The president of the Supreme Court has said further questions on what constitutes dishonesty sparked by the court’s decision that a professional gambler cheated his way to a multi-million casino win may be best answered by parliament and not judges and juries.
Baroness Hale of Richmond said last year’s Ivey v Genting Casinos Ltd t/a Crockfords case raised a ‘moral question’ that she doubted the Supreme Court could solve.
In Ivey professional poker player Phil Ivey admitted relying on a technique called ‘edge-sorting’ - spotting tiny differences in the backs of playing cards - to tilt the odds in his favour. He brought an action against the Crockfords Club in Mayfair after it refused to pay out his £7.7m winnings on the grounds that he cheated. Ivey claimed his technique was legitimate gamesmanship.
In its judgment, the Supreme Court backed rulings that Ivey had cheated, but also found that part of a 35-year-old test for determining dishonesty in criminal trials is no longer fit for use. The court said the second stage of the two-part Ghosh test, had ‘serious problems’. That test, defined after the 1982 ruling in R v Ghosh, asks juries to consider whether the defendant would have realised that ordinary honest people would regard their behaviour as dishonest.
Hale told an alumni event at the University of Bristol: ‘The real objection is that the less acute is a person’s moral compass the more likely he is to be acquitted of dishonesty.’ She added that the big issue is ‘whether we should be asking juries and magistrates to answer such moral questions’.
But Hale noted that legal commentators, including Professor Edward Griew, have argued that the first test in Ghosh is also wrong. Griew, author of The Theft Acts 1968 and 1978, criticised the so-called ‘Robin Hood defence’.
Accoring to Hale, Griew claimed it is naïve to suppose that there is such a thing as ‘the standards of ordinary decent people’ and questioned whether members of a jury may have to ask themselves what they would have done and possibly impose higher standards upon defendants than they would upon themselves.
‘All this lead Griew to argue that whether a particular state of mind in a particular set of factual circumstances constitutes dishonesty should be a question of law, not a question of fact for the magistrates or jury,’ Hale said.
‘I doubt very much whether this is a matter which the Supreme Court could solve – even supposing that it ever got the opportunity of doing so, which seems unlikely. It must be a matter for parliament,’ she added.