R v Hayes

On the defendants’ further appeals—

Held, allowing the appeals, (1) that, on an appeal to the Supreme Court from a decision of the Court of Appeal on a reference by the Criminal Cases Review Commission made under section 9 of the Criminal Appeal Act 1995, the Supreme Court was empowered by section 35(3) of the Criminal Appeal Act 1968 to exercise any powers of the Court of Appeal, including its power under section 14(4B) of the 1995 Act to give leave for the appeal to be on a ground relating to the conviction which was not related to any reason given by the Commission for making the reference to the Court of Appeal, or to remit the case to that court; that, therefore, the fact that the Court of Appeal in the present cases had refused to grant leave under section 14(4B) of the 1995 Act for the defendants’ appeals to be on the grounds put forward by the defendants, on the basis that they were not related to the reasons given by the Commission for making the reference, did not preclude the Supreme Court from entertaining those grounds, if the court thought it right to do so; and that, now that the appeals were before the Supreme Court, in so far as the grounds advanced had merit, the court should consider them, particularly as they all arose directly out of or were related to the certified question and there could be no reason to remit the case to the Court of Appeal, which had considered most of the issues raised several times already, including in the decision now under appeal (post, paras 45–46).

(2) That the question posed by the LIBOR and EURIBOR definitions, which required a bank to submit the rate at which that bank (in the case of LIBOR) or a prime bank (in the case of EURIBOR) could borrow money at the time of the submission, involved a qualitative assessment of various data sources and was a matter of subjective opinion rather than empirical fact; that, thus, whether a submission was genuine or honest did not turn on how a court construed the LIBOR and EURIBOR definitions but turned on the state of mind of the submitter and whether the stated opinion of the borrowing rate was one which that person actually held, which was a question of fact which, in a criminal trial, was the province of the jury and not the judge; that, therefore, it had been wrong for the judge in each case to direct the jury that, if the submitter took any account of the commercial interests of the bank or a trader, the rate submitted was for that reason not a genuine or honest answer to the question posed by the definitions as a matter of law, since the law could not dictate whether or not the answer given represented the submitter’s genuine opinion; that the jury might well have regarded the fact that a submission was influenced by trading advantage as supporting an inference that the figure submitted was not in truth a rate at which, in the submitter’s opinion, the bank, or a prime bank, could borrow money at the relevant time, but it was for the jury to decide whether to draw that inference, and not for the judge to tell them they had to do so because the law required it; and that, accordingly, the defendants’ convictions were unsafe and would be quashed (post, paras 7–9, 21–22, 25, 69–74, 120–135, 159–162, 207, 212–214, 219–235).

R v Adams [1994] RTR 220, CA considered.

Per curiam. (i) Section 33(2) of the 1968 Act makes it a condition of granting permission to appeal to the Supreme Court that the Court of Appeal has certified that a point of law of general public importance is involved in the decision and that it appears to the Court of Appeal or the Supreme Court that the point is one which the Supreme Court ought to consider. But neither section 33 nor any other statutory provision confines the Supreme Court, if permission to appeal is granted, to considering only the certified point of law. The appeal is from the decision of the Court of Appeal, not just from its conclusion on the certified point; and if it is necessary to consider other points as well to dispose of the appeal and decide whether the Court of Appeal’s decision is correct, the Supreme Court can do so. Whether it is open to an appellant to raise matters wholly unrelated to the question certified will always be a matter for the exercise of the court’s discretion (post, paras 42–43).

Attorney General for Northern Ireland v Gallagher [1963] AC 349, HL(NI) and R v Jones (Margaret) [2007] 1 AC 136, HL(E) applied.

(ii) The uncertain ambit of the offence and wide range of intended conduct that can be the subject of a charge of conspiracy to defraud make it all the more essential, when the offence is charged, to specify the content of the alleged agreement with particularity. Both the defendant and the court need to know with reasonable certainty and clarity what the prosecution must prove, and the jury must find, to convict (post, para 50).

R v Landy [1981] 1 WLR 355, CA applied.

Decision of the Court of Appeal [2024] EWCA Crim 304; [2024] 2 Cr App R 6 reversed.