Ivey v Genting Casinos UK Ltd

English Criminal Law

Ivey v Genting Casinos
‘The Card Players’ by Paul Cézanne

In a case that was to result in a reduction of the Ghosh two-step dishonesty test, a professional card player is left with no choice but to pursue his winnings in the courts when the gaming establishment liable for the payout, cries foul on the pretence of cheating, which itself proves a concept that continues to elude judicial narrowness due to its mutable interpretation and seemingly countless applications.

Having established himself as reputable ‘advantage’ poker player in his home country of the United States, the appellant had spent a considerable number of hours playing Punto Banco at the respondents gambling house in Mayfair London, when at the point of his retirement, he had amassed winnings in excess of £7.7m, after which the respondents refused to release the funds on the premise that when playing against the house, the appellant had resorted to a number of techniques that were considered violative of the rules of play.

With no option other than to litigate, the appellant appeared before the Court of the Queen’s Bench, claiming recovery of his winnings while the respondents held that in short, the appellant had ‘cheated’ under s.42 of the Gambling Act 2005, which reads in part that:

“(1) A person commits an offence if he (b) cheats at gambling….”

While the Act also notes that:

(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….”

In the first instance, the court noted that there was uncertainty as to whether the element of dishonesty was applicable to a claim of cheating, or if by definition, the act itself denoted dishonest intent, regardless of objective or subjective jury opinion, all of which left the court unable to determine if s.42 had in fact been breached, and so instead concluded that such claims would be best remedied in a civil court, thus the claim was dismissed, while the court held that:

“What precisely is condemned as cheating by section 42 of the 2005 Act and what must be proved to make out the offence is not, in my view, clear and it would be unwise if it is unnecessary, as it is, for me to attempt to determine what that might be.”

Whereupon the appellant pursued his claim in the Court of Appeal, who conversely held by a majority that the Ghosh test had no place in a cheating scenario, and was thus inapplicable to s.42 of the 2005 Act, although it was held by Lady Justice Arden that:

“[A] person may be liable to a criminal penalty for cheating if he deliberately interferes with the process of a game so that the game is then played to his or another’s advantage in a way which was never intended by the participants.”

And so when presented to the Supreme Court, the appellant continued his line of argument, while the court attempted to establish if dishonesty as defined by Ghosh, was to become an integral part of cheating under the 2005 Act, and if so, whether the appellant was guilty, and thereby liable for sentencing.

For clarity, the Ghosh test for dishonesty was based on the principle that:

“It is no defence for a man to say “I knew that what I was doing is generally regarded as dishonest; but I do not regard it as dishonest myself. Therefore I am not guilty.” What he is however entitled to say is “I did not know that anybody would regard what I was doing as dishonest.””

Thus having provided a thorough examination of the case itself, along with the mottled history behind the Ghosh test, the court took the liberty of simplifying the dishonesty test through the removal of the subjective element, and so while finding the appellant liable for cheating through his manipulation of the croupier, the court dismissed the appeal, while revising their standing on dishonesty by holding that:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as 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. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

R v Adomako

English Criminal Law

R v Adomako
‘The First Operation with Ether’ by Robert Cutler Hinckley

The difference between criminal negligence and manslaughter is discussed in a case that showcased the immense vulnerability with which we place our care, and therefore our lives, in the hands of medical professionals on any given day.

Having been summoned to serve as a locum anaesthetist at Mayday Hospital, London, during a routine eye operation, the appellant was alerted by an alarm on the Dinamap machine, whereupon he immediately administered two intravenous doses of atropine on the assumption that the patient was having what he thought was an ocular cardia reflex, even though the actual cause of the alarm had resulted from a disconnection of the endotracheal tube providing oxygen to the patient, some four and a half minutes earlier.

In fact, it wasn’t until the appellant noticed how the patient had begun to turn blue, that he attempted to perform cardiopulmonary resuscitation (CPR), which proved ultimately futile when the patient then suffered a cardiac arrest and died, all of which resulted in the appellant appearing before the Central Criminal Court on charges of manslaughter, wherein the jury found him guilty.

Having challenged the judgment in the Court of Appeals, the appellant argued that while a failure to notice the disconnection was short of the duty of care prescribed him, his actions following his discovery were reasonable given the circumstances, and that the court ought to have found him culpable only of misdiagnosis and not criminal negligence, or even manslaughter as convicted.

However with consideration of the proportional trial direction, the court explained that when attempting to determine involuntary manslaughter, a jury must first establish (i) the existence of a duty, (ii) a breach of that duty that amounts to a death, and (iii) negligence sufficient enough to warrant a criminal conviction, and so having deliberated upon the facts presented, the court held that:

“It was in our view clearly open to the jury to conclude that the appellant’s failure to perform his essential and in effect sole duty to see that his patient was breathing satisfactorily and to cope with the breathing emergency which should have been obvious to him, justified a verdict of guilty. They were entitled to conclude his failure was more than mere inadvertence and constituted gross negligence of the degree necessary for manslaughter.”

