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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hayes & Anor v Rex [2024] EWCA Crim 304 (27 March 2024) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2024/304.html Cite as: [2024] WLR(D) 151, [2024] EWCA Crim 304 |
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ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
THE HONOURABLE MR JUSTICE COOKE
T20170213
HIS HONOUR JUDGE GLEDHILL QC
T20167025
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE POPPLEWELL
and
MR JUSTICE BRYAN
____________________
| (1) TOM HAYES (2) CARLO PALOMBO |
Appellants |
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- and |
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| REX |
Respondent |
____________________
(instructed by Karen Todner Solicitors) for the First Appellant
James Hines KC, Gillian Jones KC and Max Baines
(instructed by The Serious Fraud Office) for the Respondent in Hayes
Tim Owen KC, Katherine Hardcastle and Tim James-Matthews
(instructed by Hickman & Rose Solicitors for the Second Appellant)
James Waddington KC and Max Baines
(instructed by The Serious Fraud Office) for the Respondent in Palombo
Hearing dates: 14, 15 and 18 March 2024
____________________
Crown Copyright ©
Lord Justice Bean, Lord Justice Popplewell and Mr Justice Bryan:
Introduction
LIBOR and EURIBOR
"1. BBA LIBOR is the BBA fixing of the London Inter-bank Offered Rate. It is based on offered inter-bank deposit rates contributed in accordance with the Instructions to BBA LIBOR Contributor Banks.
2. The BBA will fix BBA LIBOR and its decision shall be final .
3. BBA LIBOR is fixed on behalf of the BBA by the Designated Distributor [Thomson Reuters] and the rates made available simultaneously via a number of different information providers.
4. Contributor Panels shall comprise at least 8 Contributor Banks. Contributor Panels will broadly reflect the balance of activity in the inter-bank deposit market. Individual Contributor Banks are selected on the basis of reputation, scale of activity in the London market and perceived expertise in the currency concerned, and giving due consideration to credit standing.
5. The BBA, in consultation with the BBA LIBOR Steering Group, will review the composition of the Contributor Panels at least annually.
6. Contributed rates will be ranked in order and only the middle two quartiles averaged arithmetically. Such average rate will be the BBA LIBOR Fixing for that particular currency, maturity and fixing date. Individual Contributor Panel Bank rates will be released shortly after publication of the average rate.
9. If an individual Contributor Bank ceases to comply with the spirit of this Definition or Instructions to BBA Libor Contributor Banks, the BBA, in consultation with the BBA LIBOR Steering Group, may issue a warning requiring the Contributor Bank to remedy the situation or, at its sole discretion, exclude the Bank from the Contributor Panel."
"A. An individual BBA LIBOR Contributor Panel Bank will contribute the rate at which it could borrow funds, were it to do so by asking for and then accepting inter-bank offers in reasonable market size just prior to 1100.
B. Rates shall be contributed for currencies, maturities and fixing dates and according to the quotation conventions specified in Annexe One.
C. Contributor Banks shall input their rate without reference to rates contributed by other Contributor Banks.
D. Rates shall be for deposits:
X made in the London market in reasonable market size;
X that are simple and unsecured;
X governed by the laws of England and Wales;
X where the parties are subject to the jurisdiction of the courts of England and Wales.
F. Rates shall be contributed in decimal to at least two decimal places but no more than five.
G. Contributors Banks will input their rates to the Designated Distributor between 1100hrs and 1110hrs, London time.
The Designated Distributor will endeavour to identify and arrange for the correction of manifest errors in rates input by individual Contributor Banks prior to 1130.
The Designated Distributor will publish the average rate and individual Contributor Banks= rates at or around 1130hrs London time.
Remaining manifest errors may be corrected over the next 30 minutes. The Designated Distributor then will make any necessary adjustments to the average rate and publish as the BBA LIBOR Fixing at 1200hrs."
"The EURO Interbank Offered Rate "EURIBOR" is the new money market reference rate for the euro. This Code lays down the rules applicable to EURIBOR and the banks which will quote for the establishment of EURIBOR.
EURIBOR is the rate at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 am. Brussels time ("the best price between the best banks"). It is quoted for spot value (two Target days) and on actual/360 day basis."
"ARTICLE 6: OBLIGATIONS OF PANEL BANKS
1. Panel banks must quote the required euro rates:
- to the best of their knowledge, these rates being defined as the rates at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 a.m. Brussels time ("the best price between the best banks")
- for the complete range of maturities as indicated by the Steering Committee
- on time as indicated by the screen service provider
- daily except on Saturdays, Sundays and Target holidays
- accurately with two digits behind the comma
2. Panel banks must commit themselves to transmit to the European System of Central Banks all the necessary figures to establish an effective overnight euro rate, and in particular their aggregate loan volume and the weighted average interest rate applied.
3. Panel banks must make the necessary organisational arrangements to ensure that delivery of the rates is possible on a permanent basis without interruption due to human or technical failure.
4. Panel banks must take all other measures which may be reasonably required by the Steering Committee or the screen service provider in the future to establish EURIBOR.
5. Panel banks must subject themselves unconditionally to this Code and its Annexes, in their present or future form.
6. Panel banks must promote as much as possible EURIBOR (e.g. use EURIBOR as reference rate as much as possible) and refrain from any activity damageable to EURIBOR."
Factual and Procedural background
"There is a real possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black regarding the definition and proper operation of LIBOR to those which were reached in Mr Hayes's own case, and will conclude that this renders his conviction unsafe."
The Crown Court proceedings in the case of Mr Hayes
"Tom Hayes conspired together with [others] to defraud in that:
(1) knowing or believing that [UBS/Citibank], through the trading activity of Tom Hayes and others, was a party to trading referenced to the London Interbank Offered Rates for Japanese Yen ("Yen LIBOR");
(2) they dishonestly agreed to procure or make submissions of rates by [UBS/Citibank] into the Yen LIBOR setting process which were false or misleading in that they:
(a) were intended to create an advantage to the trading of Tom Hayes and others; and
(b) deliberately disregarded the proper basis for the submission of those rates,
thereby intending to prejudice the economic interests of others."
(a) "proper basis"
The proper basis for the submission of rates was in accordance with the
definition of LlBOR published by the British Bankers' Association, namely: "The rate at which an individual Contributor Panel Bank could borrow funds were it to do so by asking for and then accepting inter bank offers in reasonable market size just prior to 11.00 London Time" ("the Definition").
(b) "deliberately disregarded"
The submissions deliberately disregarded the proper basis by purporting to comply with the Definition when they did not, in that they were intended to create an advantage to the trading position of Hayes and others.
"i) he had not agreed with any individual as named in the indictment to procure the making of the submission by a bank of a rate that was not the bank's genuine perception of its borrowing rate in accordance with the LIBOR definition;
ii) he was never trained in the LIBOR process and, in particular, as to what was or was not a legitimate consideration for a submitter to take into account in making a LIBOR submission;
iii) he had no regulatory or compliance obligations imposed on him by either UBS or Citigroup when he was employed by them;
iv) he saw that other banks answered the question as to what was the appropriate LIBOR submission in a manner favourable to their own commercial trading interests;
v) he perceived that the activity at panel banks in making the LIBOR submissions gave rise to an inherent conflict of interest as the banks would always have a commercial incentive to make submissions which inured to their commercial advantage;
vi) he considered that what he was doing was common practice in the banking industry at the time and was regarded as legitimate by a significant number of submitters, traders and brokers. He understood that the banks, as a matter of practice, based submissions on their own commercial interests;
vii) was aware that banks were involved in the practice of low-balling (i.e. the submission by a particular bank that the LIBOR should be lower than that particular bank's actual cost of borrowing in order to enhance that bank's reputation, i.e. that it was able to borrow at a lower rate than in fact was the case);
viii) actions were not only condoned, but also encouraged by his employers and he was instructed to act in the way which he did;
ix) there was a range of potential answers to the LIBOR question which could be justified as a subjective judgment of the panel bank's borrowing rate. The defendant did not personally realise that the selection of a figure within that range by reference to a trader's or bank's trading advantage was dishonest by the standards of ordinary, reasonable and honest people."
"3. I am asked to make specific rulings in relation to three further matters The defence require, it is said, the following rulings:
"1. That there is no legal duty to submit in accordance with the definition of LIBOR and that as a result there is no unlawful act in relation to the submission process.
"2. If a range of figures is available to a submitter then any submission within that range accords with the definition, even if prompted by a request from another party and cannot therefore be false.
3. If the definition is a black letter definition, then the prosecution cannot import a rule of "no commerciality" into the submission."
4. The prosecution's case is that there is a legal duty when making a submission not to put forward a rate which is not a genuine assessment of the rate at which an individual contributor panel bank could borrow funds in accordance with the definition. It is said that there is a duty not to make dishonest fraudulent misrepresentations in putting forward a rate which is known not to be a genuine assessment of borrowing rate but is in fact a rate designed to advantage the bank's trading.
5. In my judgment the prosecution is right in that submission. In putting forward a rate which is not believed to be the single figure which represents a genuine assessment of borrowing rate, the submitter or those responsible for the submission would be attempting to defraud.
6. As far as the second proposition is concerned, which deals with the question of a range of figures potentially being available to a submitter, much the same point in truth applies. What a submitter is obliged to do when putting forward a figure is to answer the question at what rate the bank in question could borrow funds in accordance with the definition. That would give rise to a single figure. It is no doubt true that in many cases that single figure could be a number of different figures within a range, because an assessment of the borrowing rate is not always a straightforward matter, particularly in an illiquid market.
