Case report on the definition of dishonesty.

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.

Poker player going "all in" pushing his chips forward

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 [1973] 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.’?



  1. Good evening professor,

    I beg your pardon, but I couldn’t restrain myself to share my question, after reading your noble work.

    The first limb deals with deception & the second limb deals with appropriation of property. I may be wrong, but the second limb is the weakest or its application is extremely limited.

    If there is no appropriation or no actus reus, then there cannot be any question of deception with which the first limb is dealing.

    If first limb is proved then mens rea & defence portion is concluded. Then why should we look back at the second limb which is dealing with appropriation or objective test or actus reus only? If there is no appropriation or no actus reus, then there cannot be any question of mens rea. Is the second limb actually necessary?

    Kindly guide me.

    Annesha Kar Gupta

    1. Dear Annesha,

      Thank you for your comment which has been passed onto Professor Wilson for feedback. I hope to reply to you soon with his comments.

      Best wishes,
      ULP Office

    2. Dear Annesha,
      Professor Wilson requests that you re-phrase your question so he can be better able to assist you.
      Many thanks,
      ULP Office

    3. The second limb of the Ghosh test is the weakest because it is subjective. It asks whether the defendant is aware that the ordinary person would believe their actions to be dishonest. This debate re the Ghosh test is about mens rea. The second part of the Ghosh test has been clarified by the Supreme Court and extended. The lordships have stated that the second limb does not represent the ‘true position in law’ and that the jury should take into account ‘their own notions of honesty’. I believe that this has definitely made the ‘test’ more straightforward as the defendant may have a skewed sense of honesty that is not in line with the notions of honesty of an ordinary person. As societal mores change and as new ways and means of ‘dishonesty’ occur, jurors would most likely reflect these changes in their decisions. I am just beginning my studies so these are my rudimentary insights only and open to discussion.

  2. Good morning professor,

    I beg pardon for this difficulty. I must write more clearly.

    In R V. Ghosh [1982] EWCA Crim 2, House of Lords laid down two forms of tests. First is subjective test in relation to deception & the second test is the objective test in relation to obtaining.

    My question is:

    First limb or the subjective test deals with deception means Mens rea & Defence, while the second limb is dealing with obtaining property or appropriation.

    When deciding any case on dishonesty, generally courts tend to look at the first limb first, & then the second limb. If the deception or the mens rea is present, then it can be presumed that there must be an appropriation.

    There cannot be any offence without wrongful appropriation or actus reus. Why we are considering the appropriation part at second limb? Does the second limb has any value at all?

    Kindly guide me. I am unable to understand.

    1. Hi,
      Professor Wilson has offered the following response:
      “I’m afraid you’re understanding of GHosh is confused. Read Study Guide 12.1.4. It is a case on the meaning dishonesty generally not deception specifically. There are not two ‘forms’. of the test. There is one test with two parts to it.”
      Best wishes,
      ULP Office

      1. Good evening professor,

        Professor, I was confused & feeling helpless, that’s why I asked you this stupid question. Now I understand from your words. I read the study guide for thrice, test book written by you (Wilson’s criminal law), & the whole original judgment. Still I was in dark, but now I got my answer.

        I shall ever be grateful to you. Thank you for being my tutor.

        Mr. Sultanhassan27,

        Thank you for your quick & kind help.

  3. I have to agree with the learned Professor on the ruling of this case. I think the court is sending a message that the people should be the deciding entity in determining the morality of a person. But what about corporations?
    Thank you

    1. Dear Indira,
      Professor Wilson has provided the following response to your question:
      “The test applies to all persons including corporations.”
      Best wishes,
      ULP Office

  4. Good morning professor,
    the significant of the new case above can i conclude that the second limb test in gosh had totally abolish and now the test is just about the view of jury and there is no more subjective test in dishonesty .

    1. Good morning Professor,

      I want to say something about Alan’s comment please.

      I think not. The test is there. In Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67. In this case second leg of the Ghosh discussed as most problematic. Their Lordships were further pleased to held that this leg does not correctly represent the law & direction based upon it ought no longer be given or recognised. The fact-finding tribunal must ascertain the belief or knowledge & then apply the test of standards of ordinary people.

      UKSC criticised, they keep the two legs. First is dishonest belief & standards of ordinary people. The second limb now is giving more important & it has not been abolished.

      Annesha Kar Gupta

  5. The case involves “cheating at gambling” under the Gambling Act 2005, so I quickly perused this online (I do not know the facts of this case).
    At s42 I see, “1. A person commits an offence if he—(a)cheats at gambling, …” Fair enough, I understand why this leads to the necessity of establishing cheating behaviour.

    However in s42 I also see:
    “(3)Without prejudice to the generality of subsection (1) cheating at gambling may, in particular, consist of actual or attempted deception or interference in connection with—
    (a)the process by which gambling is conducted…”

    My question is this: could the casino have relied on the fault of interference in the process by which the game was conducted to invalidate the gambler’s entitlement to winnings? Regardless of any internal motive, it appears that asking the staff to change their process is an interference.

    I ask because the readings discuss the complexity of determining subjective fault (e.g. whether a person was dishonest or was cheating ‘on purpose’, known completely only to him/her) compared to objective fault (regardless of his motive, he was not to interfere with the process of the casino). It appears that where possible, the objective approach is a straighter road to a judgment. Was that unavailable to the defense in this case?

    On a more holistic level–and back to the point of the article, sorry for this divergence–I certainly agree that it is comforting that the determination of honesty returns to what seems like a stronger ‘anchorage’: honesty is what the jury, consisting of ‘average’ persons, perceives it to be in the instance. To create special domains for redefining honesty is to create safer spaces for bad behaviour, in my average opinion.

    1. Dear ccp28,
      Professor William Wilson has replied that the Section 42 requires dishonest interference etc. Hence the court case.
      Kind regards,
      ULP Office

  6. Hello. I would like to know the extent of the decision of Ivey on further cases (and especially on exams). The Court decides, firstly, that cheating does not require dishonesty, but commented on dishonesty anyway. Doesn’t that mean that the decision on dishonesty is an orbiter rather than a ratio. Should we treat it as binding or just advisory and how would it affect future cases and exam papers? should we stick to Ghosh or change to Ivey?

    1. Dear bernoptionsgmailcom,

      William Wilson has provided the following reply to your question.

      “Although orbiter the Supreme Court made clear it applied to all criminal law. It supplants Ghosh and so is relevant for the exams.”

      I hope this helps.

      Best wishes,

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