Gambler whose persuasion influenced card selection deemed to have cheated
A professional gambler has lost his claim to winnings of £7.7m after the UK Supreme Court ruled that his tactics of persuading an unknowing croupier to place certain cards in a certain alignment to increase his chances of winning, constituted cheating.
Five judges unanimously dismissed an appeal by Phil Ivey, who claimed the money from Crockfords casino as winnings at punto bianco, a variant of baccarat. The game is one of chance, but Mr Ivey used a technique known as edge sorting to increase his chances of winning. This involved recognising small differences in one long edge of the cards as opposed to the other and, with an associate who affected superstition, persuading the croupier to turn "good" cards to a different alignment form the rest so that they could be recognised. The croupier did not realise the significance of this tactic.
The High Court and Court of Appeal both categorised this conduct as cheating and dismissed Mr Ivey's claim. On appeal Mr Ivey argued that for the casino to succeed it was his conduct had to have involved fraud and therefore dishonesty.
Lord Hughes, with whom Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agreed, said it would be unwise to attempt a definition of cheating. Its essentials normally involved a deliberate act designed to gain an advantage in the play which was objectively improper given the parameters and rules of the game in question. What amounted to cheating was a jury question. Dishonesty was not a concept that would bring clarity or certainty to a jury’s assessment of whether certain behaviour was or was not cheating.
Here Mr Ivey had staged "a carefully planned and executed sting". If he had secretly gained access to the shoe of cards and personally rearranged them, that would be considered cheating. He accomplished the same results by directing the actions of the croupier and tricking her into thinking that what she did was irrelevant. His actions were positive steps to fix the deck and therefore constituted cheating.
The court further disapproved the second leg of the test for dishonesty in R v Ghosh (1982), as liable to excuse those who made a mistake about contemporary standards of honesty. In civil actions the law had settled on an objective test of dishonesty, and there could be no logical or principled basis for its meaning to differ according to whether it arose in a civil action or a criminal prosecution.
It added that if cheating at gambling required an additional element of dishonesty, it had been satisfied in this case.