7. But as I said before in my ruling on 3 July, whether or not a panel bank could legitimately take the view that a number of figures in a range could properly be submitted as the rate at which it could borrow in an appropriately sized market on the day in question, the issue is not whether the rate put forward could be justified by one method or another, but whether Mr Hayes, in seeking with others to influence the rate, was seeking to defraud by procuring the submission of rates which did not reflect any genuine view on the rate, but instead represented a rate which would advantage him and his employers in the trades that he had concluded.
As to the third rule sought, the prosecution submits that it is not seeking to import anything into the rule at all. The definition to which I have already referred requires a genuine assessment of borrowing rate and nothing else. The fact that the rule does not specifically state that a party is not to put forward a rate which is intended to benefit its trading position as opposed to its genuine assessment of borrowing rates is neither here nor there. The guidance makes it plain that that is what the rule means.
It is what the rule means. If it be a matter of law and I am inclined to think that it is the meaning of the definition is perfectly straightforward; it is an assessment of borrowing rate which is required and nothing else.
Of course as has been said on numerous occasions by many different people and by myself, I think, on a number of occasions at previous hearings in an illiquid market a bank may draw on its experience of commercial trading in order to make a genuine assessment of its borrowing rate, but the question is still: what is the borrowing rate? That is the question which falls to be answered and it is improper to answer it by reference to a rate which will advantage the bank's trading position as opposed to representing its borrowing rate.
I make none of the rulings that are sought by the defence in this case "
"24. We have carefully considered those rulings and the respective arguments advanced before us which, to a considerable extent, track the arguments advanced to the judge below. We have come to the conclusion and we have to say the clear conclusion that the judge was right and that he was right for essentially the right reasons. That being so, there is relatively little purpose in setting out at enormous length on this interlocutory application in our own words our reasoning, when really it would be a duplication of the judge's concise reasoning. Accordingly, we propose to deal with the arguments advanced before us relatively briefly
41. It is submitted that the definition contained in the BBA description of LIBOR, as we have read out above, connoted no legal duty on the submitting panel bank. Consequently, it is said, there was no unlawful act involved in the submission made in this case as allegedly induced by the conspirators.
42. In our view, and in entire agreement with the judge, it is inherent in the whole LIBOR scheme that the submitting panel bank is putting forward its genuine assessment of the proper rate. Indeed, it might be asked: how otherwise could the scheme ever work? The definition provided by the BBA does, it is true, call for a statement of opinion which involves subjective considerations; but otherwise it is by reference to what is an objective matter: the rate at which an individual contributor panel bank could borrow funds, et cetera.
43. As it seems to us, if a panel bank makes a submission then it is under an obligation to do so genuinely and honestly as representing its own assessment. Not to do so is potentially dishonest. The judge regarded that as self-evident. So do we. It serves no purpose at all to play around with the word "duty". The point is that there was an obligation ("duty", if you like) to give a genuine, to give an honest, opinion as to what the rate was. Indeed, if it were otherwise, then one can conceive that the individual submitter could simply, and perhaps even be said to be obliged to under his duties as an employee, make a submission that would further the interests of his own employing bank notwithstanding that the submission itself did not reflect his own opinion: an almost unthinkable proposition.
44. As to the third ground, that too is not sustainable. It is of course the case that various submissions by panel banks can legitimately differ. They can legitimately differ because views as to the appropriate rate can legitimately differ. But that does not displace the requirement that the submission actually made must represent the genuine opinion of the submitter. Accordingly, that the figure could be within a range provides no answer if the figure actually submitted does not represent the genuine opinion of the person submitting that figure. In truth, this point is really just a variation of the first ground and has no greater validity.
45. What the judge said was this in his further ruling:
"... whether or not a panel bank could legitimately take the view that a number of figures in a range could properly be submitted as the rate at which it could borrow in an appropriately sized market on the day in question, the issue is not whether the rate put forward could be justified by one method or another, but whether [the applicant], in seeking with others to influence the rate, was seeking to defraud by procuring the submission of rates which did not reflect any genuine view on the rate, but instead represented a rate which would advantage him and his employers in the trades that he had concluded."
46. We agree with that. We also record that in argument, Mr Hawes had great difficulty in dealing with certain examples taken from other contexts (such as valuations by estate agents) which were put to him. He was in a position to say that some of the examples put to him were perhaps somewhat extreme; but nevertheless the logic of his argument really showed that an unacceptable result would be reached if it were right.
47. The final ground is to the effect that on the BBA definition itself, the prosecution was unable, so it is said, to import a requirement to the effect that a panel bank cannot rely on its own commercial interest into its submissions. It is said in this regard that the BBA definition is not prescriptive or black letter. If that were right, then again for the reasons we have summarised above one would query how the LIBOR scheme could ever work. Indeed, we agree with Mr Hawes QC, who appeared for the Crown, that this submission in fact turns on its head the BBA definition. The definition requires the submitter to state what is there provided. There is no other indication that the submitter is free to take the bank's own commercial interest into consideration. Mr Hawes submitted that it was not specifically excluded as a matter and therefore it could be taken as included. That is an untenable argument. In effect, that comes close to saying likewise that because bad faith has not been explicitly excluded, then bad faith may be allowed: which of course is quite ridiculous.
48. Mr Hawes sought to rely on certain points illustrated in, for example, a document dated 30 July 2009, which says that a document giving guidance for submitting rates could not be prescriptive, as the fundamental basis of LIBOR is that it is a bank's own view of the markets in general and its own cost of funds in particular. As we see it, that extract is in fact against his argument. Of course submitters may have regard to considerations such as "market colour" and their knowledge of what is going on; further, the considerations of panel members thereby may differ as between each other. That reflects the subjective exercise involved: and to that extent the valuation exercise cannot be prescriptive. But as this document itself makes clear, and is obviously the case, the fundamental basis of LIBOR nevertheless is that it is the bank's own view of the markets in general and its own cost of funds in particular that counts. That accordingly emphasises that what must be submitted is the bank's own view (that is to say, its own genuine view) as to what the rate should be.
49. It seems to us that all the elaborate arguments advanced under this head come to nothing. It is self-evident, as the judge found, that a bank, in making its submission to Thomson Reuters, is not free to let its submission be coloured by considerations of how the bank may be advantaged in its own trading exposure. That simply is contrary to the definition set by the BBA and to the whole object of the exercise. Again, we note that various examples were put to Mr Hawes in argument which illustrated the potentially remarkable results that could arise if his argument were correct."
(our emphasis added)
"1. The Court of Appeal has decided that to take into account a trader's or bank's trading advantage when making a LIBOR submission is not permissible at all. Whilst there may be a range of figures, all of which could be objectively justifiable, a submitter has to submit the one figure which represents his honest opinion as to the rate at which his bank could borrow. If instead of submitting that figure the submitter puts in a different figure influenced by the perception of trading advantage, the submission is not a genuine answer to the LIBOR question and does not accord with the LIBOR definition.
2. If therefore Mr Hayes agrees with another to procure the making of a submission which is perceived to be to his trading advantage when, uninfluenced by any such consideration, the submission would have given rise to a different figure, or regardless of whether the rate would actually have been different, then Mr Hayes has agreed to procure a submission which does not accord with the LIBOR definition.
3. On this basis if the evidence shows that this is what Mr Hayes did, which in my judgment it does, though of course this a matter for the jury, the sole remaining question is whether Mr Hayes was dishonest in making such agreements."
"You know the definition well by now, I think, but it appears in the reference bundle at C/1. The rate at which an individual contributor panel bank could borrow funds, were it to do so, by asking for and then accepting interbank offers in reasonable market size just prior to 11.00 am London time. A LIBOR question to be answered was: at what rate could you borrow funds, were you to do so, by asking for and then accepting interbank offers in reasonable market size just prior to 11.00 am?
It's clear, and the courts have so decided as a matter of law, that this means that the panel bank, when making a submission to Reuters, must make a genuine, honest assessment of the rate at which it could borrow funds on the day in question without reference to its own perceived commercial advantage. In making a LIBOR submission, a panel bank is not free to let its submission be influenced at all by considerations of how the bank may be advantaged in its own trading.
Obviously if the bank is not actually borrowing funds at about that time in the tenor in question, whether for one, three or six months or whatever it may be, it will have to use information available to it to make an honest assessment of the rate at which it could borrow such funds. It's undisputed that such information may include the rates at which the bank borrowed for other lengths of time or in other currencies from banks in the London market or elsewhere, similar rates at which it borrowed from its customers which were not banks, rates at which it borrowed the day before or when it last borrowed, its own credit rating, the rate at which it lends to other banks, currency exchange, currency swaps, the rates at which derivatives trade and the like.
It must, however, be an honest assessment of its borrowing rate and not one which takes into account its trading advantage or is simply a figure designed to look as though it is such an honest estimate when it is in fact a figure designed to secure a trading advantage for a derivative trader.
So as a matter of law the courts have decided, and I direct you in the following way: first, a bank when submitting a LIBOR rate must put forward its own genuine, honest assessment of the rate at which it could borrow in the currency and tenor in question. The submission must be the bank's genuine opinion as to that rate, whether the conclusion is reached by the submitter after discussion and collective assessment or not.
Second, the fact that making such an assessment is not always easy and that the figure could be within a range of possible figures depending on the subjective judgment of the submitter, after taking account of a number of factors, is neither here nor there if the figure submitted is not genuine, honest opinion of the submitter as to the correct rate in accordance with the LIBOR definition. The submitter must arrive at one figure which represents the honest assessment of the bank as to its borrowing rate.