Whereupon the appellant’s case was presented to the House of Lords on the question as to whether in cases of manslaughter the jury ought to be guided by the test first used in R v Lawrence and now commonly applied in motor vehicle related deaths, or by those principles used in the trial court.

Here the House first turned to R v Bateman, in which the Court of Appeal had held that:

“[I]n order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety of others as to amount to a crime against the state and conduct deserving punishment.”

 While the House noted that in Andrews v Director of Public Prosecutions it had similarly held that:

“Simple lack of care such as will constitute civil liability is not enough: for purposes of the criminal law there are degrees of negligence: and a very high degree of negligence is required to be proved before the felony is established.”

However in Lawrence the test for recklessness was reliant upon the fact:

(i) “[T]hat the defendant was in fact driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to property…”

And:

(ii) “[T]hat in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or, having recognised that there was some risk involved, had nonetheless gone on to take it.”

Thus the House held that when ascertaining liability for manslaughter, the courts ought only to rely upon the  Bateman and Andrews tests in order to simplify their application and assist a jury, although should the judge feel so compelled, he might also consider the Lawrence test where wholly applicable, upon which the court dismissed the appeal in full, while holding that:

“To make it obligatory on trial judges to give directions in law which are so elaborate that the ordinary member of the jury will have great difficulty in following them, and even greater difficulty in retaining them in his memory for the purpose of application in the jury room, is no service to the cause of justice.” 

 

R v Haigh

English Criminal Law

R v Haigh
‘Woman with Dead Child’ by Käthe Kollwitz

As is peculiar to criminal law in most jurisdictions, the necessary component for murder requires evidence beyond a reasonable doubt of the both the act itself (actus reus), and the subjective intention (mens rea) of those accused, and so on this occasion the English criminal courts were left with no option other than to reduce a murder sentence to manslaughter, on grounds that there was simply insufficient evidence to adduce deliberate and unlawful killing, as opposed to what could only be construed as a momentary loss of control on the part of the defendant.

Having been born to unloving and thus dysfunctional parents, the appellant had been later adopted by a well educated and devoted couple when aged only eight years of age, and whose only wish was for her to have a better life than the one she had left behind. Sadly during her adolescence, the appellant was further diagnosed with an IQ of just 74, a personality disorder, attention deficit and hyperactivity disorder (ADHD) and prolonged depression, for which she was on prescribed medication.

After meeting her former partner at the young age of sixteen, the appellant soon became pregnant, and gave birth to their son Billy two years later, and although the two of them remained together for a further three years, her partner was eventually incarcerated for assaulting her; an act which had followed years of his routine verbal and physical abuse towards her both before, and after, their son’s arrival.

At the point of her indictment before the Central Criminal Court, the appellant was reported to have called the ambulance services complaining that her son had stopped breathing, and yet despite clear instructions to perform emergency cardiopulmonary resuscitation (CPR) at the time of the call, her son was pronounced dead almost five hours later; after which it was claimed by court that the appellant had murdered her son by way of asphyxiation, and that there was sufficient medical evidence upon which to sustain the conviction; whereupon the appellant challenged the verdict in the Court of Appeals.

Here, the appellant contended that when reaching summary judgment, the trial court had erroneously accepted circumstantial evidence relating to previous interactions with her son, and which presented her in a poor light, however the court referred to R v Penman, in which the deciding court had held that:

“[W]here it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence.”

Thus the first aspect of her appeal was denied, while on a second count, the appellant claimed that lack of witness testimony, and only one physical symptom of trauma, prevented the court from establishing beyond a reasonable doubt that she had intended to murder, or at the very least unlawfully kill her son in the moments before his death.

Here the court was reliant upon the presence of petechial haemorrhaging upon her child’s face, which in most instances was attributable to asphyxial death. However, there was also theoretical argument that prolonged resuscitation could also prove a contributory factor; yet further circumstantial evidence proposed this as incredible, based upon the appellant’s refusal to perform CPR whilst waiting for the ambulance crew to arrive, and via witness testimony citing visible evidence of the symptoms upon their arrival.

In addition to this, there was further evidence of bleeding from the child’s ears, which according to expert medical testimony, had often been found present when addressing traumatic asphyxiation cases in which young children had become trapped in washing lines, a  fact which only exacerbated the suggestion that the appellant had either strangled or smothered her son whilst alone with him, therefore the court held that there was sufficient evidence for a jury to determine that the appellant had unlawfully killed her child.

