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Blog posts, with a theme surrounding criminal law, by our BU Law students.

Unravelling the meaning of dishonesty: Card Games in Casinos Article
13th November 2018

Unravelling the meaning of dishonesty: Card Games in Casinos

Lauren McNab and Simon Curry | Second Year LLB (Hons) Students

Ivey v Genting Casinos UK Ltd [2017] 3 WLR 1212 (SC)

Over two days in August 2012 a professional gambler, Mr Philip Ivey, went to Crockfords Club Casino where he played a card game – Punto Banco, a variant of Baccarat. Due to being an advantage player he deployed a highly skilful method of edge-sorting, which relies on noticing design irregularities on the backs of playing cards. This technique, if used correctly, has the effect of greatly improving your chances of winning. Mr Ivey believed edge-sorting was an honest technique that ought to be known to the casino and the casino could protect itself against it. In this circumstance, My Ivey created an air of superstition to persuade the croupier to use the same pack of cards and to turn ‘lucky’ cards through 180 degrees. This increased the odds in his favour and eventually accumulated his winning to £7.7 million. However, Crockfords’s practice after a large win, such as this case, is to conduct an ex post facto investigation to work out how it occurred. Therefore, following examination of the recordings of the play, the investigators identified the technique used. This resulted in the casino operator refusing to pay and refund Mr Ivey’s deposited stake of £1 million. Furthermore, nobody at Crockfords had heard of edge sorting before.

The grounds for the refusal of payment were that no game of Punto Banco had been played, since the rules required the cards to be dealt at random. By edge sorting, Mr Ivey already knew what the cards were likely to be and thus diminished the requirement of the cards being dealt randomly.  There was an implied term that Mr Ivey would not cheat. When Mr Ivey deposited a stake at the casino and played a card game, he entered a contractual relationship with the casino, which requires that he would not cheat, and therefore by edge sorting that term had been broken. It can be suggested then that Mr Ivey had committed the criminal offence of cheating under section 42 of the Gambling Act 2005[1], by interfering with the game for his benefit.

As Genting Casinos refused to pay, Mr Ivey brought an action for the sums which he could have won, claiming that he did not commit the suggested offence because he had deployed a perfectly legitimate advantage. In strengthening his argument, Mr Ivey referred to the ordinary meaning of ‘cheating’ as requiring a dishonest state of mind. Dishonesty can be seen in a plethora of offences, including theft. In such offences, dishonesty is codified under section 2 of the Theft Act 1968[2], but there is still a lack of a complete statutory definition of dishonesty, and therefore a gap exists.

The case of R v Ghosh [1982][3] outlines a two-stage test for dishonesty. The first stage is whether the conduct issued was deemed dishonest by the ordinary standards of reasonable and honest people; and, if yes, the next limb is whether the defendant realised that his conduct was, by those standards, dishonest. In relation to the subjective element Mr Ivey honestly believed that the steps he took were legitimate and lawful, and thus dishonesty was not shown.

However, in Ghosh it was held that cheating does not require dishonesty, and thus the subjective element of the Ghosh test was overruled. It was stated that Mr Ivey had cheated simply because he had acted deliberately to gain an unfair advantage and that his opinion was irrelevant. For example, section 42(3) of the Gambling Act 2005[4] provides that cheating may consist of deception or it may consist of interference in the process of the game. Therefore, the Supreme Court said that Ivey’s actions were ‘positive steps’ to fix the deck, and therefore amounted to cheating, regardless of what he had believed. This inevitably shows that Mr Ivey interfered in the process of the game and his conduct falls within the ordinary meaning of cheating.