Third, the bank is not entitled to take into account that which would or might advance its own commercial interest at all in putting forward its LIBOR submission. It's the borrowing rate which is to be the subject of the submission and not any perceived trading advantage of the submitting bank or any other bank or person. To take such commercial matters into account would be to act in a way that was contrary to the LIBOR definition.
To answer the LIBOR question by taking into account such commercial interests of a bank would be to bring in factors which should play no part when assessing the rate at which it could borrow.
Fourth, if a submitter considered that there was a range of possible figures which could be submitted, each one of which could be justified as a subjective judgment on the information he had, and then submitted a figure within that range which was different from the figure he would have submitted, if he had not taken into account such commercial interests of the bank or of any other bank or person, that submission would not accord with the LIBOR definition, nor be a genuine, nor proper answer to the LIBOR question.
Fifth, if a submitter considered that there was a range of possible figures which could be submitted, each one of which could be justified as a subjective judgment on the information he had, and then submitted a figure within that range which took account of such commercial interests of the bank or any other bank or person, even if the submitted figure did not differ from the figure which would have been submitted without taking such commercial interests into account, the submitter would not have made a genuine assessment of the bank's borrowing rate in accordance with the LIBOR definition.
Sixth, there's no need for anyone, whether Thomson Reuters or the BBA or elsewhere, to be deceived into thinking that the rate put forward by any bank is a genuine assessment of the borrowing rate. Even if Thomson Reuters or the BBA or other banks as counterparties suspected or even knew that other banks' submissions into the LIBOR setting process were skewed or that low-balling occurred, it would make no difference to the question whether the counterparty's rights were at risk.
As I already said, it's possible that a genuine, honest assessment unaffected by consideration of its derivative trading advantage might coincide with a bank's assessment after taking its trading advantage into account, but consideration of that trading advantage is an illegitimate factor which should not be taken into account in answering the LIBOR question at all. If consideration of that advantage resulted in a different figure from that which would have been submitted without regard to it, then the figure submitted would not accord with the LIBOR definition, but even if the figure was the same it would not be an assessment of the bank's borrowing rate in accordance with the LIBOR definition because trading advantage had been taken into account.
So an agreement between individuals to seek to move a bank's submission to such a different figure for that reason would be an agreement to make or procure a submission contrary to the LIBOR definition. Also an agreement between individuals to put in a submission or procure a submission which took into account a perceived trading advantage, even if the figure did not differ from the figure which would otherwise have been submitted, would also be an agreement to make or procure a submission contrary to the LIBOR definition because that factor shouldn't be taken into account at all.
"The question for you, therefore, is whether Mr Hayes dishonestly agreed with others to seek to procure that UBS, Citi or other banks should make submissions which were not, in accordance with the LIBOR definition, their honest, true assessment of their borrowing rate or rates but the rate or rates designed to secure a trading advantage for himself or his bank.
There are two elements to consider. First, there must be an agreement or, as the prosecution allege here, several such agreements and, secondly, there must be dishonesty in making such an agreement or agreements.
It's clear, and undisputed, that Mr Hayes asked submitters at UBS and the trader submitter at Deutsche to put forward rates intended to advantage his or the bank's trading and that he asked traders at other banks, such as JP Morgan Chase, RBS, HSBC, as well as at UBS and Citi, to ask their submitters to do the same, whilst asking brokers to make some latter requests of other bank representatives, traders, submitters or trader submitters, or to influence their opinion in other ways, whether with broker run-throughs, recommendations, suggestions or spoof offers or bids.
He asked them to take account of his and his employer's commercial interests by putting in rates which would advantage his or his bank's trading."
"In order for you to be sure of Mr Hayes's guilt, you need to be sure that he was acting dishonestly. That means that you have two questions to resolve. First, was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? I will say that again.
Was what Mr Hayes agreed to do with others dishonest by the ordinary standards of reasonable and honest people? Not by the standards of the market in which he operated, if different. Not by the standards of his employers or colleagues, if different. Not by the standards of bankers or brokers in that market, if different, even if many or even all regarded it as acceptable, nor by the standards of the BBA or the FXMMC, but by the standards of reasonable, honest members of society.
There are no different standards which apply to any particular group of society, whether as a result of market ethos or practice. You must form your judgment as to what those standards are in the light of the arguments that have been put before you.
If what Mr Hayes agreed to do was not dishonest by those standards, the prosecution fails.
Second, must Mr Hayes have realised that what he agreed to do would be regarded as dishonest by those standards? It is dishonest for a person to act in a way which he knows ordinary, reasonable and honest people consider to be dishonest, even if he thinks he is justified an acting in the way he does, whether because he thinks that others in the market do it or thinks that everyone tries to do it or because his employers or others encourage him to do it or appear not to object to him doing it.
In deciding this second question, you must consider Mr Hayes's state of mind at the time of the events in question. If, after taking into account all the evidence, you're sure that the answer to both of these questions is "yes", then the element of dishonesty is proved. If you're not sure of that, the element of dishonesty is not proved and Mr Hayes is not guilty of the offences charged."
"The prosecution say that Mr Hayes confessed each and every ingredient of the offences of which he's now charged in the SOCPA interviews which he voluntarily attended. You have agreed summaries of those interviews which took place over a period of some 82 hours, in which Mr Hayes explained to investigators what he had done and named those persons with whom he had reached agreement to seek to manipulate the LIBOR rate to his trading advantage. The prosecution points out that he admitted that he was dishonest within a dishonest system, which is, you may think, the main point on which you have to reach a decision in this trial, since the documents show what Mr Hayes was requesting and what the response was of those to whom those requests were directed.
There's no dispute about the records of the interviews and what it was that Mr Hayes said at the time to the investigators. Mr Hayes's case is that everything he said in those interviews was said out of fear and a desire to avoid extradition to the United States and prosecution there where he would be separated from his family and there was the possibility of a 60-year sentence. He said that for that purpose he needed to be charged and had to admit wrongdoing.
So a word about those interviews. Before each of his interviews Mr Hayes was cautioned. He was first told that he didn't need to say anything. It was therefore his right to remain silent. However, he was also told that it might harm his defence if he did not mention when questioned something which he later relied on in court and that anything he did say might be given in evidence. Mr Hayes told the Serious Fraud Office a great deal, as can be seen from the agreed summaries you have in the interview bundle. As part of his defence before you Mr Hayes has said that he was not dishonest, that he did not appreciate that what he was doing was dishonest. The prosecution not only say that this is something that he never said to the Serious Fraud Office in his interviews, however much he sought to qualify the extent of his dishonesty as compared with other people, but that he said the very opposite and they rely on his confessions of dishonesty in those interviews. You can see what he said for yourselves.
The prosecution say that if there was any truth in this defence at all, he would have said throughout these long interviews that this was the position in the light of the factors he now relies on. He would then have said that what he did was not dishonest and that he did not appreciate at the time that what he was doing was dishonest. The fact that he did not, says the prosecution, shows that this is a fabricated defence put forward at a later date, once the risk of extradition had diminished as a result of being charged.
Mr Hayes says that he told the Serious Fraud Office what he thought he had to in order to avoid or minimise the risk of extradition, but never in fact thought that he had been dishonest in what he did.
This question of his dishonesty is a central issue in the trial and he's given you reasons why he says he confessed to being dishonest in the interviews, whether with or without qualification at different times. You will need to come to a view about this and about what he told you in evidence. Which is correct? You have to decide whether you're sure what he did was dishonest by the ordinary standards of reasonable and honest people and whether he knew that what he was doing was dishonest by those standards, whatever the standards in UBS, Citi or other banks or brokers at the time."
"That requires a little more explanation. What it says is this: the persons concerned agreed that UBS, in this example, or the other panel banks in question in the other counts, should make submissions of rates to Thomson Reuters, that is into the LIBOR setting possess, which were intended and designed to benefit Mr Hayes' trading or his bank's trading and did not represent a genuine assessment of the true rate at which UBS could borrow funds at 11.00 am on the day in question, contrary to the LIBOR definition requirements that I explained to you yesterday."
"1. Did Mr Hayes agree with any individual as named in the counts, to procure the making of a submission by a bank of a rate which was not that bank's genuine perception of its borrowing rate for the tenor in question in accordance with the LIBOR definition but was a rate which was intended to advantage Mr Hayes's trading?
If the answer is No, Mr Hayes is not guilty on that Count. If the answer is Yes, proceed to Question 2
2. Was what Mr Hayes did dishonest by the ordinary standards of reasonable and honest people?
If the answer is No, Mr Hayes is not guilty on that Count. If the answer is Yes, proceed to Question 3
3. Did Mr Hayes appreciate that what he was doing was dishonest by those standards?
If the answer is No, Mr Hayes is not guilty on that Count. If the answer is Yes, the Mr Hayes is guilty on that Count."
Mr Hayes' 2015 appeal: R v Hayes
i. The trial judge had wrongly applied the objective limb of the Ghosh test of dishonesty.
ii. The trial judge had misdirected the jury regarding the definition of dishonesty.
iii. The trial judge had been wrong to refuse to allow a defence submission that the results of an internal inquiry conducted by Tullett Prebon into the activities of their employee, Noel Cryan, should not be allowed into evidence.
iv. The trial judge had been wrong to refuse to allow into evidence the interview transcript of Andrew Walsh dated 9 July 2014.
v. The trial judge had been wrong to refuse to admit medical evidence regarding Mr Hayes's mental health at the time he had entered the SOCPA agreement.
vi. The trial judge had been wrong to refuse to allow disclosure of documentation Mr Hayes had requested and referred to in evidence; namely his "daily profit and loss accounts", his "daily risk" and his "trade blotter".
