This post has been contributed by Professor William Wilson, Module Convenor for Criminal law.
In October a remarkable decision was made by the Supreme Court which promises to reopen the debate as what dishonesty means for the purpose of the law of theft. The case did not involve the offence of theft but that of cheating at gambling under the Gambling Act 2005.
The defendant, who was an internationally famous poker star, managed, by duping the croupier, to improve his chances of winning by convincing her to keep using the same deck of cards rather than, as is usual, replace them after a certain number of hands. What he knew, but she didn’t, was that there was a slight irregularity in the pattern on the back of the cards being dealt which gave him significant clues as to what cards were being dealt. The upshot was that he stood to win £8million dollars. However, the Casino refused to pay out having discovered the scam. He sued the Casino for his winnings. Whether he was to be successful or not depended whether he had cheated within the meaning of the Gambling Act. He argued that he had not. Cheating, like fraud, required proof of dishonesty and he was not dishonest because, as a professional gambler, he considered that what he was doing was exactly what professional gamblers did, namely to increase their chances of winning at cards. It was not cheating but sophisticated ‘gamesmanship’ in the same manner that a sports person might purposefully slow a game down to increase the possibility that his opponent might get frustrated and lose. If other people disagreed with his assessment that he was not being dishonest that disagreement did not mean that his conduct was dishonest, because of the second limb of the Ghosh test. This, it will be remembered, states that a person is dishonest for the purpose of the Theft Act (and presumably therefore the Gambling Act) if ordinary members of the public consider his action to be dishonest and he knows this to be the case. This requirement that the defendant be aware that others would consider his action to be dishonest which is the second limb of the Ghosh test, is what Mr Ivey was relying upon. You will see in your textbook that the second limb introduces a disturbing subjective element into the assessment of whether someone was acting dishonestly. Disturbing, because ultimately the more depraved the views of the defendant the more likely it is that he will assume that others would agree with him. Might Robin Hood not claim, with some plausibility, that what he was doing (stealing from the rich to give to the poor) was so unobjectionable in his eyes that he did not realize that others might think differently? As one commentator argued, the effect of Ghosh is to render the notion of dishonesty unnecessarily complex, particularly in communities, such as trade and finance where standards of honesty may depart from those widely entertained in society at large. The result must be that ‘ claims must multiply and lengthen trials; and it must be in the interests of some defendants to introduce as much evidence as possible on the dishonesty issue in order to obfuscate it. The consequences in terms of expense and of increased difficulty for the jury, not to speak of the danger of unsatisfactory outcomes, are surely enough in themselves to raise serious doubts about the present state of the law. (Griew 1995)
Their lordships ruled that the second limb of the Ghosh did not represent the true position in law, and upheld the view of the lower courts that Mr Ivey’s actions had amounted to cheating. In effect this means that the law returns to the position adopted by the Court of Appeal in R v Feely  QB 530, which took the view taken throughout the criminal law that concepts used in everyday speech should be left to the jury without elaboration or definition. This decision has a far wider ramification than the Gambling Act. It will apply obviously to theft and offences under the Theft ACT 1968 but significantly it will also apply to all types of fraud under the Fraud Act 2006. The significance here is that fraud is a key area where the defendant’s culturally derived notions of honesty may plausibly part company with those of the general public. Think banking deals in the early years of this century! In fraud trials, whether someone has been dishonest or not is generally the only determinant of whether the defendant has done something illegal or simply very clever . The jury’s burden of determining whether the defendant has acted dishonestly is therefore now more straightforward.. Whether someone is dishonest or not post Ivey is a matter for the jury taking into account their own notions of honesty. This simplicity is very much to be welcomed and only serves to beg the question ‘Why has it taken so long for us to arrive here.’?