The courts then seized the opportunity to highlight the issues of the Ghosh test; the second limb has the unintended effect that ‘the more warped the defendant’s standards of honesty are, the less likely it is that he will be convicted’; it sets a test out that the jurors often find puzzling and difficult to apply; and there is no logical or principled basis for the meaning of dishonesty to differ in connection to civil action or criminal prosecution. In his judgment in Ivey, Lord Hughes held that the test in Ghosh ‘does not correctly represent the law and that directions based upon it ought no longer to be given’.[5] It is suggested that all cases should now adopt the civil case approach, found in Barlow Clowes International Ltd v Eurotrust [2006], which requires only an objective test of dishonesty by ‘ordinary standards’, and thus makes the subjectivity of dishonesty less paramount.[6] It is notable that there is still subjectivity in that the fact-finding tribunal must first ascertain the actual state of the individual’s knowledge or belief as to the facts. ‘When once his actual state of mind a to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people.’[7] Leveson LJ provided in DPP v Patterson [2017] that ‘given the terms of the unanimous observations of the Supreme Court expressed by Lord Hughes, who does not shy from asserting that Ghosh does not correctly represent the law, it is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.’[8] In Starglade Properties Ltd, the Chancellor summarised the effect of Barlow (at [25]): ‘[t]here is a single standard of honesty objectively determined by the court. That standard is applied to specific conduct of a specific individual possessing the knowledge and qualities he actually enjoyed.’[9]

The Supreme Court in Ivey held that ‘there could be no logical or principled basis for the meaning of dishonesty to differ between criminal and civil cases’, illustrating the move to a unified dishonesty test.[10] The test created in Ivey for dishonesty was, however, obiter dicta, and therefore does not strictly bind lower courts. There is, of course, a discretionary power to allow judges to apply Ivey, and as Leveson LJ and other authorities have expressed, this is exactly what the courts plan to do.

If courts now decide to take precedent from Ivey and solely apply the objective limb, dishonesty may become easier to prove. In this context, Ivey assists in clarifying the law, more so than reforming the law. The view has been illustrated in court now to be that the judgment represents the current state of criminal law. Sir Brian Leveson in DPP v Patterson [2017] (at [16]) stated ‘It is difficult to imagine the Court of Appeal preferring Ghosh to Ivey in the future.’ [11] Ivey may have addressed some of the issues with Ghosh by removing the subjective standard but the term ‘dishonesty’ is still undefined to the jury, leaving potential for widespread variation.

Ghosh was not new to being criticised, with Professor Griew providing strong opposition to the objective limb, arguing the issue of the ‘Robin Hood defence’.[12] This constitutes that the defendant could claim their actions were just, and thus legal in the sense that it was benefitting the community. Griew has suggested that there is no ‘ordinary standard’ of honesty for a jury to rely on since each juror uses their own individual standards, and that there is no existence of a relevant community norm.[13] This issue will be exaggerated with the removal of the subjective limb in Ghosh, and could lead to juries finding more acquittal on equitable grounds.

It must be noted that Lady Hale, at an event at the University of Bristol, has voiced doubt that the Supreme Court has the power to enforce the judgment in Ivey, as it created a common law dishonesty definition but really should be a statutory definition.[14] Instead, the UK Parliament should have their chance to alter the law on dishonesty. Hale stated ‘whether a particular state of mind in a particular set of factual circumstances constitutes dishonesty should be a question of law, not a question of fact for the magistrates or jury.’[15] This may suggest a call for the creation of a statute to provide clarity, as the standards of magistrates or juries fluctuate in their level, creating undesired inconsistency.

 

[1] Gambling Act 2005, s 42

[2] Theft Act 1968

[3] R v Ghosh [1982] 3 WLR 110 (EWCA)

[4] Gambling Act 2005, s 43

[5] Ivey v Genting Casinos UK Ltd [2017] 3 WLR 1212 (SC) [74]

[6] ibid

[7] ibid

[8] Director of Public Prosecutions v Patterson [2017] EWHC 2820 (Admin) (DC)

[9] Starglade Properties Limited v Roland Nash and others [2010] EWHC 148 (Ch)

[10] Ivey v Genting Casinos UK Ltd (n 6) [62]

[11] DPP v Patterson [2017] EWHC 2820 (Admin)

[12] Edward Griew, ‘Dishonesty: The Objections to Feely and Ghosh’ (1985) Criminal Law Review 431

[13] ibid 344

[14] Max Walters, ‘Hale says test of dishonesty may be question for parliament’ (The Law Society Gazette, 7 March 2018) <https://www.lawgazette.co.uk/law/hale-says-test-of-dishonesty-may-be-question-for-parliament/5065120.article#commentsJump> accessed 12 November 2018

