A Blind Bet: Problem Gambling and Sentencing

Introduction

Problem gambling is a public health issue which largely goes un-noticed within the criminal justice system (“CJS”). Its identification and proper presentation before a sentencing court can significantly impact the sentence a defendant receives.

In this article, Joseph Sinclair explores problem gambling as a mental health issue, the research into its identification and treatment in the CJS, how it is factored into sentencing decisions, and sets out some practical steps to identify and present it.

The Gambling Industry & Scale of Problem Gambling

Gambling is a huge source of income for the United Kingdom. An EY report commissioned by the Betting and Gaming Council estimated that its members contributed £7.1bn to UK Gross Value Added in 2021/22, supporting 110,000 jobs, and paying £2bn in excise duties. In 2019, gambling was 0.4% of the UK’s economic output. The Social Market Foundation points out that 2.5% of all jobs in Stoke-on-Trent are in the sector. The industry’s total revenue in the year ending March 2023 was £15.1bn.

Yet it is trite that gambling has a dark underbelly. Beyond the billions lost by punters every year – £14.4bn in Great Britain in 2017/18 alone – problem gambling is increasingly seen as a public health issue. The Gambling Commission’s own figures estimate that 2.5% of adults in the UK suffer from problem gambling (statistics here). An NHS England survey shows those aged 35-44 at greatest risk and men three times more likely than women to be engaging in at-risk or problem gambling.

According to a 2023 report by Public Health England (“PHE”), the direct financial cost to the government associated with harmful gambling is £412.9mn – or £36.9mn more than the founding family of Bet365 paid in tax in 2023. £167.3mn of the direct cost was attributed to “criminal activity”. To reach this calculation, PHE drew on research by May-Chahal et al that found: (a) compared to 0.4% of the general population, 10.4% of men and 5.9% of women in prison in England were experiencing problem gambling; and (b) 5.4% of men and 3% (or 3,744 people) considered that their current offence was linked to gambling. The latter figure was multiplied by the cost of housing a prisoner.

PHE’s calculation of “criminal activity” is a narrow measurement to reach a precise and tangible figure. It does not account for the wider costs associated with policing, the courts, probation’s involvement, and the harm and disruption to others in the commission of these offences. PHE’s total estimated cost of harmful gambling, including societal health impacts, is estimated to be between £1.05bn and £1.77bn.

Gambling as a Mental Health Issue & Its Relationship to Crime

“Gambling disorder” is a recognised mental health condition. According to Bowden-Jones et al, it is “…characterised by persistent and recurrent maladaptive patterns of gambling behaviour, leading to substantial functional impairment and reduced quality of life”. The position is set out further by Page et al (see p.56 et seq. here):

Internationally, leading mental health assessment tools, such as the DSM-5 and WHO ICD, cite that gambling is an addiction with similar cognitive and mental health impacts to substance misuse addiction. It is understood that a person’s cognitive processing becomes impaired when they reach the point that they are chasing their gambling loses with more gambling (Smith and Simpson, 2014). Scientific evidence indicates that this is when brain chemistry and neuro-cognitive ability alters (Blaszczynski et al, 2008; Leeman and Potenza, 2012; Pettorruso et al, 2019; Zhang and Clark, 2020; Goudriaan, 2020; Lee et al, 2020) and as such, rational choices pertaining to committing crime to address gambling related debts and continue in addictive gambling is questionable (Page, 2021).

The relationship between problem gambling and criminality is an understudied area. However, what is available suggests: (a) people with gambling problems are 4.4 times more likely to be in prison than an average person; (b) there is a high incidence of people committing crime to pay for their gambling; (c) prolonged gambling increased the likelihood of a person committing crime to fund it; and (d) gambling is linked not only to acquisitive crime, but street violence, domestic violence, and neglect offences.

The Research: Recognition of Problem Gambling in the Criminal Justice System

Problem gambling is receiving greater attention for its role in criminal offending, but overall awareness remains wanting. In 2023, ten police forces in the UK started to routinely screen suspects over their gambling habits. Earlier work by Cheshire Police found that 13% of the 1,500 they arrested and screened were at risk of a gambling problem (see screening questions here). The researchers working with Cheshire Police concluded that:

• Personnel in the CJS lacked awareness of problem gambling, meaning it is unlikely to be identified at an early stage or at all; and
• There were low levels of referral to treatment services for problem gambling.

A further survey suggested that responsibility shifting for the assessment of suspects by stakeholders also hampered early intervention and diversion at the early stages.

This Cheshire police study is supported by the Commission on Crime & Problem Gambling’s (“CCPG”) findings in its study, Sentencers’ understanding and treatment of problem gamblers. Researchers surveyed and held focus groups with magistrates. While participants appreciated the problems of gambling, with 93% perceiving it as similar to drug or alcohol addiction, there were concerns that a lot of problem gamblers were missed. The report also highlights that the Probation Service does not screen for problem gambling – though efforts are being made to raise awareness. Nor were there referral options. The issue would often be raised by the defendant in their report or by the defence lawyer at sentence. One respondent magistrate summed it up in this way:

It came up through the defence… it was theft… the reason he did it is cos he had a problem with gambling. So, they give you the reason. Then it’s down to you to decide whether this is made up, or if he has actually got a problem with gambling.

Further research by the CCPG with female gambler offenders bolstered these points. Questions about gambling were not asked and seen by the courts as irrelevant – at best they received a leaflet. It only ever became part of the conversation when the defendant raised it. There was also inconsistent treatment by sentencing courts. Tribunals with a perceived understanding of gambling and the need for help would be more willing to offer a second chance. Others felt that they had been made an example, with a calculated and predatory narrative constructed around their offending. In respect of the help they could get, its deficiencies led to disengagement: female addicts were put in male-dominated spaces and subjected to inappropriate behaviour or contact.

