Poker cheat loses his winnings

                                      

This is an interesting case because it shows you an interesting way to cheat at cards. However, the technique isn’t used anymore and in this article, you will see why.

There was a time when someone who cheated in poker would get shot right at the poker table. Those days are gone. Nowadays, he may get beat up or banned from the game permanently.  

Phillip Dennis Ivey Jr. (born February 1, 1977), is an American professional poker player who has won ten World Series of Poker bracelets, one World Poker Tour title, and appeared at nine World Poker Tour final tables. Ivey was at one time regarded by numerous poker observers and contemporaries as the best all-around player in the world. In 2017 he was elected to the Poker Hall of Fame. He won millions of dollars as a result of his winnings.

In August 2012, Ivey was reported to have won £7.3 million (approx. $11 million) playing Punto Banco (also known as  North American Baccarat) at Crockfords, a casino in London, in the United Kingdom  but h was refused payment beyond his initial £1 million stake due to Ivey's use of edge sorting. Ivey issued a statement through his lawyers denying any misconduct. "Any allegations of wrongdoing by Crockfords are denied by me in the very strongest of terms. This wasn’t the first time he cheated at cards.

In April 2014, The Borgata Casino in Atlantic City sued Ivey claiming he cheated at baccarat by taking advantage of a defect in the manufacturing of the playing cards. Both Crockfords in the United Kingdom and the Bogota casinos had used the same kind of playing cards that were manufactured by Gemaco.

The Genting Casinos in London in the United Kingdom sued Gemaco (the manufacturer of the playing cards) as well as Phil Ivey. On October 8, 2014, a UK court held that the techniques Ivey used at Crockford's Casino constituted cheating and decided in favour for the casino with costs.

                             

On November 29, 2015, it was reported that Ivey had been given permission to appeal after a judge found that his case raised an important question of law and had ‘a real prospect of successes. On November 3, 2016, his appeal was dismissed by the Court of Appeal, upholding the earlier decision that the technique amounted to cheating.

Over a two-day period; Ivey, age 40, had amassed winnings of £7.7 million ($10.2 million). But when the casino investigated his mammoth haul, they insisted he had used underhand tactics known as 'edge-sorting', by which he identified beneficial cards from the different patterns on each of their backs. The designs differed slightly in patterns, and were recognizable when Ivey persuaded an unsuspecting croupier to handle the most valuable cards in a particular manner by saying he was superstitious. At various times during the manufacturing process, the cards were cut in such a way that slightly more pattern shows up on one edge than the other card. That is why the technique he used was referred to as ‘edging sorting’.  

 Ivey filed an appeal to the United Kingdom’s Supreme Court. His appeal was heard on July 13, 2017 and the decision was announced on October 25, 2017.

Now I will quote decision from the Supreme Court of the United Kingdom. Any of my own  comments will be in italics.

 This case, in which a professional gambler sues a casino for winnings at Punto Banco Baccarat, raises questions about (1) the meaning of the concept of cheating at gambling, (2) the relevance to it of dishonesty, and (3) the proper test for dishonesty if such is an essential element of cheating.

The facts

 Over a period of two days in August 2012, Mr, Ivey, the claimant in this case, deployed a highly specialist technique called edge-sorting which had the effect of greatly improving his chances of winning. He had the help of another professional gambler, Cheung Yin Sun (“Ms. Sun”). First they set up the conditions which enabled him to win. Then, later that evening and the following day, over the course of some hours, he won approximately £7.7milion. (almost three million dollars) The casino declined to pay him, taking the view that what he had done amounted to cheating. His position is that it was not cheating, but deployment of a perfectly legitimate advantage.

Punto Banco is a variant of Baccarat. It is not normally, to any extent, a game of skill. Six or eight decks or, in English nomenclature, packs of 52 cards are dealt from a shoe, face down by a croupier. Because the cards are delivered one by one from the shoe, she has only to extract them; no deviation is permitted in their sequence. She places them face down in two positions on the table in front of her, marked “player”, the “Punto” in the name, and “Banker”, “Banco”. Those descriptions label the positions marked on the table; there need be no person as “player” and ordinarily there is not. She slides the cards from the shoe, face down, one card to player, one to banker; a second to player and a second to banker. In prescribed circumstances she must deal one further card, either to player or to banker or to both, but this possibility is irrelevant to what occurred.