[15] ibid

Gross Negligence Manslaughter Article
13th November 2018

Gross Negligence Manslaughter

Thomas Wilkinson | Second Year LLB (Hons) Student

R v Zaman [2017] EWCA Crim 1783

The victim (Paul Wilson) purchased and ate, a takeaway meal from the defendants (Mohammed Khalique Zaman) restaurant. Mr Wilson had specifically stated his allergy to nuts, and the waiter who served Mr Wilson assured him the sauce contained no nuts. However, tragically, this was not the case, and Mr Wilson was found dead in his home after suffering an anaphylactic shock; due to a sauce which, contained substantial amounts of peanuts.

Originally, Mr Zaman was charged in accordance with principles of Gross Negligence Manslaughter, set out in R v Adomako [1994]. Mr Zaman gave evidence that he was not in the restaurant at the time the food was prepared and claimed that he had given sufficient training to staff regarding food allergies, which was subsequently ignored. After being found guilty of gross negligence manslaughter and other food safety offences, Mr Zaman was sentenced to six years imprisonment.  Mr Zaman was given leave to appeal and accordingly, this judgment was given.

The grounds for appeal were as follows: the judge had erred in law as to the directions given to the jury concerning breach of duty and causation, as well as issues pertaining to the standard of care the appellant owed to the victim. Alleging that, rather than set the standard to the jury, the judge allowed the jury to decide on the relevant standard owed. However, little importance was attached to this point and, even if the judge had made an error, the standard of care was not considered a real issue of trial and any error did not undermine the safety of the judgment. Regarding breach of duty, it was stated in this case that there were many acts/omissions that may amount to a breach of duty in the circumstances, namely the appellant’s failure to inform customers as to the risk of peanut contamination, failure to adequately train staff and failure to create a system to prevent cross-contamination. Therefore, the jury must be given appropriate directions to identify and then determine whether these acts or omissions constituted a breach of said duty. The jury must be sure that at least one of those acts/omissions constituted a breach. Once an act or omission can be proved to amount to a breach, questions relating to causation, the seriousness of risk, and degree of negligence must be asked.

The case for breach of duty was based on various and distinct facts. It was appreciated that there was not a single unique way the appellant could have discharged his duty. However, the appellant could have ensured that peanuts and derivatives were not used in the restaurants. Failing to do this, the appellant could have issued instructions to staff specifying that they must not serve those with peanut allergies. Several small steps, such as better training and a better system of food safety could have led to a discharge of the duty.  Collectively, it was held that the facts of the case constituted a breach of duty. However, counsel for the appellant stated the collective view of these facts was the wrong way to establish a breach of duty; instead, the direction from Brown (1984) 79 Cr App R 115 were necessary. This direction means that, when the prosecution purports various issues to constitute an element of breach of duty, the jury must be unanimous in what matter/s constituted the breach.

This argument was firmly rejected by the court. Highlighting that, there are many ways the appellant may have discharged his duty. With such contrasting evidence as to whether the appellant discharged his duty, the jury was entitled to consider the evidence. Furthermore, the prosecution’s case was essentially based on one breach – the failure to take reasonable steps to prevent injury to customers with declared allergies. This duty could have been discharged in many ways, and therefore the jury was entitled to consider various factual issues.

Regarding issues of causation, factual causation was evident; however, as affirmed in the Adomako, legal causation must be proved. It was argued that the judge erred in his summing up in two ways. Firstly, it was submitted that the judge confused legal and factual causation when he directed the jury that, if a breach of duty was found, the appellant did not dispute that this would amount to a material contribution to Mr Wilson’s death. The appellant had disputed legal causation, and therefore this direction was not right. Secondly, the judge did not leave to the discretion of the jury the possibility the negligence of the chef was the operating cause of death, and therefore the appellant’s actions had no causative effect. The court rejected this argument. Due to the nature of the breach, this argument was evidentially incorrect and defied logic. Mr Zaman conceded factual causation. It was clear that Mr Wilson purchased a meal from the Mr Zaman’s restaurant which led to his death. The common-sense result of this breach, if proved, was that it materially contributed to Mr Wilsons death, an argument which  Mr Zaman did not readily accept. The decision did not extinguish any liability on behalf of the chef, however, once breach of the defendant’s duty was found, a question of causation naturally followed.