"i) it was inherent in the LIBOR scheme that the submitting panel bank was putting forward its genuine assessment of the proper rate. Although it had the subjective element inherent in an opinion, it was otherwise to be made by reference to an objective matterthe rate at which the panel bank could borrow funds etc;
ii) any submission made had to be made under an obligation that the submitter genuinely and honestly represented its assessment;
iii) assessments by different panel banks could legitimately differ, but that did not displace the obligation that the submission made must represent the genuine opinion of the submitter;
iv) where there was a range of figures, the submission made had to represent a genuine view and not a rate which would advantage the submitter; and
v) the submitting bank could not rely on or take into consideration its own commercial interests in making its assessment. The bank was not free to let its submission be coloured by considerations of how the bank might advantage its own trading exposure; that would be contrary to the definition and the whole object of the exercise."
(emphasis added)
"34. As this court, in January 2015, had determined the definition of LIBOR as a matter of law (as we have set out at [9]), it was accepted that the judge was correct in referring the jury to that. However, it was submitted that the judge had gone further than the decision of this court and wrongly included what were matters of fact in the third to sixth propositions he had set out in his directions.
35. It was submitted that save for the matters that this court had dealt with, the interpretation and the application of the LIBOR definition were matters for the jury to determine. Particular criticism was directed by way of illustration at the fifth proposition:
"Fifth, if a submitter considered that there was a range of possible figures which could be submitted, each one of which could be justified as a subjective judgment on the information he had, and then submitted a figure within that range which took account of such commercial interests of the bank or any other bank or person, if the submitted figure did not differ from the figure which would have been submitted without taking such commercial interests into account, the submitter would not have made a genuine assessment of the bank's borrowing rate in accordance with the LIBOR definition."
36. In our judgment, however, taking this as an example, the judge was doing no more than spelling out helpfully for the jury the decision of this court that it was impermissible as matter of the legal definition of LIBOR for the submitting bank's assessment to be coloured by taking into its consideration its commercial interests. As a matter of law, the submitter was not entitled to take those interests in any way into consideration.
37. On examination, it is clear that the other criticised propositions are all explanations to the jury in line with decision of this court on the legal definition of LIBOR and the obligations to which it gave rise. In the circumstances, there is no arguable merit in this ground of appeal; leave to appeal is refused."
(emphasis added)
"86. It is important to underline that the critical issue for the jury's consideration in this case was whether they believed that the appellant may have been telling the truth when he said that his admissions of dishonesty and LIBOR manipulation in his SOCPA interviews had not been genuine admissions of guilt (and, in particular, dishonesty), but had merely been an opportunistic means of avoiding extradition to the USA. That was the critical issue on which all turned and in respect of which there was not merely the interviews but the contemporaneous recordings which substantiated those interviews. Standing back from the detail, once the objective standard of dishonesty was established as the correct test for the first limb of the Ghosh direction, it is difficult to see how the application of the subjective standard to what the appellant was saying while undertaking these trades could have led to any different conclusion.
87. In the circumstances, in deference to counsel and the detailed arguments presented to us, we have dealt with each of the grounds in some detail. In the event, none have any merit and although we grant leave to appeal in relation to the first ground, the appeal is dismissed."
R v Merchant
"The approach by Cooke J was upheld on a pre-trial appeal against the ruling by Cooke J by Davis LJ in R v H... The approach by Cooke J was part implicitly and part expressly approved in the judgment of this court in R v Hayes The approach adopted by Cooke J was itself followed by Hamblen J in another LIBOR rate fixing trial [This was a reference to Hamblen J's directions in R v Read & others in which the defendants were acquitted]"
"32. At the heart of the submissions made on behalf of Mr Merchant by Mr Jonathan Crow QC in seeking to persuade us that the approach in H was wrong, was the proposition that whether a statement is true or false is a question of fact which does not depend on the belief in which or the intention with which the statement is made. It was said that so long as the answer to the LIBOR question was within a range of permissible interest rates, the answer was not false just because the submitter had adjusted the rate to take account of requests made by traders, who were hoping for an advantage to their trading position.
36. We consider, in agreement with Cooke J's initial ruling and his second ruling on 5 December 2014, and the judgment of this court in H, that the person making the LIBOR submission was under an obligation to give their honest and genuine assessment. That the submitters will give their honest and genuine assessment is implied into the LIBOR submission; long established authority (some of which was referred to in [377]-[379] of Asplin J's judgment) shows that, when an answer is given in such circumstances, it must be an honest or genuine assessment by the person making the answer.
37. It is clear from the transcript of the argument in H that the court fully considered both the meaning of the LIBOR question and the issue as to legal duty. The court clearly concluded that the operation of the LIBOR market and the answer to the LIBOR question entailed a legal duty to provide, when answering the question, an honest or genuine assessment. Indeed it is difficult to understand how the market which depended on the setting of a benchmark could have operated in any other way. As Davis LJ observed, unless when answering the question there was a legal duty to give an honest and genuine assessment the market could not operate. It followed that in making a LIBOR submission there was a legal duty to provide an honest and genuine assessment. That was the proposition which Cooke J accepted, and which was accepted without hesitation in both H and Hayes. It is hardly surprising in the circumstances that the matter was dealt with shortly by such an experienced commercial judge as Cooke J, and by the Court of Appeal in H.
38. We ourselves cannot see how a benchmark could have been set in any way other than through discharge of such an obligation when answering the question. Quite apart from the decisions in this court, it is important also to note that Hamblen J, another very experienced commercial judge, followed the same approach as Cooke J.
41. We therefore reject the submission made on behalf of Mr Merchant to the effect that the LIBOR question requires only an answer of one of the rates at which the bank could borrow and no legal duty to the effect suggested was owed. In our judgment, the judges who considered this question in the earlier cases were correct and the bank was required to give a genuine assessment. They were right in concluding that this is so obvious that it was to be implied in the return. An answer which was not a genuine assessment was a false answer. For these reasons H was rightly decided, founded as it was on well-established legal principles.
42. In these circumstances it was not necessary for the prosecution to prove that the actual submissions made by Barclays in answer to the LIBOR question were outside the permissible or acceptable range; what needed to be proved by the prosecution was that they were not genuine submissions. This is because a submission would be false, even if within the range, if it was either higher or lower than the bank believed a genuine answer would have yielded. As the evidence demonstrated, very small movements, within the permissible range, were capable of increasing profitability for the bank and reducing profits or increasing losses to the counter-parties."
(emphasis added)
"25. It is always necessary to remember that the evidence in each trial may be different, and directions appropriate for one trial might not be appropriate for another trial. It is the principled aim of every summing-up to provide succinct, focussed directions on the issues raised in the specific trial. Directions which have been appropriate in one of a series of trials being heard separately for proper reasons of case management, even if those directions have been approved on appeal, might not be appropriate in a subsequent trial in the series in which there are different issues and evidence. As has been said on numerous occasions, crafting the directions for each case is essential."
"Cooke J dealt with the issue of deliberately disregarding the proper basis as a general issue for the jury under the issue of dishonesty. This may have been because, as noted above, the central issue before Cooke J had been identified as one of dishonesty. We accept that the issue can be addressed under dishonesty and because of the focus of the issues in that case, it was right to do so. However in the present case, properly analysed, deliberately disregarding the proper basis was, as drafted in the particulars of the offence of this indictment, part of the element of the particulars of this offence of defrauding."
(emphasis added)
The Crown Court proceedings in the case against Mr Palombo and others
i. "Interbank" The first central allegation was that traders in different banks liaised with each other to arrange for their cash desks to make submissions on a concerted basis with a view to achieving a rate which benefited the various banks' economic positions. This aspect was advanced against Mr Palombo but not Mr Bermingham or Ms Bohart; and only on two occasions.
ii. "Intrabank" The second critical assertion was that traders at Barclays including Mr Palombo made requests of their cash desk for a higher or lower submission to benefit the bank's economic position. This criminality was said also to have involved Mr Bermingham and Ms Bohart.
iii. "Cash-pushing" The third limb was the prosecution's allegation that Mr Bermingham and Ms Bohart (but not Mr Palombo) agreed to make bids and/or transactions in the market in order to manipulate the actual market price.
i. The fact that Christian Bittar had pleaded guilty to the indictment, and that Philippe Moryoussef had been convicted at the first trial (in his absence), proved the existence of the conspiracy.
ii. Archived communications recovered from Barclays and other panel banks relating to EURIBOR submissions during the indictment period (all audio and written electronic communications which had been recorded for compliance purposes, including emails, Bloomberg electronic messages, transcripts of telephone and intercom calls, the submissions, and published EURIBOR rates).
i. Whilst accepting a degree of involvement in seeking to influence Barclays EURIBOR submissions on certain dates, he denied he was part of any conspiracy, that he was attempting to procure submissions that were false or misleading, or that there was any element of dishonesty in his actions.
ii. Where the EURIBOR submission was within a range of possible submissions which were legitimate (i.e were not inaccurate answers to the EURIBOR question), that it was legitimate for the submitter to have regard to the bank's commercial position in selecting a submission within that range.
iii. He had not worked in banking prior to joining Barclays as a graduate trainee. He received no specific training on applying the EURIBOR Code. He was told to learn on the job, and when he was assigned to work with Moryoussef, specifically told to learn from him. He learned that the cash desk might arrive at more than one figure which could be the "proper basis" for a submission. If there was a range of figures, it was honest for the cash desk to submit any of the figures that fell within the definition.
iv. The whole Euro swaps desk believed the same and if a member of the desk wanted a higher or lower submission, a request would be made of the cash desk on the basis that the figure was within in legitimate range. The practice was discussed and conducted in an entirely open basis.
v. Whilst he accepted his role in requests made to the cash desk, he was not aware of the interbank nature of Moryoussef's dealings, and if the appellant was said to be involved to any extent, it was as a proxy for Moryoussef. He accepted that on two occasions he had asked traders at other banks to request a particular rate. This was done at the specific direction of Moryoussef on days when Moryoussef was not present, and on such days he bore a heavy overall responsibility which caused him significant anxiety and consequently he gave not thought to the directions but simply to carry them out as instructed along with many other tasks.