Baccarat is a card game played at casinos. In Punto banco, each player's moves are forced by the cards the player is dealt. In baccarat by contrast, both players can make choices. The winning odds are in favour of the bank with a house edge no lower than around 1 percent.

The overwhelming majority of casino baccarat games in the United States, United Kingdom, Canada, Australia, Sweden, Finland, and Macau are "Punto banco" baccarat and they may be seen labelled simply as "Baccarat". In Punto banco, the casino banks the game at all times, and commits to playing out both hands according to fixed drawing rules, known as the "tableau" (French: "board"), in contrast to more historic baccarat games where each hand is associated with an individual who makes drawing choices. The Player (punto) and Banker (banco) are simply designations for the two hands dealt out in each coup, two outcomes which the bettor can back. The Player has no particular association with the gambler, nor Banker with the house.

Punto banco is dealt from a shoe (small container that holds the decks of cards) containing 6 or 8 decks of cards shuffled together with 8 decks being most commonly used. A cut-card—a coloured (often yellow) piece of plastic, the same size as a regular card, and which is used in shuffling—is placed in front of the seventh-last card, and the drawing of the cut-card indicates the last coup of the shoe. For each coup, two cards are dealt face up (or equivalent) to each hand, starting from "player" and alternating between the hands. The croupier may call the total (e.g., "Five Player, three Banker"). If either Player or Banker or both achieve a total of 8 or 9 at this stage, the coup is finished and the result is announced: Player win, a Banker win, or a tie. If neither hand has eight or nine, the drawing rules are applied to determine whether Player should receive a third card. Then, based on the value of any card drawn to the player, the drawing rules are applied to determine whether the Banker should receive a third card. The coup is then finished, the outcome is announced, and winning bets are paid out. The game is strictly a game of chance.

In the U.S., punto banco is usually played in roped off areas or private rooms separated from the main gaming floor. The game is frequented by high rollers, who may wager tens or hundreds of thousands of dollars on a single hand. Minimum bets are relatively high, often starting at $100 and going as high as $500. Posted maximum bets are often arranged to suit a player. Mini-Baccarat tables are also available in some casinos which are smaller, manned by one dealer and located on the main casino floor. And now to Ivey’s appeal.

The basic object of the game is to achieve, on one of the two positions, a combination of two or three cards which, when added together, is nearer to 9 in total than the combination on the other position. Aces to 9 count at face value, 10 to King inclusive count as nothing. Any pair or trio of cards adding up to more than 10 requires 10 to be deducted before arriving at the counting total. Thus 4 plus 5 equals 9, but 6 plus 5 (which equals 11) counts as only 1.

Punters (croupiers who are employees of the house of whom there need only be one in any of these particular games) bet before any card is dealt and can bet on either the player or banker’s (Casino)  position. The cards are revealed by the croupier after a full hand (or “coup”), usually of four cards, two to each position, has been dealt. Winning bets are paid at evens on player, and at 19 to 20 on banker. It is possible to bet on a tie. In the event of a tie, all bets on player or banker are annulled; in other words, the punter keeps his stake and the only bet paid out on is the tie at odds set by the casino of either eight to one or, at Crockfords, nine to one. It is possible to place other types of bet, but this case does not concern them and they need not be described. The different odds mean that the casino, or house, enjoys a small advantage, taken over all the play. That is standard and well known to all; casinos publish the percentage “house edge” which they operate. In Punto Banco at Crockfords it was 1.24% if player wins and 1.06% if banker wins.

A pack of 52 playing cards is manufactured so as to present a uniform appearance on the back and a unique appearance on the face. The backs of some cards are, however, not exactly uniform. The backs of many packs of cards for social use have an obvious top and bottom: for example the manufacturer’s name may be printed once only, or the pattern may have an obviously right way up and an upside down. In casino games in which the orientation of the back of the card may matter, cards are used which are in principle indistinguishable whichever way round they are when presented in a shoe. (container).