This left only the third count, which was that a murder conviction was unsafe due to the first two factors, and that there was simply no direct evidence to support the contention that the appellant had wilfully and with malice, killed her child, but that instead, the best the court could hope to rely upon was a manslaughter charge; an argument that caused the court to uphold the third ground of appeal before quashing the murder conviction on grounds that in R v Stacey it had held that:

“[A]n intent to do serious bodily harm may be quickly formed and soon regretted; but so may a less serious intent, simply to stop a child crying by handling him in a way that any responsible adult would realise would cause serious damage or certainly might do so. That would only provide the mental element necessary for manslaughter.”

R v M’Naghten

English Criminal Law

R v M'Naghten
‘Dance at Insane Asylum’ by George Wesley Bellows

Jury instruction for the defence of insanity dates back as far as the common law of England, however in 1843 the time had arrived for a revision and clarification of what qualified as insanity, and how best to grant the jurors scope to reach a credible conclusion, as was shown in this now landmark case.

In January of that year, Daniel M’Naghten was indicted before the Middlesex Central Criminal Court on grounds that he had wilfully and with malice aforethought, murdered another man when shooting him in the back with a pistol.

During the trial, medical evidence presented was such that suggested a man was of unsound mind when afflicted with morbid delusions capable of rendering him unable to determine right from wrong at the time his act was committed, to which the defendant claimed such weakness as a defence.

When instructing the jury in The Queen v M’Naghten, Tindal LJ expressed that:

“The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.”

Upon which the jury returned a not guilty verdict and the matter was escalated to the House of Lords so as to explore both the existing legal position on insanity, along with the optimal and most effective use of jury instruction where cases required it.

By addressing a number of esteemed judges, the House requested clarification on the following five questions:

  1. What was the common law position on crimes involving insane delusions under a variation of circumstances ranging from simple offences to revenge or acts of public interest?
  1. What were the correct jury instructions in such matters?
  1. How much freedom should be given to jurors when assessing the defendant’s state of mind?
  1. Should a defendant shown to be delusional be acquitted of whatever crime is under discussion?
  1. Can a medical professional provide a credible and measured opinion of a defendant whose acts occurred both out of sight and mind of those providing such testimony?

To which the judges tentatively answered:

1. “To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong.”

2. “[E]very man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

3. “[T]here are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the discretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.”

4.  “[I]f under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.”

5. “[T]he medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.”

To which the House expressed its sincere gratitude at placing the judges in such a position that might otherwise precluded them from venturing an answer to questions as broad as they were narrow.

 

R v Jordan

English Criminal Law

R v Jordan
‘Jury’ by Norman Rockwell

Jury conviction beyond any reasonable doubt can often prove protracted and not without its tenuous merits, however on this occasion the determination that murder was the unequivocal cause of death is brought into stark controversy, when the introduction of alternate medical evidence casts serious doubts upon exactly what happened in the time prior to the victim’s death.

In May 1956, the appellant American Serviceman and three other men were embroiled in a fracas when during the disagreement, the appellant stabbed one of those involved, after which the victim later died of broncho-pneumonia whilst recovering in hospital, and upon which the appellant was indicted for murder and found guilty in Leeds Assizes before being sentenced to death.

Under appeal, an investigation by the American authorities revealed new evidence put forward by two highly reputable medical doctors, and which cited that the cause of death was actually related to the administration of terramycin, a commonly prescribed antibiotic that on this occasion, had triggered and allergic reaction that in turn led to diarrhoea, and which was further exacerbated through its continued administration, despite immediate instructions to cease its use.

In addition to this, hospital staff had also intravenously introduced disproportionate doses of saline, which likewise resulted in a pulmonary oedema through waterlogged lungs, a condition that left untreated, causes broncho-pneumonia, and upon which it had been established as the direct cause of death, while the stab wound itself had since been shown to have healed with no known complications.

Faced with such weighty and compelling testimony, the Criminal Court of Appeal turned to a number of distinguishable cases before relying upon R v Harding, in which it had earlier held that:

“Acquittal must follow if the evidence is such as to cause a reasonable doubt, because that is only another way of saying that the prosecution have failed to establish the case.”

Therefore when giving consideration to the effect that this information would have upon a criminal jury, the court deliberated in saying that when faced with such acute medical facts they saw no reason to suspect that the murder conviction would have been rendered unsustainable, and so with little more to debate the appeal was allowed and the conviction set aside in full, while the court reminded the parties that under normal circumstances:

“[D]eath resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the felonious injury.”  

R v Ireland

English Criminal Law

R v Ireland
‘Western Electric Rotary Telephone’ by Christopher Stott

While s.20 of the Offences Against the Person Act 1861 provides that certain physical acts of violence are grounds for a conviction of grievous bodily harm, the psychological fear of impending violence through the use of words or silence, can prove difficult to sustain as a claim for assault occasioning actual bodily harm. However on this occasion, the House of Lords unequivocally clarified that both words and actions are equally damaging to their intended victims.