How Is Gambling Addiction Considered by Sentencing Courts?

American courts have recognised that addiction can mitigate a defendant’s culpability. In the US v Hendrickson, Judge Bennett observed–

By physically hijacking the brain, addiction diminishes the addict’s capacity to evaluate and control his or her behaviors [sic]. Rather than rationally assessing the costs of their actions, addicts are prone to act impulsively, without accurately weighing future consequences.

Applying this rationale to gambling in US v Dikiara, Judge Adelman observed that the “Defendant did not act out of a desire to harm her employer, nor did she steal in order to finance a lavish lifestyle. Virtually all of the money went to the casino. The records from the casino demonstrated substantial losses, which ate up not just the proceeds of the crime but also defendant and her husband’s savings”.

The position in the courts of England and Wales is perhaps less clear on its face.

For those who acknowledge their addiction, have taken steps to address it, or show a determination to do so, the court can point to the express mitigating factors in the Sentencing Council’s General guideline: overarching principles:

…a commitment to address other underlying issues that may influence the offender’s behaviour (including where the offender has actively sought support but, for reasons outside their control, it has not been received) may justify the imposition of a sentence that focusses on rehabilitation (author’s emphasis).

In response to its Miscellaneous amendments consultation, the Sentencing Council formed the view that “underlying issues” included gambling addiction and it need not be expressly stated. Further assistance is provided in offence-specific guidance in which gambling may feature as an underlying issue, such as the Theft – General Principles:

where an offence is motivated by an addiction (often to drugs, alcohol or gambling) this does not mitigate the seriousness of the offence, but a dependency may properly influence the type of sentence imposed. In particular, it may sometimes be appropriate to impose … an activity or supervision requirement … as part of a community order or a suspended sentence order in an attempt to break the cycle of addiction and offending, even if an immediate custodial sentence would otherwise be warranted.

There is little appellate guidance on sentencing defendants with gambling addictions. However, where the evidence supports it, there is recognition that judges ought to apply the Sentencing offenders with mental disorders, developmental disorders, or neurological impairments guidelines: see, for example: Jenkins [2021] EWCA Crim 1179.

At ¶9 et seq, that guidance provides that culpability may be reduced if, at the time of the offence, an offender was suffering from an impairment or disorder. A sentencing court should assess culpability in line with the sentence-specific or general guidelines. It should then consider whether there is a nexus between the impairment/disorder and the offending behaviour: did it impair their ability to exercise judgement, make rational choices, or understand the consequences of their actions? Importantly at ¶13:

The sentencer, who will be in possession of all relevant information, is in the best position to make the assessment of culpability. Where relevant expert evidence is put forward, it must always be considered and will often be very valuable. However, it is the duty of the sentencer to make their own decision, and the court is not bound to follow expert opinion if there are compelling reasons to set it aside.

The need for evidence is underlined in Goose [2024] EWCA Crim 1335, where the defendant had defrauded multiple victims of over £400,000 in the space of seven years. In granting permission, the Single Judge invited counsel to “substantiate the main planks of the suggested mitigation… particularly as regard the extent of [her] suggested gambling addiction… Given [her] substantial dishonesty in perpetrating these offences, she should not anticipate that unsupported assertions as to her history are necessarily going to be accepted by the full Court”. A note from counsel was provided to say that existing records showed she had spent about £130,000 on betting. At ¶22, Coulson LJ indicated that “this material does not take us any further forward”:

“There is no independent evidence that the appellant had a gambling addiction. Moreover, we note that she spent on gambling less than a third of the amount she defrauded from her victims.”

Discussion

There is a strong economic case for earlier intervention, support, and the diversion of problem gamblers: it will save the country money. With little by way of funding to put this in place, the greatest tool to address the issue is awareness. Yet the research – especially by the CCPG – shows that there are still significant gains to be made. Without effective guidance, training, and signposting for those at all stages of the CJS, it is likely that the prosecution and sentencing of problem gamblers will be piecemeal and dependent on the lived experience or expertise of those faced with a suspect or defendant.

This should not deter defence practitioners. There are tools available for courts to give problem gambling its proper weight within sentencing. What should not be done is to allow a remark made in passing, or an unevidenced assertion in the contents of a pre-sentence report, to form the basis of a submission. Such an approach opens up the doubt-laden evaluative exercise taken by the court in Goose. Where gambling addiction is an operative or central factor, expert evidence is a necessity: having the ability to countenance the calculated and predatory narrative can make a significant difference.

Thought should be given to co-morbidities: gambling often does not operate in a vacuum. Problem gamblers can also have issues with alcohol, drugs or mental health. It can also be leakage for what the CCPG described as a “constellation of wider stresses and trauma”, such as a negative childhood, experiences in poverty, or domestic violence. Put differently, their addiction may one node in a network of vulnerabilities which have led to the offending. That may also be where help is needed most. Exploration of co-morbidities may also be an answer to the point made in Goose: “but they have only spent x on gambling, whereas the rest has gone elsewhere”.

Problem gambling will not always be obvious. Not every person will have bank statements littered with payments to – and very little from – companies in Gibraltar or their high street bookies. The offence may not on its face be acquisitive in nature: Jenkins concerned the collation and sale of child pornography. Gambling addiction is something that may need to be explored or teased out. Where there is a suspicion, asking the questions in the Cheshire Police study may be a good and harmless start. This may support the need for expert evidence and further exploration of the underlying issues.