Cards with no pattern and no margin at the edge present no problem; they are indistinguishable. However, many cards used in casinos are patterned. If the pattern is precisely symmetrical the effect is the same as if the card is plain; the back of one card is indistinguishable from any other. But if the pattern is not precisely symmetrical it may be possible to distinguish between cards by examining the backs. (which is what Ivey did. It was is the cards were specifically marked which dishonest gamblers do with their cards)

Edge-sorting” becomes possible when the manufacturing process causes tiny differences to appear on the edges of the cards so that, for example, the edge of one long side is marginally different from the edge of the other. Some cards printed by Angel Co Ltd for the Genting Group (which owns Crockfords) have this characteristic, apparently within the narrow tolerances specified for manufacture. The pattern is not precisely symmetrical on the back of the cards. The machine which cuts the card leaves very slightly more of the pattern, a white circle broken by two curved lines, visible on one long edge than on the other. The difference is sub-millimetric, but the pattern is, to that very limited extent, closer to one long edge of the card than it is to the other. Before a card is dealt from a shoe, it sits face down at the bottom of the shoe, displaying one of its two long edges. It is possible for a sharp-eyed person sitting close to the shoe to see which long edge it is.

Being able thus to see which long edge is displayed is by itself of no help to the gambler. All the cards have the same tiny difference between their right and left long edges, so knowing which edge is displayed tells the gambler nothing about the value of the next card in the shoe. The information becomes significant only if things can be so arranged that the cards which the gambler is most interested in are all presented with long edge type A facing the table, whilst all the less interesting cards present long edge type B. Then the gambler knows which kind of card is next out of the shoe.

In Punto Banco, cards with a face value of 7, 8 and 9 are high value cards. If one such card is dealt to player or to banker, it will give that position a better chance of winning than the other. Thus a punter (the player) who knows that when the first card dealt (always to the “player” position) is a 7, 8 or 9, he will know that it is more likely than not that player will win. If he knows that the card is not a 7, 8 or 9, he will know that it is more likely than not that banker will win. Such knowledge, it is agreed, will give the punter a long-term edge of about 6.5% over the house if played perfectly accurately.

 What is therefore necessary for edge-sorting to work is for the cards in the shoe to be sorted so that all the 7s, 8s and 9s display edge type A, whilst the rest display edge type B. That means rotating the high value cards so that they display edge type A. If the punter were to touch the cards, the invariable practice at most casinos, including at Crockfords, would be that those cards would not be used again. The only person who touches the cards is the croupier. So what had to happen was to get the cards sorted (ie differentially rotated) by type A and type B by the croupier and then to get them re-used in the next shoe, now distinctively sorted. 

All of the games of Punto Banco played by the claimant and Ms. Sun on 20 and 21 August 2012 were captured on CCTV, mostly with contemporaneous audio recording as well. The moment at which they persuaded the croupier, Kathy Yau, to rotate the cards was at 9 pm on 20 August. The video shows it and the words spoken have been transcribed. Before then, the claimant and Ms. Sun had played part of four shoes, the first two plain backed, and the second two Angel cards but with no asymmetry on the back.

The claimant is a high stakes gambler. He began, by his standards, modestly: bets placed on those four shoes ranged from £4,000 to £75,000 per coup. He was losing. At 8.56 pm he requested a new shoe of cards. A new shoe was produced. The cards were blue Angel cards with the rounded pattern described on the back. At 8.57 pm, the claimant asked Jeremy Hillier, the senior croupier overseeing the game: “If I win, can I say I want the same cards again?” to which Mr. Hillier replied he could, “because [he was] not bending them”. The claimant had in fact avoided touching the cards from either the first or second shoe onwards. had he touched them, the cards he touched couldn’t be used again in the same game. A dishonest gambler could have a substance on his fingers so that only he would know the value of the card he touched when it appears again with its face down)