"46. RULING ON THE ISSUE
I. The common intention of the parties to the Code is clear from the EURIBOR definition, as stated in Article 6.1 of the Code. The panel banks were not permitted to take into account their own trading advantage when submitting the daily rate. The common intention was that each panel bank would submit a rate which to the best of their knowledge was the rate at which euro interbank term deposits were being offered within the EMU zone by one prime bank to another at the given time. The common intention was that each bank was to make an independent and genuine assessment of the rate submitted. When putting forward its assessment of the rate there is a subjective element to the assessment, as any assessment is to an extent a matter of opinion. But otherwise the rate was to be assessed objectively as to the rate at which deposits were to be offered by one prime bank to another at the given time.
II. The common intention is also clear from the other intrinsic elements of the Code. In particular, the Preface states that EURIBOR is the new market reference rate for the Euro. The rate was to be used on the financial markets and would be relied on by third parties.
III. In these circumstances, having determined the common intention, Belgian law does not require the court to consider the extrinsic elements and there is no other reason to do so in this case.
IV. Pursuant to the principle of good faith, the Code is to be supplemented by the requirement that panel banks should not take into account trading advantage when submitting the rate.
V. I reject the defence submission that the fact that the taking into account of the bank's own trading position is not expressly prohibited means that the Code must be construed as if it were therefore permitted. There was no common intention of the parties that the panel banks were permitted to manipulate the rate for their own advantage or the advantage of others and conversely, to the disadvantage of others.
VI. I also reject the defence submission that the bank was permitted to take into account trading advantage when selecting the rate to be submitted as long as the rate was within the range of justifiable rates. If the banks were permitted to take their own interest/s into account, the rate submitted would not be objective and would not be submitted to the best of their knowledge. On the contrary, it would be subjective and would distort the EURIBOR rate.
VII. There is no need in the circumstances to apply Article 1162 of the Civil Code.
VIII. As I have ruled at paragraph III above, I am not required to hear evidence of the extrinsic elements. However, I am conscious that such evidence will be relevant, or at least some of it will be, at the trial. It is admissible if it goes to the issue of the defendant's state of mind, and in particular, to whether he or she was acting honestly. Indeed, it may very well be that the real issue in this case is whether the prosecution can prove that the defendant was dishonest, within the meaning as set out by the Court of Appeal (Criminal Division) in the case of R v Ghosh 75 Cr App R 154."
"13. It is now established that conduct of such a kind (if proved), undertaken with the requisite dishonest intent (if proved), can constitute a criminal conspiracy, under English law, where carried out with regard to the fixing of the Libor rate.
14. This is established at this level by a series of three cases in the Court of Appeal (Criminal Division): H [2015] EWCA Crim 46; Hayes [2015] EWCA Crim 1944; and Merchant & Mathew [2017] EWCA Crim 60. With regard to alleged Libor fixing the following five principles have in particular been identified (see paragraph 9 of the judgment in Hayes):
i) It was inherent in the Libor scheme that the submitting panel bank was putting forward its genuine assessment of the proper rate. Although it had the subjective element inherent in an opinion, it was otherwise to be made by reference to an objective matter the rate at which the panel bank could borrow funds etc.
ii) Any submission made had to be made under an obligation that the submitter genuinely and honestly represented its assessment.
iii) Assessments by different panel banks could legitimately differ, but that did not displace the obligation that the submission made must represent the genuine opinion of the submitter.
iv) Where there was a range of figures, the submission made had to represent a genuine view and not a rate which would advantage the submitter.
v) The submitting bank could not rely on or take into consideration its own commercial interests in making its assessment. The bank was not free to let its submission be coloured by considerations of how the bank might advantage its own trading exposure; that would be contrary to the definition and the whole object of the exercise.
15. It may be noted that in Merchant & Mathew it was sought to be said that H and Hayes were wrongly decided. In particular, it was sought to be said that so long as the relevant submission for a particular tenor was within a range of permissible rates then submitted rate within that range at the behest of traders hoping for an advantage in their trading position. This challenge failed: see paragraphs 41 and 42 of the judgment of the court delivered by the Lord Chief Justice.
16. However, that is the position under English law with regard to Libor. In the present case, the judge was concerned with Euribor: which, as we have said, was, unlike Libor, governed by the Code (in the version extant at the time) and which was itself subject to Belgian law."
In upholding Judge Gledhill's ruling and dismissing the appeal, the court said at [51]-[56] and at [63]-[64]:
"51. Mr Hunter launched a strong attack on the judge's conclusion that, approaching the matter intrinsically, the meaning of Article 6.1 was clear. In our view, however, the judge's conclusion to that effect was entirely justified.
52. On any view of Belgian law, the judge was at least entitled to look at all the provisions of the Code to assist in the determination of the meaning of Article 6.1. And it is noteworthy that the Code, among other things, stipulates:
(1) The rate is to be "the best price between banks": it is clear from the words of the Preface that hypothetical prime banks are contemplated, not any particular individual panel bank.
(2) Panel banks are required to have high ethical standards and enjoy an excellent reputation.
(3) The submission is required to quote the rate "accurately with two digits behind the comma"; and
(4) Panel banks are to refrain from any activity damaging to Euribor.
53. These points, taken both individually and cumulatively, tell strongly against the appellant's argument that an individual panel bank can have regard to its own trading advantage in making its submission.
54. The point, however, is then put beyond any real doubt by the opening words of Article 6.1 itself. The submitted rates are required to be by reference to the rates at which euro interbank term deposits are being offered "by one prime bank to another" that is, viewed objectively, again by reference to a hypothetical prime bank (not the individual panel bank). And that is then all qualified by the requirement that the quoted rate is "to the best of their knowledge". This language is specific. It is not, pace Mr Hunter, vague. And it is wholly inconsistent with the panel bank being entitled in effect to skew the submitted rate to its own trading advantage: for that would not then be putting forward its "to the best of their knowledge" assessment of what is, objectively, the best price between the best banks.
55. We think it legitimate to have regard also, if necessary, to the underpinning reasoning of the courts in the Libor cases. This is not to use those cases as extrinsic materials but simply to point out that aspects of the underpinning reasoning in those cases in principle would apply equally to Euribor. This is, essentially, because both rates (Libor and Euribor) are designed to be a comparable benchmark for the relevant markets for the day in question (as the summary of the background facts before the judge itself indicated). It is hard to conceive how such a benchmark, if to work, ever could have been intended to be permitted to be influenced by the trading advantage of individual submitting panel banks. (Indeed, as was put to Mr Hunter in argument, that prospectively would confer on panel banks a potentially great commercial advantage denied to other, non-panel, banks.) So to permit would be contrary to the whole object of the exercise. As stated by the court in H and in Hayes (see in particular at paragraph 47) unless the requirement was to give a genuine assessment of the rate the market could not operate. Those sorts of considerations surely must apply as much to Euribor as to Libor: and are also wholly consistent with the language of Article 6 of the Code, read as a whole, and with the words "to the best of their knowledge" in particular.
56. This reading thus also disposes of the appellant's central argument that to submit a rate designed to advantage the submitting bank is permissible if that submitted rate is within the (or perhaps a) justifiable range. In our judgment, one cannot get that out of the language of Article 6. Article 6.1, after all, is directed at a single rate, to be submitted (to two decimal points) to the best of the submitting bank's knowledge. The Article simply is not directed at a range of rates from which a submitting bank then may choose to suit its own advantage. In any event, what is the "justifiable range"? Is that range to be determined with or without reference to a panel bank's own trading advantage? And might not such a range itself thereafter become capable of being skewed if all panel banks are entitled on preceding occasions to submit rates to their own advantage? Again, the underpinning reasoning in Merchant & Mathew where the like point as to "range" had been specifically pursued surely has equal purchase in the Euribor context.
63. By this ground the appellant complains, as we have said, that the judge wrongly and unfairly had regard to the decisions of the English courts on the Libor cases (cited above). Not only were those cases governed by English law and did not involve the Code but in any event it was unfair and inconsistent for the judge to, in effect, take those cases into account as extraneous materials.
64. There is nothing in this point. The fact is that, in broad terms, Euribor was intended to be a benchmark, comparable to Libor, for euro denominated transactions. Mr Cameron rightly conceded that the judge was entitled to have regard to the underpinning reasoning in the Libor cases to the extent that such reasoning bore on the intrinsic meaning and intended effect of the Code (as indeed we have ourselves done in earlier parts of this judgment). Although the judge's remarks in paragraph 48 of his ruling are perhaps not ideally worded, it is plain enough that that had been his approach and that was what he was intending to indicate. That was a justified approach."
(emphasis added)
"CONSPIRACY TO DEFRAUD
To defraud or to act fraudulently is dishonestly to prejudice another's right, knowing that you have no right to do so. Prejudicing another's right includes causing economic loss or exposing another to the risk of economic loss.
Before you can convict any defendant of conspiracy to defraud, you must be sure:
3. that the defendant you are considering was a knowing party to the Conspiracy, in that he/she agreed with one or more employees of a Euribor panel bank to make or procure submissions of Euribor rates which were false or misleading in that they:
a. were intended to create an advantage to the trading positions of employees of one or more of the panel banks, and
b. deliberately disregarded the proper basis for the submission of those rates, thereby, intending that the economic interests of others may be prejudiced.
