to act contrary to them (while also having an incorrect belief about everyone else’s normative standards of honesty). On the other hand, the foreigner who does something that appears to be dishonest because he harbours incorrect beliefs on matters other than what constitutes dishonest behaviour, continues (rightly) to be excluded by the test for dishonesty. These seem to be positive developments in the law of dishonesty.

Other points of interest

Two interesting side points remain. Firstly, whereas in R v Hinks [2001] 2 AC 241, the House of Lords was quite happy for the civil and criminal law relating to the property rights to diverge, the Supreme Court in Ivey appears to have taken a far less permissive stance. It suggests that where the same concept is relevant both to the civil and the criminal law, the same test ought to apply unless there is a good ‘logical or principled basis’ for the divergence [paras 57(4) and 63].

And secondly, even after Ivey, we are no closer to a definition of dishonesty. But perhaps that is, as Hart put it, the ‘predicament… of the man who says, “I can recognise an elephant when I see one but I cannot define it”’. And if all the jury has to do is to recognise the elephant in this metaphor, then why bother with a definition?

Ivey V Genting Casinos (uk) Ltd 2017

Postscript: But what about Mr Ivey and his £7.7 million? Well, to cut a long story short, the definition of dishonesty adopted by the Supreme Court brought home to Mr Ivey one of the abiding rules of gambling: the house always wins.

Read the scenario and answer the problem question that follows.It is Saturday afternoon and Jennie needs money quickly in order to pay the latest monthly instalment of acar loan, due on Monday. If she does not pay this month, Jennie is worried the car will be re-possessed andshe will not be able to travel to work to earn money to pay her rent and feed her family. Jennie’s brother Jasper calls to ask Jennie if she will babysit Jasper’s young children that evening so he and his partner Riley can go out for a date night.On Saturday evening Jennie is babysitting at Jasper’s house, while Jasper and Riley are out. The childrenare asleep in bed and Jennie is pacing around the lounge worrying about her financial position when shesees £200 in notes underneath a clock on a high bookshelf. That would be enough for Jennie to make hercar repayment. Jennie thinks that her brother may be willing to give her the £200 given her circumstances,but is not sure because she has previously borrowed money from him and failed to pay it back as agreed.Acting rashly, Jennie decides she cannot risk asking Jasper and pockets the £200. She is sure he willdiscover the money missing and resolves to tell him about it later on. When Jasper and Riley return homelater that evening, Jennie quickly leaves without mentioning the money. She uses the money to pay her loaninstalment on Monday morning. Jennie worries all week about Jasper finding out about the missing money,but with each passing day her resolve to come clean grows weaker and eventually she thinks she may havegotten away with it and decides not to mention it.Jasper does not realise that the money is missing until the following weekend, when he is dusting thebookshelf. He cannot think where the money, which he has set aside to buy Riley a birthday present, canhave gone and thinks he must have moved it somewhere else.As Riley’s birthday approaches, Jasper grows increasingly agitated about the missing money. He has lookedeverywhere and cannot find it, and is worried that without it Riley will be disappointed that he has not givenher a nice present. This makes him quite stressed and short-tempered. The evening before Riley’s birthday,Jasper is quite upset and goes for a drink in the pub. He sits on a stool at the bar and has two glasses oflemonade. At around 10 pm another man, Pablo, enters the pub, buys a drink, sits next to Jasper and startsasking him lots of questions about why he looks so worried and why he is drinking alone.At first Jasper tries to be polite but he soon becomes annoyed. Jasper suddenly shouts ‘will you stopbothering me’, turns abruptly towards Pablo and stands up. In the process, Jasper accidentally knocksPablo’s drink into his lap. Infuriated, Pablo quickly squares up to Jasper and shoves him hard in the chest,stepping forward as he does so. Jasper reels backwards and, in doing so, collides with Akma’s back as sheis about to take a drink. The impact forces Akma’s glass against her mouth, causing her to have a swollen lip.Fearing Pablo is going to punch him, Jasper picks up an empty glass from the bar and smashes it overPablo’s forehead, causing a large cut over his right eye. At that moment, some of the bar staff intervene tobreak up the pair, and the pub landlord calls the police, who arrive on the scene shortly afterwards and arrestJasper and Pablo.
Advise Jennie, Jasper and Pablo of their likely criminal liability for any offences, including anydefences they may have.You are instructed to advise three people in respect of their possible criminal liability. (50 marks)Note: before you complete this EMA you should read Guidance on writing your assignment.

Ivey V Genting Casinos Uk Ltd

Question 2

Genting Casinos Uk Ltd Reviews

You should use up to 1500 words for answering this question.Answer the following question in the style of an essay.The Ivey test … gives a wider scope for conviction than Ghosh, and allows a conviction based on ashortfall in conduct and in the absence of culpability.(Bailie, C. (2020) ‘Oh Ghosh – Comment on R v Barton and Booth [2020] EWCA Crim 575’, 2 Bedford Row, April [Blog].Available at https://www.2bedfordrow.co.uk/oh-ghosh-comment-on-r-v-barton-and-booth-2020-ewca-crim-575-by-conall-bailie/ (Accessed 1 July 2020))
Evaluate the impact of the decisions in Ivey v Genting Casinos (UK) Ltd. trading as Crockfords [2017]UKSC 67 and Booth & Anor v R [2020] EWCA Crim 575 on the criminal law test for dishonesty. Do youthink the law in this area is now satisfactory?