The croupier, Kathy Yau, then put the cards face down in blocks on the table to make the cut, as is the conventional practice. She cut the cards so as to exclude about one deck from play. The claimant asked about the cut: “Why so big?” Ms. Sun said: “They don’t cut the seven cards”, a reference to the traditional cut of 7 cards from the end. Ms. Yau asked if he wanted her to cut 7 cards, to which he replied “yes”, he wanted to play 90 hands, slightly more than the maximum likely to be possible with an eight-deck shoe with a seven-card cut. She complied, after checking with the supervisor on duty in the room. That had the effect of maximizing the number of coups which would be possible with those packs, and of exposing the maximum number of cards to the sorting (rotation) process.

Ms. Yau then dealt the first coup. After the bet was made, and all the cards then dealt, the next stage was for the croupier to turn the cards face up to reveal whether Player or Banker had won. Ms. Sun then asked Ms. Yau in Cantonese to do it, in other words to turn the cards over so that the face showed, slowly. Ms. Yau said “yes”. Ms. Sun then asked her again in Cantonese to turn the cards in a particular and differential way as they were being exposed and before they were put on the pile of used cards. “If I say it is good, you turn it this way, good, yes? Um, no good.” (with a slightly different sounding um). Ms. Yau did not immediately understand what was required. She asked, “so you want me to leave it?” To which Ms. Sun replied, “change, yeah, yeah, change luck”. Ms. Yau: “what do you mean?” Ms. Sun gestured how to turn it. “Turn it this way”. Ms. Yau: “what, just open it? Yeah.” Ms. Sun: “um”, signifying ‘good’ in Cantonese.

 The claimant then chipped in, “yeah, change the luck, that’s good. Anything to change the luck, it is okay with me.” Ms. Sun reiterated her request in Cantonese, “If I say it is not good, you turn it this way. If it is good, turn it this way, okay?” To which Ms. Yau said “okay”. When she turned over the cards of the second coup, Ms. Sun said of four of them, “good”, and of one, “not good”, in Cantonese. Ms. Yau did as requested. What she was being asked to do, and did, was to turn the cards which Ms. Sun called as “good” end to end, and the “not good” cards side to side. In consequence, the long edge of the “not good” card was oriented in a different way from the long edge of the “good” cards. The judge found that she (The croupier) had been “wholly ignorant” of the significance of what she was doing, card by card, at the instructions of Ms. Sun

This procedure was followed for each of the next 79 coups dealt from this shoe. The maximum amount staked by the claimant on the coups towards the end of the shoe reached £100,000. Self-evidently, at no time during the play of this shoe did he derive any advantage from the rotation of the cards requested by Ms. Sun because that rotation occurred at the end, not at the beginning, of each coup. This was all preparation.

Anyone watching what was happening and who is familiar with the game would begin to wonder what Ms. Sun was really up to.

At 10.03 pm, when the shoe was exhausted, the claimant said that he had won with that deck (ie shoe), and that he would keep it. The senior croupier, who had brought in a new collection of cards, was told by the claimant he did not want them, as he “had won £40,000 with that deck”; that was agreed to. The original cards were reused. The casino had not been able to calculate retrospectively whether that assertion of winnings to that point was true.

Before the shoe was reused, it had to be reshuffled. The claimant had earlier asked Ms. Yau’s predecessor as croupier for a shuffling machine to shuffle the cards. The cards were reshuffled by a machine. For a punter using the edge-sorting technique this ensured that the shuffle would be affected without rotating any of the cards unless the croupier did so before they were put into the machine. Ms. Yau did not do so. Manual shuffling would have carried a much higher risk of re-rotation as it was done.

Play with the reshuffled shoe recommenced at 10.12 pm and continued until Ms. Yau went for a half hour break at 10.31 pm. The claimant did not play during her break but resumed when she returned until 3.57 am on 21 August. Ms. Yau was the croupier throughout. The claimant’s stake increased to £95,000 and then to £149,000 per coup. He won approximately £2 million pounds.