PROPER BASIS FOR THE SUMBISSION OF EURIBOR RATES
The proper basis for the submission of Euribor rates includes:
i. A submitter at a Panel Bank, when submitting a Euribor rate, must put forward his/her assessment, to the best of his/her knowledge, of the rate at which Euro interbank term deposits in the relevant tenor are being offered within the EMU zone by one prime bank to another at 11 am Brussels time.
ii. Assessments by different Panel Banks could legitimately differ, but that did not displace the obligation that the submission must represent the assessment of the submitter, to the best of his/her knowledge.
iii. Where there was a range of figures, the submission made still had to represent an assessment to the best of his/her knowledge and not a rate intended to advantage the submitter or trader or the bank at which he/she worked. The fact that the figure could be within a range provides no answer if the figure submitted does not represent the assessment to the best of the knowledge of the person submitting the figure.
iv. A submitter is not entitled to take into account that which would or might advance his/her own or another Bank's commercial interests or those of a trader in putting forward his/her Euribor submission. To take such commercial matters into account would be to act in a way that was contrary to the Euribor Code of Conduct, as it plays no part in an assessment to the best of his/her knowledge of the borrowing rate.
v. You must bear in mind that although this was the law of England and Wales during the period covered by the Indictment, and indeed has always been so, it was set out by the Court of Appeal for the first time in January 2018. This was therefore not available to the Defendants beforehand. (Please see the written Answer to Jury Note 2 JB 3 Tab A).
Deliberate Disregard
The prosecution must prove so that you are sure in the case of each defendant that he/she agreed to procure or make submissions that deliberately disregarded the proper basis for the submission of those rates.
For a defendant to "deliberately disregard" the proper basis, he/she must know what the proper basis for submissions is at that time. He/she must know that the submissions deliberately disregarded that proper basis for the submissions.
DISHONESTY
Dishonesty is a central issue in the case.
When considering the question of dishonesty, you must:
1. Ascertain the defendant's actual knowledge or belief as to the facts - that is, ascertain what the defendant genuinely knew or believed the facts to be. When considering the defendant's belief as to the facts, the reasonableness or unreasonableness of his/her belief is a factor that is relevant to the issue of whether the defendant genuinely held the belief. However, it is not an additional requirement that the belief must be reasonable. The question is whether the belief was genuinely held.
2. Having determined the defendant's state of knowledge or belief, go on to determine whether the defendant's conduct (as you have found it to be) was honest or dishonest by the standards of ordinary decent people. There are no different standards of honesty which apply to any particular profession or group in society, whether as a result of market ethos or practice. If you are sure that the defendant's conduct was dishonest, by the standards of ordinary decent people, the prosecution does not have to prove that the defendant recognised that the conduct was dishonest by those standards."
Mr Palombo's 2020 appeal: R v Bermingham and Palombo
"78. In the present case, this issue was resolved after full argument. The Court of Appeal should only revisit an earlier decision if satisfied that it was reached per incuriam in accordance with the exceptions to stare decisis identified in Young v Bristol Aeroplane Co Ltd [1944] KB 718, or because this step is necessary in the interests of justice vis-ΰ-vis an appellant because the law had been misapplied or misunderstood, and the accused had been improperly convicted (R v Taylor [1950] 2 KB 368; R v Spencer [1985] QB 771).
79. The evidence now relied on was irrelevant to the issue of the correct approach to be taken to the interpretation of the common intention of the parties to the Code. The judge had concluded, wholly sustainably, that the intention of the parties was clearly established by the Euribor definition, as set out in article 6(1). It has not been challenged on this appeal that Belgian law provides that if the common intention is clear from the contract, there is no need to rely on extraneous evidence. Accordingly, there is no suggestion that the judge or the Court of Appeal misapplied Belgian law in this regard.
80. We consider, furthermore, that the decision of this court is unassailable in upholding the judge's decision that the meaning of article 6(1) was clear (see Bittar at para 52). As Davis LJ observed, the Code required that the rate is to be "the best price between banks", and this is by reference to hypothetical prime banks and not particular individual banks. Panel banks are required to have high ethical standards and enjoy an excellent reputation. The submission by the bank has to quote the rate "accurately with two digits behind the comma". The Panel banks were expected to refrain from any activity damaging to Euribor. We agree that these points strongly indicate that individual panel banks could not have regard to the institution's own advantage in making its submission. Furthermore, this was an objective test to the best of the individual's knowledge, which further tends to exclude considerations of trading advantage (see Bittar at para 54).
81. It follows that the aspects of the evidence of Guido Ravoet and Helmut Konrad that are submitted to be determinative of this ground of appeal, to the contrary, were irrelevant on this issue. Testimony of this kind, as foreshadowed by the judge in his ruling (see para 70 above), was germane, inter alia, to the defendants' state of mind and, in particular, as to whether they acted honestly: this material potentially assisted on how the applicants interpreted the Code by throwing light, for instance, on the discussions concerning the banks' commercial interests at the design stage and during the Steering Committee meetings. Any evidence of an interpretation of the Code that tended to contradict the judge's direction in law did not create a "legal no man's land" for the jury. It was clear that the jury were obliged to follow the judge's directions, and the jury would have focussed on the evidence of Helmut Konrad (and to a markedly lesser extent to Guido Ravoet) when considering the applicants' contention that they had not knowingly and dishonestly participated in a conspiracy to disregard the proper basis for making Euribor submissions.
82. It follows that it is unarguable that the decision in Bittar was wrong in law or was decided per incuriam, or that the jury were provided with inadequate guidance by being left in a "legal no man's land". We decline to grant leave to appeal on this ground."
(emphasis added)
"94. It is regrettable that there was no authoritative guidance as to whether taking account of a submitting bank's commercial interests was unlawful before the trial judge's ruling in this case was confirmed by way of the interlocutory appeal in Bittar. It is also regrettable that the test of what constituted dishonesty changed during the proceedings. However, despite Mr Owen's eloquent and erudite submissions to the contrary, we are satisfied that the requirements of legal certainty were fully met in this case by both the indictment and the agreed legal directions on the elements of the offence given by the trial judge.
96. There was, accordingly, a close connection between the two issues relating to intention on which the prosecution needed to satisfy the jury to the criminal standard of being "sure". First, that each defendant deliberately disregarded the proper basis for the Euribor submissions when they either made or procured them. Second, that they did so dishonestly according to the reformulated Ivey test. Under the first requirement, a defendant could only deliberately disregard the proper basis if he or she knew what the proper basis was and despite this made or acted on false representations not permitted by the Code. Under the second, a jury could only be sure that the defendant had acted dishonestly if they had established (subjectively) the state of the individual's knowledge or belief as to the facts and, in the light of that, that the conduct was dishonest by the (objective) standards of ordinary decent people. Applying the first element of the Ivey test meant that the jury must have rejected the defendants' account of what they said they knew and believed as to the proper basis of making submissions to Euribor.
97. Together this set a demanding test for the prosecution to meet. In these circumstances, we are to an extent unsurprised that in the absence of authoritative guidance on the requirements of the Code a number of traders in the Euribor and Libor prosecutions have been acquitted. In this case, however, the jury must have concluded that the defendants' evidence as to their states of mind was false, and their deliberate disregard of what they knew was the proper basis for setting the rate was dishonest, applying the objective test of the standards of ordinary decent people to the defendant's state of mind. It is apparent from a number of questions the jurors asked during the trial that they were acutely aware of the difference between the state of knowledge of the defendants at the time they did the acts alleged and what is now known about the proper meaning of the Euribor Code of Conduct.
100. In the present case, both unlawfulness and dishonesty needed to be established; these ingredients were the subject of clear and comprehensive directions; and they were established to the jury's satisfaction, as reflected in their verdicts. We are satisfied that the principle of legal certainty was not impugned in this regard.
102. We do not accept that these defendants were disadvantaged by the change in the standard dishonesty directions from Ghosh to Ivey. The first limb of the Ivey test gives a substantial measure of protection from the application of an objective test unrelated to the state of mind of the defendant under consideration
104. In these circumstances there is simply no basis for a submission that the applicants were unfairly convicted because they did not realise at the relevant time that what they were doing was wrong and the conduct made them criminally liable."
Connolly and Black (US Court of Appeals for the Second Circuit)
The CCRC References
"There is a real possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black regarding the definition and proper operation of LIBOR to those which were reached in Mr Hayes's own case, and will conclude that this renders his conviction unsafe."
"There is a real possibility that the Court of Appeal will prefer the findings of the US appeal court in Connolly and Black regarding the definition and proper operation of LIBOR and by close analogy, the definition and operation of EURIBOR - to the reasoning which was used in Mr Palombo's case, and conclude that this renders his conviction unsafe."
The Grounds of Appeal
1. The judge's direction to the jury that there was an absolute legal prohibition on commercial considerations in the LIBOR setting process was wrong in law. The relevant legal obligation on the submitter was to give an "honest" and/or "genuine" assessment of the LIBOR rate: his or her honest opinion. Whether and when a submitter was in breach of that obligation was a question of fact, dependent on the state of mind of the person involved. There was no basis for a direction to a jury that a submission could be neither "genuine" nor "honest" as a matter of law, simply because the submitter had considered commercial interests in determining the borrowing rate to be submitted.
