Criminal Law


Supreme Court establishes new test for “dishonesty” in criminal matters


The test for “dishonesty” used to be different for criminal and civil matters. In criminal matters R v Ghosh [1982] EWCA Crim 2 had established a two stage test. Firstly the action had to be objectively dishonest according to the standards of reasonable and honest people. Secondly the defendant himself had to realise subjectively that what he was doing was by those standards dishonest.


Now the Supreme Court held in of Ivey (Appellant) v Genting Casinos (UK) Ltd t/a Crockfords (Respondent) [2017] UKSC 67 that the test for civil matters also applies to criminal cases. This test does not have a strong subjective element. First the actual state of knowledge or belief must be established based on facts, then the question is whether this state of mind is seen as honest or dishonest according to the standards of ordinary decent people.


The case at hand was a civil case. The Appellant was a professional gambler. He managed to win £7.7 million within two days at the respondent’s casino using a technique called “edge sorting”. With the help of an associate he influenced the croupier to turn cards slightly depending on whether the players considered them “good” or “not good” and then to re-use the same deck of cards. This way the Appellant changed the odds in his favour as he could recognise the good cards. The croupier was completely unaware of the technique.


The Supreme Court decided that this behaviour was cheating as it influenced the cards that were used. There was no difference in using the croupier to influence the cards or doing it with one’s own hands. In particular it was held that it was irrelevant whether the Appellant thought he was cheating. Therefore Mr Ivey did not receive his winnings. Additionally the Supreme Court criticised the two stage test in criminal cases for favouring defendants with a more abnormal state of mind. Furthermore the subjective element was seen as difficult to apply in practice. The Supreme Court thus held that the objective test for dishonesty from civil matters also applies in criminal matters.


With this ruling the Supreme Court clarified this area of law and in the future it should be easier to proof dishonesty.



Criminal defence in English courts

Contrary to the practice in German criminal procedure, according to English law no distinction is made between the professions of a public prosecutor and a criminal defence lawyer. This means that lawyers appearing in court may be called to represent the state (Crown) as well as the defendant in court. Most criminal lawyers regard this opportunity to view things from a different perspective not only as a challenge but also as an enrichment of their experience.



Age of criminal responsibility according to English law

Although minors under 10 years of age cannot be prosecuted, minors between 10 and 14 years of age can already be prosecuted to a certain extent.  Whether the minor is already criminally responsible depends on whether he or she is judged able to understand his or her actions. If a minor is arrested after committing a theft and states that he did not “steal” the stolen goods, an English court will usually presume that criminal responsibility is given regarding the illegality of the action because the word “steal” was used.



Law enforcement agencies in England/Wales

The police is normally the authority that investigates crimes in England and Wales. They work closely

with the Crown Prosecution Service, which is very similar to the Public Prosecution in Germany

(Staatsanwaltschaft). Usually the police pass their cases on to the Crown Prosecution Service. With petty crimes, the police may decide not to pass on the case to the Crown Prosecution Service but to issue a warning, to give a police penalty notice (a fine) or to issue a community resolution.

The head of the Crown Prosecution Service (CPS) is the Director of Public Prosecutions and is under the supervision of the Attorney General (the chief public prosecutor). The main job of the Director of Public Prosecutions is basically to commence criminal proceedings after the police have been involved, i.e. the legal proceedings against the accused. There are special units within the Crown Prosecution Services for serious fraud, terrorism and organized crime. The Crown Prosecution Service investigates, when they have been given a case, whether it is in the public interest to take the case to court and whether the evidence available is sufficient for prosecution.

If this is the case, an action will be brought against the criminal. Most of these cases are dealt with in the Magistrates Court.  Serious crimes are referred to the Crown Court. It is only in a Crown Court that a jury decides whether the accused is guilty or not guilty.