The accuracy of his bets on player increased sharply. In the first two shoes in which Angel cards were used, those without an asymmetric pattern on the back, he placed respectively 11 bets and then 1 bet on player and a 7, 8 or 9 only occurred once in that 12 times. On the shoe in which the edge-sorting was done in the manner described, he placed 23 bets on player of which eight were 7s, 8s or 9s. On the succeeding shoes, those at least that were completed on that night, shoes four to eight, the record was as follows. Shoe four, 23 accurate bets out of 27; shoe five, 22 accurate bets out of 25; shoe six, 20 accurate bets out of 26; shoe 7, 23 accurate bets out of 30; shoe 8, 17 accurate bets out of 19. A similar but slightly less pronounced pattern occurred on the following day.

At the end of play on the early morning of the 21^st the claimant asked if he could keep the same shoe, which he referred to as a deck, if he returned on the following day. He was told he could.

Ms. Yau returned to duty at 2 pm on 21^st of August. The claimant resumed play with the same cards at 3 pm and played until 6.41 pm. His average stake was never less than £149,000. For the last three shoes it was £150,000, the maximum that he was allowed to bet each time. In the middle of play of the last shoe, the senior croupier told the claimant that the shoe would be replaced when it was exhausted. When it was, the claimant and Ms. Sun left. By then Ivey had won just over £7.7million pounds.

Crockfords’ practice after a large win such as this is to conduct an ex-post facto investigation to work out how it occurred. After quite lengthy review of the CCTV footage and examination of the cards, the investigators succeeded in spotting what had been done.  Nobody at Crockfords had heard of edge-sorting before.

   

Nine days after the play, on the 30^th of  August, the claimant spoke to Mr. Pearce, Managing Director of the London casinos of Genting UK, who told him that Crockfords would not be paying his winnings because the game had been compromised. The claimant said he had not touched the cards, but did not state that which at the trial he freely admitted, that he had used edge-sorting. Arrangements were made to refund his deposited stake, £1m, on August 31^st.

He sued the casino for his winnings.   The trial judge found that Mr. Ivey gave factually frank and truthful evidence of what he had done. The finding was that he was a professional gambler who described himself as an “advantage player”, that is one who, by a variety of techniques, sets out to reverse the house edge and to play at odds which favour him. The judge found that he does so by means that are, in his (Ivey) opinion, lawful. He is jealous of his reputation and is adamant that what he does is not cheating. He described what he did, with Ms. Sun, as legitimate gamesmanship. The judge accepted that he was genuinely convinced that what he did was not cheating. But the question which matters is not whether Mr. Ivey thought of it as cheating but whether in fact and in law it was. The judge concluded that it was, and so did the majority of the Court of Appeal.  Now it was ujp to the Supreme Court.

The Gambling Act 2005 deals with the rule that gaming contracts are unenforceable. The new Gambling Commission is, however, given by section 336 a new power to declare void a bet taken by a licensee if satisfied that the bet was “substantially unfair”. Amongst the factors which are to be considered when deciding whether a bet was substantially unfair is included the circumstance that either party to the bet either did believe or ought to have believed that an offence of cheating had been or was likely to have been committed in connection with it, although that is by no means the only consideration.

It follows that, if what Mr. Ivey did was cheating, he is in breach of this implied term and cannot as a result recover his “winnings”. As well as advancing this defence, the casino said that what he did amounted to the offence ununder section 42, and that in consequence he could not recover the proceeds of his criminal offence. The trial judge had  decided that the implied term had been broken, and that it was therefore unnecessary to decide whether or not the statutory offence had been committed. The majority of the Court of Appeal dismissed Mr. Ivey’s appeal. The reasoning of Justice Arden and justice Tomlinson in the court of appeal was not identical, but both upheld the judge’s conclusion that what had been done amounted to cheating. Justice Sharp would have allowed the appeal, taking the view that there could not be cheating unless the statutory offence had been committed and that a necessary ingredient of it was dishonesty. Subsequently. his opinion didn’t matter since the other two judges in the court of appeal constituted  a majority decision.

