The Supreme Court has settled the controversy as to whether dishonesty is an integral part of ‘Cheating’ in the Gambling Act 2005. It is not.

Phillip Ivey v Genting Casinos Uk Limited: [2017] UKSC 67

The meaning of cheating came before the courts in 2014 when Crockfords refused to pay a professional gambler the £7.7 million he had won playing Punto Banco, alleging that his use of the technique known as “edge-sorting’ amounted to cheating. The gambler brought an action in the High Court to recover his winnings: Crockfords claimed (inter alia) that it was an implied term of his gaming contract that he would not cheat. The gambler failed before the High Court. A majority of the Court of Appeal dismissed his appeal, but the reasoning of the first-instance judge and the two Court of Appeal judges in agreement is by no means identical, and the dissenting judge in the Court of Appeal disagreed with all the other three. Thus we have four judges, each of whom has approached the issue of cheating somewhat differently, and come to different conclusions about it.

In a judgment that displays a pleasant familiarity with how one may cheat in a miscellany of circumstances, Lord Hughes has settled the judicial differences in favour of Mitting J and Arden LJ. In summary: –

Mitting J held that the gambler’s actions, in (1) giving himself an advantage which the game precludes, (2) using the croupier as an innocent agent, (3) in circumstances in which he knew that the croupier and her superiors did not realise the consequences of what she had done at his instigation (turning the direction of the cards), amounted to cheating “for the purposes of the civil law”, and was in breach of an implied term of the gaming contract. The judge declined to rule as to whether or not there had been criminal cheating within GA 2005 section 42.

Arden LJ held that dishonesty was not a necessary ingredient.

In the Supreme Court, Lord Hughes said: “The issue whether what was done amounts to cheating, given the nature and rules of the game concerned, is likewise itself a jury question. The judge in the present case applied himself to the question whether there was cheating in exactly this jury manner. He directed himself that it is ultimately for the court to decide whether conduct amounted to cheating and that the standard is objective. In so directing himself he was right…

… It may be that it would not be cheating if a player spotted that some cards had a detectably different back from others, and took advantage of that observation, but Mr Ivey did much more than observe; he took positive steps to fix the deck. That, in a game which depends on random delivery of unknown cards, is inevitably cheating. That it was clever and skilful, and must have involved remarkably sharp eyes, cannot alter that truth.”

Lord Hughes added added that even if dishonesty were an essential ingredient of cheating, he would have found in favour of Genting Casinos. The fact that Mr. Ivey did not regard himself as cheating was immaterial to the question whether, objectively judged, his conduct was dishonest.

For the full judgment, go to Supreme Court Cases

Gerald Gouriet QC is Editor of Smith & Monkcom: The Law of Gambling: