Genting celebrates amid debate over what constitutes cheating

Genting celebrates amid debate over what constitutes cheating

Friday, November 4, 2016 Posted by Andy McCarron
The fall out from a Punto Banco session in 2012 has had big repercussions

Genting UK President and COO Paul Willcock has said that the Court of Appeal’s judgement that Phil Ivey was cheating when he won £7.7m playing Punto Banco at the Crockfords Casino in London justifies the casino operator’s handling of the situation.

The casino withheld the winnings from the playing session in 2012 when staff realised that Ivey was gaining an unfair advantage from ‘edge sorting’ – identifying playing card values from tiny imperfections in the card patterns – and Ivey has been pursuing the matter through the courts ever since, despite a High Court judgement in 2014 that found against him.

Willcock commented: “We are obviously very happy with the decision, which vindicates the steps that Crockfords has taken in this matter. The trial judge held that Mr Ivey’s behaviour amounted to cheating in October 2014 and the Court of Appeal has now reached the same conclusion. Crockfords has acted fairly and honestly at all times and we are therefore pleased that the Court of Appeal has held that the decision not to pay out to Mr Ivey was the correct one.’”

Ivey's lawyer, Matthew Dowd of Archerfield Partners LLP, was not so sanguine about the conclusions made: “The Court of Appeal’s decision leaves the law totally unclear as to what constitutes cheating at gambling. Four judges have looked at this issue now and none of them have been able to agree on the correct interpretation of section 42 of the Gambling Act. It essential that the law is clarified and in light of the decision we are seeking permission to appeal to the Supreme Court.”

The first High Court judgment held that Ivey had been a ‘truthful witness’ but that his play on this occasion amounted in law to cheating. This meant he had breached the terms on which Crockfords agreed to allow him to play: it was common ground that there was an implied term that Ivey would not cheat.

However Ivey’s team contends that for cheating to occur, there must some element of dishonesty at play. Ivey said: “This decision makes no sense to me. The trial judge said that I was not dishonest and the three appeal judges agreed but somehow the decision has gone against me. Can someone tell me how you can have honest cheating? I’d like to add that I am very grateful to Lady Justice Sharp who decided that the trial judge was ‘wrong’ to decide that I had cheated. The public should read her judgment. It makes perfect sense.”

Lord Justice Tomlinson agreed that Lady Justice Sharp had some legitimate points about the interpretation of the criminal offence of cheating in the 2005 Gambling Act, but suggested that they had little relevance in this civil case.

He commented: “I understand and have sympathy with her concern that we should not on this civil appeal espouse a meaning of section 42 of the Gambling Act 2005 which might prove insufficiently certain in its application in the criminal jurisdiction. In my view it is possible to dispose of this appeal without deciding the content of the criminal offence created by section 42 and I prefer to do so on that basis.”

In summarising Lady Justice Arden said: “It is common ground that there was an implied term in the parties’ contract not to cheat. The meaning of cheating for this purpose is to be determined in accordance with section 42 of the 2005 Act. In my judgment, this section provides that a party may cheat within the meaning of this section without dishonesty or intention to deceive: depending on the circumstances it may be enough that he simply interferes with the process of the game. On that basis, the fact that the appellant did not regard himself as cheating is not determinative.”

Totally Gaming says: Should a criminal conviction on the cheating law come into play, then it is highly likely the prosecutors would have to prove a dishonest intent, but in this civil court situation it seems such a stipulation is unnecessary. In a similar blow for Ivey, last month a Federal Judge ruled that while Ivey did not commit fraud with his partner during a baccarat game at Borgata Hotel Casino & Spa in Atlantic City in 2012, but that Ivey did breach casino contract and as such may have to pay back the winnings of US$9.6m.

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