 To the extent that defrauding someone may take the form of depriving him of something which is his, or to which he might otherwise be entitled, it is plain, and wholly unsurprising, that a criminal offence of defrauding must contain in addition an element which demonstrates that the means adopted are illegitimate and wrong. Otherwise much perfectly proper business competition would be at risk of being labelled fraud, since such competition frequently involves strategies to divert business from A to B. Hence it is entirely unsurprising that conspiracy to defraud was held to require in addition the proof of dishonest means. Dishonesty, in this context, supplies the essential element of illegitimacy and wrongfulness.

Although the great majority of cheating will involve something which the ordinary person would describe as dishonest, however this is not invariably so. When, as it often will, the cheating involves deception of the other party, it will usually be easy to describe what was done as being dishonest. It is, however, perfectly clear that in ordinary language cheating need not involve deception, and section 42(3) recognizes this. Section 42(3) does not exhaustively define cheating, but it puts beyond doubt that both deception and interference with the game may amount to it. The runner who trips up one of his opponents is unquestionably cheating, but it is doubtful that such misbehaviour would ordinarily attract the epithet “dishonest”. The stable lad who starves the favourite horse of water for a day and then gives him two buckets of water to drink just before the race, so that he is much slower than normal, is also cheating, but there is no deception unless one manufactures an altogether artificial representation to the world at large that the horse has been prepared to run at his fastest, and by themselves it is by no means clear that these actions would be termed dishonesty. Similar questions could no doubt be asked about the taking of performance-enhancing drugs, about the overt application of a magnet to a fruit machine, deliberate time wasting in many forms of game, or about upsetting the card table to force a re-deal when loss seems unavoidable, never mind sneaking a look at one’s opponent’s cards.

Conversely, there may be situations in which there is deception of the other player but what is done does not amount to cheating. The so-called “three card trick”, much practiced upon travelers on Victorian and Edwardian trains especially to and from racecourses, commonly involved a deception of the target traveler by a group of associates pretending to be unconnected to one another. The idea was to lure the target into playing the game. But once he was ensnared, the game was often played genuinely; the target lost not because of any cheating but because the shuffler of the cards had sufficient speed of hand to deceive the eye: No doubt other exponents of the three card trick had less genuine methods, such as a fourth (concealed) card, which would indeed be cheating. Sometimes the game admits of a level of legitimate deception. The unorthodox lead or discard at bridge is designed to give the opponent a misleading impression of one’s hand, but it is part of the game and not cheating. Pretending to be stupid at the poker table, so that one’s opponent does not take one seriously, and takes risks which he otherwise might not, may or may not be another example.

These far from sophisticated examples demonstrate the inevitable truth that there will be room for debate at the fringes as to what does and does not constitute cheating. To label an activity “advantage play”, as Mr. Ivey and others did, is of no help at all. It asks, rather than answers, the question whether it is legitimate or cheating. It would be very unwise to attempt a definition of cheating. No doubt its essentials normally involve a deliberate and not an accidental act designed to gain an advantage in the play which is objectively improper, given the nature, parameters and rules (formal or informal) of the game under examination. The question in the present case, however, does not depend on the near impossible task of formulating a definition of cheating, but on whether cheating necessarily requires dishonesty as one of its legal elements.

 Where it applies as an element of a criminal charge, dishonesty is by no means a defined concept. On the contrary, like the elephant, it is characterized more by recognition when encountered than by definition. Dishonesty is not a matter of law, but a jury question of fact and standards. Except to the limited extent that section 2 of the Theft Act 1968 requires otherwise, judges do not, and must not, attempt to define it. In this it differs strikingly from the expression “fraudulently”, which it largely replaced,for the judge did define whether a state of mind, once ascertained as a matter of fact, was or was not fraudulent. Accordingly, dishonesty cannot be regarded as a concept which would bring to the assessment of behaviour a clarity or certainty which would be lacking if the jury were left to say whether the behaviour under examination amounted to cheating or did not. The issue whether what was done amounts to cheating, given the nature and rules of the game concerned, is likewise itself a jury question. The judge in the present case applied himself to the question whether there was cheating in exactly this jury manner. He directed himself that it is ultimately for the court to decide whether conduct amounted to cheating and that the standard is objective. In so directing himself he was right.