2. The judge was wrong to direct the jury that, as a consequence of the legal prohibition on commercial considerations, if the Appellant agreed to procure submissions which were intended to advantage his trading then the sole remaining issue was dishonesty. The prosecution was required to prove each element of the indicted agreement, including that the Appellant agreed to the deliberate disregard of the proper basis for the submission of LIBOR rates and as a result agreed to the submission of rates which were false or misleading. Those factual issues were always in dispute, and the jury should have been directed to consider and resolve those factual questions before the issue of dishonesty could arise.
1. The definition and proper operation of EURIBOR was, by analogy with LIBOR, correctly characterised by the Second Circuit in Connolly and Black. Insofar as the case against Mr Palombo proceeded on the basis that he had agreed with others to procure EURIBOR submissions which were "false or misleading" for the reason that 'trader-influenced' submissions were necessarily false or misleading, that approach was flawed.
2. The judge's direction to the jury that there was an absolute legal prohibition on commercial considerations in the EURIBOR submission process withdrew important matters of fact from the jury. The relevant legal obligation on the submitter was to give an assessment of the EURIBOR rate which was to the "best of their knowledge". Whether and when a submitter was in breach of that obligation was a question of fact, dependent on establishing the actual state of mind of the submitter and was not to be pre-empted and restricted by legal directions.
3. Mr Palombo's conviction is unsafe because the indicted conspiracy to defraud was advanced on a basis that is incompatible with the requirements of legal certainty at common law and/or under Article 7 of ECHR.
The scope of grounds which may be argued on a CCRC reference
"(4A) Subject to subsection (4B), where a reference under section 9, 10 or 12A is treated as an appeal against any conviction, verdict, finding or sentence, the appeal may not be on any ground which is not related to any reason given by the Commission for making the reference.
(4B) The Court of Appeal may give leave for an appeal mentioned in subsection (4A) to be on a ground relating to the conviction, verdict, finding or sentence which is not related to any reason given by the Commission for making the reference."
The doctrine of precedent
i. There is a rule of stare decisis which applies in CACD, just as in the Civil Division, which binds the court to follow a previous decision on a point of law by the CACD, or its predecessor the Court of Criminal Appeal, subject to certain exceptions: Spencer at p. 779D-F; Simpson at [26]-[27].
ii. Those exceptions include the exceptions which apply to civil appeals as identified in Young v Bristol Aeroplane Ltd [1944] KB 718, namely where (i) the previous decision conflicts with another previous decision of the CACD; or (ii) the previous decision cannot stand with a decision of the House of Lords or Supreme Court although not expressly overruled; or (iii) the previous decision was reached per incuriam: Spencer at p. 778E-F.
iii. The second of these applies where there is in effect an instruction by the Supreme Court not to follow the previous decision, albeit strictly obiter: Barton at [96], [102], [104].
iv. There is an additional flexibility in criminal cases where the liberty of the subject is in issue: in such a case the court can depart from a previous decision, where this step is necessary in the interests of justice vis a vis an appellant because the law had been misapplied or misunderstood: Taylor at 371, Gould at 68-69, Spencer at p779D-F, Bermingham and Palombo at [78]. This was described in Simpson at [38] as a residual discretion. Although initially identified as applicable only to prevent a wrongful conviction, the discretion is not so limited: Simpson at [34], Barton at [96].
v. Such residual discretion must be exercised circumspectly: Magro at [30]. It must take into account the principle that the rules as to precedent are of considerable importance because of their role in in achieving the appropriate degree of certainty as to the law, which is a foundation stone of the administration of justice and the rule of law: Simpson at [27]; Barton at [103]. In deciding whether to depart from a previous decision, the constitution of the court making that decision is a relevant factor: Simpson at [38]. Even where the court considers the previous decision wrong, it should not depart from it if it is carefully reasoned and has not overlooked any relevant argument or information: Magro at [30]-[31].
vi. One factor in favour of exercising the residual discretion is development of the law to meet contemporary needs: Simpson at [27].
Palombo ground 1
i. R v H identifying the range argument at [21] and rejecting it by endorsing the judge's reasons at [24]; and at [42], [43] and [44] referring to "the proper rate"; and at [46] approving the dichotomy drawn by Cooke J between a rate which reflected a genuine view and a rate taking account of trading advantage.
ii. R v Hayes at [9(i)]: "the proper rate by reference to an objective matter"; and at [9(iii)-(v)] referring to the range as being by different panel banks. Cooke J had addressed and rejected the range argument in his summing up:
"The word "range" was used by Mr Hayes to describe a number of potential individual figures that might represent a realistic possible answer to the LIBOR question in a thin or non-existent cash market from which he said any one figure could be submitted after taking account of trading advantage. Mr Hayes's case is that there was no one figure which did answer the LIBOR question and that any number of answers could be given as to the borrowing rate. I have already given you directions of law as to the inapplicability of that concept in relation to a proper submission in relation to the LIBOR definition. The submitter had to submit one figure only which was the best assessment of the bank's borrowing rate and had to come to that conclusion without reference to the bank's trading interest. There may have been a number of different figures that a bank could have put forward as realistic without criticism from others because they all appeared to be objectively reasonable, but the submitter had to put forward one which represented the honest best opinion of the borrowing rate."
iii. R v Merchant at [41]-[42]; the court at [42], when referring to "a permissible or acceptable range", must be referring to what is a range which subjective judgments might produce, not a range of genuine assessments by the submitter of the answer to the LIBOR question; otherwise it would not have been possible to say that "a submission would be false, even if within the range, if it was higher or lower than the bank believed a genuine answer would have yielded."
iv. R v B at [56] expressly rejecting any range; and at [54] "what is objectively the best price"; and adopting the LIBOR reasoning at [55] and [64];
v. R v Bermingham and Palombo treating R v B as correct for the reasons identified at [80]-[82], especially the reference to an "objective test" in the last sentence of [80].
Connolly and Black
"The BBA LIBOR Instruction did not ask about an actual loan. Rather, it asked a question that was "hypothetical." A panel bank was to "estimate" the interest rate at which the bank "could" borrow an amount of cash that it would typically borrow, "were it to do so by asking for and then accepting" inter-bank offers in London just before 11 a.m. ("[b]ecause of that word 'could,' this instruction is asking for a hypothetical rate," "[i]t's asking for the panel banks to make an estimate").
The district court, in denying defendants' Rule 29 motions for acquittal on the ground of lack of proof that any LIBOR submissions were false, stated that the government had no obligation to present evidence showing that DB "could not have borrowed funds at [the] rate[s it] submitted" after receiving a request for higher or lower rate submissions by derivatives traders. (emphasis in original). And in the district court's view, evidence that DB Bank "could have borrowed funds at a submitted rate would not have rendered the Defendants' statements truthful." (emphasis in original). We disagree. The precise hypothetical question to which the LIBOR submitters were responding was at what interest rate "could" DB borrow a typical amount of cash if it were to seek interbank offers and were to accept. If the rate submitted is one that the bank could request, be offered, and accept, the submission, irrespective of its motivation, would not be false."
"Yet none of the witnesses testified that DB could not have borrowed a typical amount of cash at the rate stated in any of DB's 'LIBOR submissions. And contrary to the district 'court's Rule 29 Opinion, whether "B "could" do so was the precise question to which the LIBOR submissions were to respond, and was thus the key to whether a given submission was false."
"There are two principal respects in which the trial evidence, viewed as a whole, fails to support the foundations of the government's theory of falsity, i.e., that there was (a) one true interest rate, (b) automatically generated by the pricer, (c) which was DB's LIBOR submission as generated except when there was a request from a trader. First, the testimony of the government's witnesses revealed that there were many factors other than the data automatically received by the pricer that informed DB's final LIBOR submission. Second, there were many loans available to DB, with varying interest rates; and as DB could agree to such rates, there was no one true rate that it was required to submit."
"Most importantly, the one-true-interest-rate theory was also belied by the evidence that loans may have different rates of interest simply because they involve different amounts of principal. King testified that the cash desk would "borrow money every single day" (Tr. 657), and that "[t]here were periods where I need to borrow some $20- to $25 billion a day" (id. at 269). He said that "[o]ften it costs you more to borrow more cash than less cash," and thus loans in various principal amounts could be at varying rates of interest. (Id. at 667-68.)
Similarly, Curtler testified that "there were days where there would have been a wide range of offered rates." (Id. at 2135 (emphasis added).) He said that "[i]f two counterparties were willing to lend to you, I believe I would borrow the cheapest money first"; but "[y]ou wouldn't borrow one or the other. You would borrow both . . . ." (Tr. 2181 (emphasis added).) And the BBA LIBOR Instruction does not say which of those two prices should be submitted. Curtler testified that he would have told the FBI "that for LIBOR, there are a range of numbers which could be reasonably used as a correct LIBOR rate." (Id. at 1905.)
King likewise testified that where there could be loans of the same tenor
but of different sizes, carrying different rates of interest, the BBA LIBOR Instruction provided no guidance as to which interest rate should be submitted, hence giving him leeway as to what rate to submit:
.
These varying rates are rates that DB would "ask[] for and then accept[]" (GX 1-803 (BBA LIBOR Instruction at 2, Ά A)), as opposed to "inflated interest rate[s]"--hypothesized by the government--at which DB "could" borrow to its obvious detriment (see Government brief on appeal at 47).
.
King, who believed that the "'reasonable market size'" term of the BBA LIBOR Instruction "gave [him] flexibility as to where [he] could actually submit [DB's] LIBOR ."
