Uprooting the Invasive Ivey: Reversing the Effects of Ivey v Genting Casinos Ltd on the Definition of Dishonest Appropriation in the English Law of Theft

AuthorEmily Ho Mei Li
PositionBA Law Candidate (Cantab)
Pages189-198
© 2019 Emily Ho Mei Li and Dublin University Law Society
UPROOTING THE INVASIVE IVEY: REVERSING THE
EFFECT OF IVEY V GENTING CASINOS LTD ON THE
DEFINITION OF DISHONEST APPROPRIATION IN
THE ENGLISH LAW OF THEFT
EMILY HO MEI LI
Introduction
In 2012, poker player Phil Ivey walked into Crockfords Club in London with
a trick up his sleeve and a partner in crime. With the help of Cheung Yin-
Sun, he skilfully employed a gambling technique called edge-sorting, and in
two days of Punto Bunco, his winnings approximated £7.7 million. Mr Ivey
was successfully sued for breach of contract, and he appealed. Despite being
a civil case, and one in which dishonesty was not a central issue, the UK
Supreme Court took the opportunity to alter the English criminal law’s test
for dishonesty which the Court of Appeal had previously developed in R v
Ghosh,
1
dramatically reconstructing the test in obiter dicta.
2
As the element
of dishonesty spans across various property and economic offences, the
court’s judgment in Ivey v Genting Casinos Ltd
3
has consequently impacted
the English law of theft. In fact, it has tipped the law in this area into
unprincipled waters, resulting in what Virgo has described as ‘an
unacceptable expansion of the criminal jurisdiction’.
4
This essay critiques
the implications of the judgement in Ivey on the offence of theft in English
law, and makes recommendations for reform.
Section 1 of the Theft Act 1968 defines the offence of theft as
consisting of four elements: (1) dishonest (2) appropriation of (3) property
belonging to another, with (4) intent to permanently deprive.
5
Each of these
elements of the definition affects the scope of the offence and therefore the
BA Law Candidate (Cantab). The author would like to sincerely thank Dr Findlay Stark for
his helpful feedback on this piece and, more generally, for his insights and discussions whilst
supervising her studies in Criminal Law. All errors and omissions are the author’s own.
1
[1982] QB 1053 (AC).
2
While the reconstructed test was strictly obiter in Ivey v Genting Casinos Ltd, in the later
Court of Appeal case of DPP v Patterson [2017] EWHC 2820 (Admin), Sir Brian Leveson
stated that this is the test that should be applied to subsequent criminal cases.
3
[2017] UKSC 67, [2018] AC 391.
4
Graham Virgo, ‘Cheating and Dishonesty’ [2018] CLJ 18, 21.
5
Theft Act 1968, s 1(1) (hereinafter ‘the 1968 Act’).

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