Accordingly, both the conviction and sentence were upheld.

This case is therefore a further reminder to restaurant owners to adhere to food safety legislation and take steps to satisfy their duties of care.

Beating your Burglar: Trespassers and Home-Owners Article
7th November 2018

Beating your Burglar: Trespassers and Home-Owners

Cameron Hill | Final Year LLB (Hons) Student

Home-Owners’ Rights

Working on the Bournemouth University Law Review (BULR) has resulted in wider reading in legal areas and a need to keep abreast of legal updates beyond what is needed at relevant levels of study. The focus for this year’s blog posts for BULR is that of criminal law, which led to developing a broad interest in the latest criminal law updates.

A news item published around Easter 2018 recounted the story of pensioner, Richard Osborn-Brooks who stabbed and killed a burglar, who was attempting to steal from his home. In the wake of the burglar’s death his family have continually left floral tributes outside Osborn-Brooks, home. The pensioner was taken into police custody but released without charge following the incident. The 2018 new story surrounding Osborn-Brooks, re-ignites the question on ‘dis-appropriate’ force when used by a homeowner and the circumstances under which such actions can be legal.

This leads us to a consideration of home-owners’ rights which has been a hotly-debated topic for decades. The topic garnered considerable attention in the early 2000s with the case Martin v R [2001] EWCA Crim 2245 which concerned farmer Tony Martin who shot dead a burglar and injured a second burglar as they fled. The case was brought before Lord Woolf, and the right honourable Mr Justice Wright and Grigson in the Court of Appeal, after Mr Martin was sentenced to 15 years’ imprisonment for his actions by the court at first instance.

In the appeal Lord Woolf discussed whether Mr Martin had indeed been hiding with his unlicensed firearm awaiting his chance to shoot the burglars and the extent to which the argument of self-defence can be used. He also mused that the public reaction to Mr Martins prosecution at first instance was general dismay, coupled with the feeling that the law did not adequately support homeowner’s rights. After all, many felt that a homeowner should hold unfettered rights to protect themselves and their properties.

 

The Law – Crime and Courts Act 2013

The law on use of force was amended in 2013 by the Crime and Courts Act 2013 which inserted Section 76(5A) into the Criminal Justice and Immigration Act 2008. The statute is now endorsed by common law principles of reasonable force by the homeowner as set out in the case of Collins v Secretary of State for Justice [2016] EWHC 33. At paragraph 13 of this case, Sir Brian Leveson set out a two-fold test establishing (a) the genuine belief that the use of force was necessary; and (b) that at the time the degree of force used was also necessary.

The prongs of the test are subjective, thus allowing for mistaken belief as a defence. Therefore, this also means that an individual who feels under threat in their own home may over estimate the danger they are in or be overzealous when using force as highlighted in R v Oye [2014] 1 Cr App R 11.

A caveat in the law is the ability for a victim of the burglary to plead this defence where they are voluntarily intoxicated. The ability to effectively judge a situation is considered muted when the individual is intoxicated. For this reason, this may not be the fairest solution to the problem as in essence, it would prevent people from becoming intoxicated within their own homes for fear that they could not protect themselves in the event of a break-in.

 

The Future

Despite the memorials being laid outside Mr Osborn-Brooks’ home, there have not been calls from the would-be burglar’s family for justice. This is a departure from R (on the application of Collins) v Secretary of State for Justice [2016] EWHC 33. This case was brought by the father of a burglar who was left in a coma following a failed burglary. He brought proceedings in the High Court under the presumption that a law allowing the level of harm suffered by his son and a second invader during the burglary could not be compatible with Human Rights Law, specifically Article 2 (1), the right to life.

His case was unsuccessful, showing a clear shift from the High Court ruling in 2001 and may explain why the elderly Mr Osborn-Brooks who killed his burglar in self defence was released so quickly.

It may have taken nearly 15 years to fully reform the law to the point it has now reached, and while many people will feel more secure knowing they are able to protect themselves as necessary within their house there will always be those who would see the value in protecting the rights of trespassers.

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