Duties of the Expert Witness
| Author | Sophie Carr,Emma Piasecki |
| Published date | 01 April 2018 |
| Date | 01 April 2018 |
| DOI | 10.1177/0022018318773162 |
| Subject Matter | Case Law |
Case Law
Duties of the Expert Witness
R v Pabon [2018] EWCA Crim 420
Keywords
Expert evidence, duties of an expert, competence, disclosure
The Appellant P, together with co-defendants Johnson, Mathew, Contogoulas, Marchant and Reich, all
employees of Barclays Bank PLC, faced a single count of conspiracy to defraud, alleging that they
dishonestly rigged The London Inter-Bank Offered Rate (LIBOR).
Johnson pleaded guilty. P, Mathew and Marchant were convicted. The jury were unable to reach
verdicts in respect of Contogoulas a nd Reich and they were subsequently re -tried (the retrial) and
acquitted.
The Serious Fraud Office (SFO) prosecuting, alleged that P as a trader (with his co-defendants)
dishonestly agreed to procure or make false or misleading LIBOR submissions in order to increase
profits or decrease losses, leading in turn to increased bonuses and enhanced status and prospects of
career advancement. P’s defence was that he acted in the commercial interests of his trading book and in
a way that would benefit his team and the bank but did not agree to procure or make submissions of rates
that were false or misleading. The central issue for the jury was therefore the question of dishonesty,
which on the basis of his conviction, they decided against P.
P appealed on the ground that fresh evidence arising out of the retrial in respect of the conduct of
Rowe, an expert witness called by the SFO, rendered his conviction unsafe.
At trial Rowe was instructed to provide an expert report ‘explaining the workings of an investment
bank, interleafing brokerage and related financial instruments and trading terms used by individuals
within these institutions’ generic to the forthcoming series of anticipated LIBOR trials. As background,
Rowe was informed that the SFO was investigating allegations that ‘between 2005 and 2010, LIBOR
was dishonestly manipulated across a number of different currencies and tenors’ (at [32]). Included
among the areas Rowe was instructed to cover were an overview of the trading floor and an explanation
of the different types of traders within an investment bank and their functions. The letter of instruction
drew specific attention to the duty of an expert ‘to give objective unbiased opinion on matters within
their expertise’, together with the relevant provisions of the Criminal Procedure Rules (CrimPR).
The defence made an application to exclude or restrict Rowe’s evidence on the ground of lack of
expertise. While the defence accepted that Rowe had some general banking experience he had never
worked as an interest rate derivatives trader, a cash desk trader or a LIBOR submitter and had no direct
knowledge of these areas, he had not worked as a trader of any kind since 2000 and, from 2005 onwards,
had acted as a professional expert witness on general banking disputes. The defence submitted he should
therefore be prevented inter alia from giving ‘inadmissible evidence as to the permissible approach to
the LIBOR-setting process, the permis sible extent of communications between tr aders and LIBOR
submitters, or whether conduct of any kind is or could be regarded as being dishonest’ (at [34]).
The submission was opposed on the basis that Rowe had demonstrated by the declaration in his
expert’s report that he understood his duty to the Court, including restricting his opinion to matters
within his expertise, he had given expert evidence in two previous LIBOR trials, apparently without
challenge to his expertise, there was no challenge from the defence to the accuracy or reliability of the
The Journal of Criminal Law
2018, Vol. 82(2) 113–116
ªThe Author(s) 2018
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DOI: 10.1177/0022018318773162
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