There is no occasion to add to the value judgment whether conduct was cheating a similar, but perhaps not identical, value judgment whether it was dishonest. Some might say that all cheating is by definition dishonest. In that event, the addition of a legal element of dishonesty would add nothing. Others might say that some forms of cheating, such as deliberate interference with the game without deception, are wrong and cheating, but not dishonest. In that event, the addition of the legal element of dishonesty would subtract from the essentials of cheating, and legitimize the illegitimate. Either way, the addition would unnecessarily complicate the question whether what is proved amounts to cheating.

   The judge’s conclusion, that Mr. Ivey’s actions amounted to cheating, is unassailable. It is an essential element of Punto Banco that the game is one of pure chance, with cards delivered entirely at random and unknowable by the punters or the house. What Mr. Ivey did was to stage a carefully planned and executed sting. The key factor was the arranging of the several packs of cards in the shoe, differentially sorted so that this particular punter didn’t know whether the next card was a high value or low value one. If he had surreptitiously gained access to the shoe and re-arranged the cards physically himself, no one would begin to doubt that he was cheating. He accomplished exactly the same result through the unwitting but directed actions of the croupier, tricking her into thinking that what she did was irrelevant. As soon as the decision to change the cards was announced, thus restoring the game to the matter of chance which it is supposed to be, he first covered his tracks by asking for cards to be rotated at random, and then he abandoned play. It may be that it would not be cheating if a player spotted that some cards had a detectably different back from others, and took advantage of that observation, but Mr. Ivey did much more than observe; he took positive steps to fix the deck. That, in a game which depends on random delivery of unknown cards, is inevitably cheating. That it was clever and skillful, and must have involved remarkably sharp eyes, cannot alter that truth.  

Although the trial judge did not think it necessary to make a finding on the topic, and it is unnecessary to the resolution of this appeal, it would also seem that the facts which he found amounted in any event to a deception brought upon the croupier. Certainly, the judge found that pretending to be superstitious did not by itself cross the line from legitimate play to cheating, comparing it to the skilled poker player who pretends to be a fool. He also found, contrary to one of Crockfords’ submissions, that what occurred did not amount to such deception as altogether to negate the existence of any contract for the game. But that was not a finding that there was no deception at all, and on the facts found there clearly was deception of the croupier into doing something which appeared innocuous or irrelevant, but was in fact highly significant and enabled Mr. Ivey to win when he should not have done. If, therefore, there were indeed (and contrary to the conclusion reached above) a necessary legal element of dishonesty in cheating, such a deception would be prima facie dishonest, unless it is prevented from being so by necessity to satisfy the second leg of the test.

Dishonesty has been adopted since the Theft Act 1968 in the definition of some, but not all, acquisitive criminal offences. Forgery, for example, is defined without reference to dishonesty, but rather by the yardstick of the intention of the forger that his false document should be accepted as genuine and acted upon to the prejudice of someone else (Forgery and Counterfeiting Act 1981), whilst the Fraud Act 2006 retains dishonesty as an element of several forms of fraud. 

The judge did not get to the question of dishonesty and did not need to do so. But it is a fallacy to suggest that his finding that Mr. Ivey was truthful when he said that he did not regard what he did as cheating amounted to a finding that his behaviour was honest. It was not. It was a finding that he was, in that respect, truthful. Truthfulness is indeed one characteristic of honesty and untruthfulness is often a powerful indicator of dishonesty, but a dishonest person may sometimes be truthful about his dishonest opinions. For the same reasons which show that Mr. Ivey’s conduct was, contrary to his own opinion, cheating, the better view would be, if the question arose, that his conduct was, contrary to his own opinion, was also dishonest.

The Supreme Court of the United Kingdom dismissed his appeal.

I think he may very well be considered as a person non grata in any casino he chooses to play in. I know that if I was the owner of a casino. I wouldn’t let him get past the door leading to my casino. Once a poker player is labeled as a dishonest cheat, especially by a supreme court, it is hard to shake that declaration off.