Lawyers have cautiously welcomed a suggestion by the president of the Supreme Court that parliament should define what constitutes dishonesty following a high-profile case involving cheating at cards.
Assessing the landmark Supreme Court ruling in Ivey v Genting Casinos Ltd t/a Crockfords, Baroness Hale of Richmond said the case raised a ‘moral question’ that she doubted the courts alone could solve.
Professional poker player Phil Ivey had admitted relying on a technique called ‘edge-sorting’ – spotting tiny differences in the backs of playing cards – to tilt odds in his favour during a visit to Crockfords Club in London’s Mayfair.
He brought an action against the club after it refused to pay out his £7.7m winnings. Ivey claimed his technique was legitimate gamesmanship.
Although upholding lower court rulings that Ivey had cheated, the Supreme Court also found that part of the 36-year-old Ghosh test for determining dishonesty is no longer fit for use. That test, named 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 said the problem with this definition is that ‘the less acute is a person’s moral compass, the more likely he is to be acquitted of dishonesty’. The big issue is ‘whether we should be asking juries and magistrates to answer such moral questions’, she said, adding: ‘I doubt very much whether this is a matter which the Supreme Court could solve. It must be a matter for parliament.’
Fergal Cathie, a partner at international firm Clyde & Co, told the Gazette that legal professionals are still debating to what extent the subjective element plays a role in the determination of dishonesty in both professional disciplinary and criminal proceedings. ‘Baroness Hale’s suggestion for further guidance and clarification from parliament is therefore prudent. However, to leave the matter entirely to parliament to write what would in essence be a perfect algorithm might not be possible due to the evolving nature of moral standards and society itself’.
Richard Foss, a partner at London firm Kingsley Napley and a member of the London Solicitors Litigation Association, said the suggestion that a judge rather than a jury in a criminal case should determine whether a particular set of factual circumstances constitutes dishonesty is a matter of much contention. ‘I would tend to agree that any decision to make this kind of change would have to be taken by parliament,’ he added.