In this matter, the appellant had been tried and convicted of assault occasioning actual bodily harm under s.47 of the 1861 Act, which reads that:

“Whosoever shall be convicted upon an Indictment of any Assault occasioning actual bodily Harm shall be liable…to be kept in Penal Servitude for the Term of Three Years…”

Having repeatedly called three women during the night on a number of occasions, and each time remaining silent or breathing heavily, his actions had the cumulative effect of causing their prolonged psychiatric distress by way of palpitations, cold sweats, tearfulness, headaches, anxiety, insomnia, agoraphobia, dizziness, nervousness and breathing difficulties. 

And so in the first instance, the Newport Crown Court had found him guilty and passed sentence accordingly, upon which the appellant challenged the judgment in the Court of Appeal, who upheld the decision while holding that:

“[T]he making of a telephone call followed by silence, or a series of telephone calls, is capable of amounting to a relevant act for the purposes of section 47 of the Offences against the Person Act 1861.”

Granted leave to appeal, the appellant argued his case again before the House of Lords, who reexamined the facts and statutory position in order to reevaluate the scope of s.47, both in terms of actual bodily harm and that of common assault.

Referring first to R v Chan-Fook, the House noted that the Court of Appeals had previously held that:

“[T]he phrase “actual bodily harm” is capable of including psychiatric injury. But it does not include mere emotions such as fear or distress nor panic nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.”

Yet it was also evident from their previous judgment that no specific mention had been made of assault, and so turning to Fagan v Commissioner of Metropolitan Police, the House also noted how the Court of the Queen’s Bench had held that:

“An assault is any act which intentionally or possibly recklessly causes another person to apprehend immediate and unlawful personal violence.”

Thus the House held that wile the women were physically beyond the reach of the appellant, there was simply no tenable grounds to assume that the appellant never intended to inflict violence upon them, particularly when using the words “I will be at your door in a minute or two” therefore the appeal was uniformly dismissed. In closing , the House further reminded the court that s.47 was still subject to the context in which it was applied, and that when determining the inclusion of assault, the court must remain vigilant to its arbitrary over inclusion to convictions, while more importantly holding that:

“The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done.”

R v Williams (Barry Anthony)

English Criminal Law

Williams (Barry Anthony)
‘Glastonbury Mud at Sunset’ by Kurt Jackson

The importance, if not imperative demonstration of causation lies at the heart of a case in which a jury was led to believe that manslaughter by way of robbery was unquestionably evident, when in fact the circumstances behind the event were such that prevented any reasonable direction, or sustainable conviction thereafter.

In June of 1989, the appellant was driving a vehicle with two passengers when a hitch-hiker attempted to obtain a lift to Glastonbury Festival. Having entered the car, the now deceased was subjected to what was held as a pre-meditated robbery attempt, during which he threw himself from the vehicle at speed, an action that resulted in severe head trauma and his subsequent death.

Upon indictment to the Bristol Crown Court, the appellant and the co-defendants were accused of threatening the victim so as to take all of his money, whereupon he had reluctantly offered to pay a nominal sum to the appellant rather than risk suffering possible violence while travelling inside the car.

Despite a lack of causative evidence aside from the witness testimonies of the three men accused, the presiding judge explained to the jury that:

“[W]hat he was frightened of was robbery, that this [money] was going to be taken from him by force, and the measure of the force can be taken from his reaction to it. The prosecution suggest that if he is prepared to get out of a moving car, then it was a very serious threat involving him in the risk of, as he saw it, serious injury.”

And so when reaching a verdict, the jury held that two of the men were guilty of manslaughter, with the appellant found to have been the one threatening the victim shortly before his death, a decision which was challenged in the Court of Appeal on grounds of misdirection and lack of causation between the actual threat and subsequent death.

Here the court turned to R v Roberts, in which the Court of Appeal had held that:

“[I]f of course the victim does something so “daft,” in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.”

While in R v Mackie, the court had further held that:

“Where the injuries are fatal, the [escape] attempt must be the natural consequence of an unlawful act and that unlawful act ‘must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm’….”

A fact that on this occasion, was far from proven, but instead relied upon the urgency of the judge when directing the jury. This translated that the court was unable to sustain the previous verdict of either count, as neither robbery nor manslaughter had been proven beyond any reasonable doubt, therefore the appeal was allowed in full, while the court held that in matters of manslaughter:

“[T]he nature of the threat is of importance in considering both the foreseeability of harm to the victim from the threat and the question whether the deceased’s conduct was proportionate to the threat….”