"Nor could a reasonable jury infer from Dr. Youle's testimony that the BBA LIBOR Instruction required DB to submit its "one best estimate" (id. at 226; see Government brief on appeal at 44-45). While Dr. Youle testified to "an understanding that [banks] would submit the one best estimate of the true borrowing costs they had" (Tr. 226), he did not link that understanding to the BBA LIBOR Instruction, which contains no similar qualification (see GX 1-803 (BBA LIBOR Instruction)). Nor did he link that understanding to language in the BBA LIBOR Instruction expressing the expectation that panel banks would "comply with the spirit of th[e] Definition or the Instructions to BBA LIBOR Contributor Banks"
"The government's argument that we should uphold the convictions on the theory that trader-influenced submissions constituted statements of "opinion[s] not honestly held" (Government brief on appeal at 32) suffers the same deficiency. While the government's three cooperating witnesses all testified that it was "wrong" to allow DB's LIBOR submissions to be influenced by existing derivatives trading positions because it gave them an "unfair advantage" over their counterparties (see,e.g., Tr. 278 (King), 765 (King), 1167 (Parietti), 1609 (Curtler), 2152 (Curtler)), not one of the witnesses testified that the submissions that were actually made were not rates at which DB "could" as defined by the BBA LIBOR Instruction--borrow."
"Although the government states that the BBA's "instructions did not allow a panel bank, when submitting its honest estimate of its borrowing costs, to consider the submission's effect on the profitability of interest rate swaps or other derivatives positions held by the bank's traders" in fact the BBA LIBOR Instruction contained no such prohibition. In contrast, the BBA did evince a concern about collusion between panel banks. The BBA LIBOR Instruction expressly stated that "Contributor Banks shall input their rate without reference to rates contributed by other Contributor Banks." But there was no similar prohibition against banks' making their LIBOR submissions with consideration of the bank's own interest-rate-sensitive derivatives."
Stare decisis
Hayes Ground 1 and Palombo Ground 2
Is this ground related to the reasons for the references?
i. R v H was an appeal on rulings as a matter of law, as was recognised at [11] noting that it was an appeal from rulings on a point of law at a preparatory hearing [under s. 9(3)(c) of the Criminal Justice act 1987] so as to found an appeal with leave pursuant to s. 9(11). It was suggested by Mr Darbishire that all that was decided in R v H was that the prosecution were entitled to advance a case, for consideration by the jury, that taking into account trading advantage rendered a submission otherwise than genuine and honest, but that is quite inconsistent with the language used.
ii. In R v Hayes, the court summarised what had been decided in R v H at [9], and went on to describe those as determining "the definition of LIBOR as a matter of law" at [34]. It reiterated at [36] that "as a matter of law" the submitter was not entitled to take into account considerations of its commercial interest.
iii. In R v Merchant at [32]-[38] the court addressed the issue as a question which fell to be determined by the court, not a jury, and addressed it by reference English case law; and, moreover, endorsing R v H and R v Hayes as correctly decided.
iv. In R v B Davis LJ said in terms at [23] that the meaning and effect of the EURIBOR Code was a matter of law for the trial judge at a criminal trial, citing R v Spens [1991] 1 WLR 624; and at [67]-[69] rejecting the submission that it fell to be addressed as an issue of fact by reference to Belgian law, on the grounds that it was a matter for the procedural law of the English criminal courts, the lex fori, which had to be applied to determine whether the question was one of fact for the jury or law for the judge; and confirming that Judge Gledhill had been right to treat the meaning of EURIBOR as a matter of law for his determination as the judge.
v. In R v Bermingham and Palombo at [80] the court again treated it as a matter of law for the court's consideration, and at [82] approved the decision in R v B as correct as a matter of law.
"The effect of these provisions is that the Court of Appeal may grant leave to appeal on grounds unrelated to any reason given by the Commission for making a reference. The exercise of this discretion is not precluded even if the grounds for making the reference prove unsuccessful. The range of factors that the court can take into account in exercising this discretion are not spelt out. Plainly, the interests of justice will be at the forefront and in considering whether to grant leave in respect of unrelated grounds the court would at a minimum require to be satisfied that the additional grounds are arguable and may undermine the safety of the convictions."
The court in Smith went on to describe this as enabling an applicant to "piggyback" grounds of appeal on those related to the CCRC's reference.
Stare decisis
The merits of the ground
"Having looked at the case law presented to us by counsel, and of course considered the extremely helpful arguments which they presented to us orally and in their cogently expressed skeleton arguments, we have come to this conclusion. We agree that the construction of documents in the general sense is a matter of fact for determination by the jury. From that generality there must of course be excluded binding agreements between one party and another and all forms of Parliamentary and local government legislation in respect of which the process of construction by the judge is indispensable.
.
As to the present case, our view is that the Code sufficiently resembles legislation as to be likewise regarded as demanding construction of its provisions by a judge. Moreover, the Code is a form of consensual agreement between affected parties with penal consequences. A further and almost overriding consideration is that if the judge's construction were not the governing influence, the inevitable danger of inconsistency in juries' findings on the meaning of the Code would arise with possibly disastrous consequences. The very policy of the law militates, in our opinion, against that result. We think the judge's ruling is correct."
Contract
Akin to legislation in a way demanding construction by the court
Inconsistency
Other arguments
"The dividing line between fact and law has been much discussed by [academic writers ever since the House of Lords decided in Cozens v Brutus [1973] AC 854 that the meaning of the word 'insulting' in a statute is a question of fact not law: see, for example, Professor Glanville Williams [1976] Crim LR 472 and 532, and D.W. Elliott, 'Brutus v Cozens; Decline and Fall' [1989] Crim LR 323. The most recent authority appears to be Reg. v Spens [1991] 1 WLR 624. In that case this court upheld a ruling of Henry J that the interpretation of the City Code on Takeovers and Mergers was a question of law for the court. But in that case, as Henry J was careful to point out, the meaning of the code was not central to the question of guilt or innocence. Here it is different. Where the central question is whether the defendant has made a representation or not, and, if so, whether it is false, then both aspects of that question are questions of fact for the jury. This is clearly so where the alleged representation is oral. It must equally be so in our judgment where the representation is contained in writing. The question is not in truth as to the meaning of the representation, still less as to the legal effect of the document. The question is simply whether a representation to the effect alleged in the indictment has been made at all. Beyond this we do not think it helpful to generalise .."
Contrary to Mr Darbishire's submission, the issue in that case did not involve construction of a binding agreement, but of a written representation. It would not have come within the exceptions identified in Spens. Although Spens was identified as involving an interpretation of a document which was not central to the case, that would not of itself have been sufficient to distinguish it. Adams, unlike the present case, was concerned with a representation whose truth or falsity depended upon construction of an instrument which was not, in accordance with the principles identified in Spens, a matter of law for the court rather than one of fact for the jury. The statement that whether a representation is false is a matter of fact for the jury was made by reference to the facts of that case, and is not to be treated as a statement of universal application. Where the truth or falsity of a statement depends upon the meaning of an instrument which, in accordance with Spens, it is for the court to determine as a matter of law, falsity is a matter for the court not the jury (although honesty will be a matter for the jury). We note that the trial judge in Adams, having rejected a submission of no case to answer and given a ruling on what the document meant as a matter of law, expressly directed the jury to consider the questions: "(1) are you satisfied that the accused knew perfectly well that he was being asked about previous disqualification?; (2) Did he deliberately withhold information about his previous disqualification". Those two questions left the issue of fact as to whether there had been deliberate deception fairly and squarely to the jury.
"What Cooke J had done (and what this court was approving [in R v Hayes at [36]]) was giving guidance to the jury on the legal effect, crafted in such a way as to be relevant to the facts of that case, of the definition of LIBOR and the legal obligation placed on the submitter. It was no more than that."
Hayes Ground 2
Does it relate to the reasons for the reference?
"1. Did Mr Hayes agree with any individual as named in the counts, to procure the making of a submission by a bank of a rate which was not that bank's genuine perception of its borrowing rate for the tenor in question in accordance with the LIBOR definition but was a rate which was intended to advantage Mr Hayes's trading?"
"That requires a little more explanation. What it says is this: the persons concerned agreed that UBS, in this example, or the other panel banks in question in the other counts, should make submissions of rates to Thomson Reuters, that is into the LIBOR setting possess, which were intended and designed to benefit Mr Hayes' trading or his bank's trading and did not represent a genuine assessment of the true rate at which UBS could borrow funds at 11.00 am on the day in question, contrary to the LIBOR definition requirements that I explained to you yesterday."
"Before addressing the specific grounds of appeal, Mr Neil Hawes QC, on behalf of the defendant, made certain introductory remarks. In particular, he emphasised that, whilst the key issue before the jury was that of dishonesty, it was not the only issue which the jury had to decide. A prior issue was whether there had been an actual agreement so as to satisfy the requirements of a charge of conspiracy."
"The prosecution particularly relied upon the fact that Mr Hayes often asked for any approach to the LIBOR submitters to be in person rather than in writing (see, for example, p54G of summing-up transcript for 24 July 2015). At 79G-81B of the summing-up on 24 July 2015, the judge summarised the evidence regarding "secretive requests", i.e. Mr Hayes's requests in documents to: "be surreptitious, not in writing, catch him on his own, not with his boss, on the way to the toilet, not in public, off line, on mobiles, not on recorded line, a quiet word, keep it super casual, sort of subtly say, don't be pushy, have a casual chat, don't effing put it on chat".
The merits of Ground 2
Palombo Ground 3
Ground 3 of Mr Palombo's appeal
i. it is not related to the reasons for the reference and there is no good reason to exercise the discretion to grant leave pursuant to s. 14(4B);
ii. we are bound by the doctrine of precedent to follow the decisions of this court in R v Barton and R v Bermingham; and
iii. it is wrong for the reasons set out in those decisions.
Conclusion