Oliver Willmott considers the ambit of section 42 of the Gambling Act 2005

An offence may be defined with precision by statute, or the clarity absent from statute may be supplied by authority. Or neither may apply.

Take section 42 of the Gambling Act 2005, in the news today. It provides at section 42(1) that:

‘A person commits an offence if he—

(a) cheats at gambling, or

(b) does anything for the purpose of enabling or assisting another person to cheat at gambling.’

But the word ‘cheat’ goes undefined. True, instances of what would amount to cheating are given at subsection (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 or

(b) a real or virtual game, race or other event or process to which gambling relates’

—but they are examples only. Cheating may also consist in – well, any other form of cheating. And in any event, ‘interference in connection with … the process by which gambling is conducted’ is itself not the most precise of definitions.

This is, no doubt, intentional. Cheating, so the explanatory notes to section 42 tell us, ‘has its normal, everyday meaning’, but quite what does and doesn’t amount to cheating is a matter not only of everyday usage but everyday dispute, as anyone who has been in a playground or played a board game knows.

Authority might assist, but there is little of it, not least, no doubt, because in the first nearly 18 years of the Act, only one successful prosecution for an offence contrary to section 42 was brought.

The only useful caselaw is to be found in the very interesting judgment of Lord Hughes JSC in the case of Ivey v Genting [2017] UKSC 67; [2018] AC 391. Although the case is well known to criminal lawyers for rewriting the law of dishonesty, in fact Lord Hughes made clear that not all cheating need involve dishonesty:

‘45.  Although the great majority of cheating will involve something which the ordinary person (or juror) would describe as dishonest, 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 dishonest. It is, however, perfectly clear that in ordinary language cheating need not involve deception, and section 42(3) recognises 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 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.’

But he equally noted that not all deception would necessarily be cheating:

‘46.  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 practised upon travellers on Victorian and Edwardian trains [see the opening chapter of Masefield’s Box of Delights for a fictional example] especially to and from racecourses, commonly involved a deception of the target traveller 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: see for example R v Governor of Brixton Prison, Ex p Sjoland and Metzler [1912] 3 KB 568 . 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.’

All of this drives him to ‘the inevitable truth that there will be room for debate at the fringes as to what does and does not constitute cheating’. ‘It would’, he concludes, ‘be very unwise to attempt a definition of cheating’, although he comes close to one in saying that, ‘[n]o 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.’

This means that a little thought is going to be necessary in considering whether betting whilst in possession of inside information constitutes an offence under the Act. As has been pointed out, that marks a contrast with the situation in relation to insider dealing in securities where the offence is spelled out in the Criminal Justice Act 1993 so as to define not just the offence (section 52), but also the securities to which it applies (section 54), what amounts to dealing (section 55) and, critically, what constitutes inside information (section 56).

The only official consideration of the inside information issue of which I am aware is in the form of the Gambling Commission’s Policy Position Paper, ‘Misue of inside information’, dated 30 August 2018. It sets out a ‘misuse of information spectrum’ which was developed to provide a guide to an appropriate response to incidents. It is not, the Commission emphasises, to be seen as a ‘firm matrix to drive automatic responses, but as a guide to help inform decision-making’. As for when charges might be considered, the paper sounds a cautious note:

‘There may be some limited circumstances where criminal enforcement action may be undertaken. For example, the Commission may take direct action in high-impact cases, where there is a history of previous behaviour known to the Commission, or where there is a need to establish legal precedent. Cases of repeat offending would be treated more seriously.’

As for the matrix itself, it begins with type 1 ‘Art of Betting’ – relying on knowledge obtained through legitimate research done through one’s own observation or consulting public sources, continues with type 2 ‘By chance (uninformed)’ – information overheard in the pub, for instance – and reaches the question of ‘Restricted information’ at type 4. That includes, for example, ‘[a] club official with inside knowledge of the club manager leaving his position who uses … this information for betting purposes’. In these circumstances the Gambling Commission, it is said, would have concerns. The paper continues:

‘In most cases, the appropriate form of sanction would be through the Sports Body or through the employer, combining with the betting operator refusing the bet under contractual germs.

The Commission may consider taking action to void a bet.’

There is no mention of prosecution at that point, but, of course, as the paper says, it is not a ‘firm matrix to guide automatic responses’.

There now seems to be the prospect of consideration by the courts of the extent to which betting with inside information constitutes cheating.

Further reading

‘The Legal Issues Relating to “Betting-gate”, [2025] Crim LR 144–155

‘Editorial – Prosecutions and Gambling Offences [2024] Crim LR 505–506