R v Tom Alexander William Hayes
| Jurisdiction | England & Wales |
| Judge | Lord Thomas of Cwmgiedd CJ,Sir Brian Leveson P,Gloster LJ |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWCA Crim 1944 |
| Docket Number | Case No: 2015/04027/C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 21 December 2015 |
[2015] EWCA Crim 1944
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
Mr Justice Cooke
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice
THE PRESIDENT OF QUEENS BENCH DIVISION
and
Lady Justice Gloster
Case No: 2015/04027/C3
Neil Hawes QC, Christopher Convey and Catherine Collins (instructed by Garstangs Cartwright King) for the appellant
Mukul Chawla QC, Gillian Jones and Max Baines (instructed by the Serious Fraud Office) for the respondent
Hearing dates: 2 and 3 December 2015
Lord Thomas of Cwmgiedd CJ, Sir Brian Leveson Pand
Introduction
On 3 August 2015, after a trial lasting 47 days at Southwark Crown Court before Cooke J and a jury, Tom Hayes ("the appellant") was convicted on eight counts of conspiracy to defraud in relation to the manipulation of the Japanese Yen London Interbank Offered Rate ("Yen LIBOR"). On 3 August 2015, he was sentenced to a total of 14 years imprisonment. Although indicted for numerous offences of conspiracy with others, both named and unnamed, in the event, the appellant stood trial on his own although there are further trials currently taking place, or shortly to take place, in relation to alleged LIBOR manipulation by others.
In short, the prosecution case was that, between 2006 and 2010, the appellant together with others, agreed to manipulate Yen LIBOR in order to advance his trading interests, the profits of the bank for which he worked and indirectly the rewards which he would receive in the form of bonuses and status, to the disadvantage of the counterparties to the trades. Counts 1–4 related to the appellant's period of employment between August 2006 and December 2009 at UBS Securities Japan Limited ("UBS Japan"); counts 5–8 related to the appellant's period of employment between December 2009 and December 2010 at Citigroup Global Markets Japan Inc. ("Citigroup Japan"). The counts related not only to his alleged conspiracy with persons working within UBS Japan and its associated entities (together "UBS"), and Citigroup Japan and its associated entities (together "Citigroup"), but also with employees of other banks and inter-dealer brokers involved in the fixing of Yen LIBOR.
The operation of the LIBOR Market
LIBOR itself, as its name suggests, broadly speaking connotes the interest rate which banks can charge each other on commercial loans in the London market. It has operated since 1986 and has become a benchmark for many types of financial transactions and in relation to various currencies. For each currency there are selected a number of prestigious panel banks. Each such panel bank submits its rate for the relevant period or "tenor", doing so without reference (or at least intended to do so without reference) to any other panel bank. The resulting submissions made by the various panel banks are then collated via Thomson Reuters and averaged, typically with the top quartile and bottom quartile submissions being eliminated (or "trimmed"), and the average of the remainder then taken with a view to setting the promulgated rate.
From 1998 to 2010, the operative definition of LIBOR was that published by the British Banking Association ("BBA"). That definition was:
"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".
A submission which is not a genuine assessment for the purposes of this definition can impact on the LIBOR rate actually selected.
The Prosecution and Defence Case
Based upon uncontested documentation, the prosecution contended that the appellant had attempted (successfully) to move the LIBOR rates or get others to agree to do so, to his or his bank's advantage. The result was that, in December 2012, he was indicted by the US authorities and, on 11 December, arrested in the United Kingdom. He then engaged with the prosecuting authorities pursuant to procedure set out in ss. 73–74 of the Serious Organised Crime and Police Act 2005 ("SOCPA") and, as a result, was interviewed on 31 January 2014 and 1 February 2013. On 23 March 2013, he entered into a SOCPA agreement and offered assistance in the form of what purported to be full and frank admissions made in further interviews between March and June 2013: these admissions were to the effect that he had acted as the prosecution alleged, that he had done so dishonestly and that he knew his actions were dishonest. Against the background of the documentation, the SOCPA interviews formed a substantial part of the prosecution case at trial.
After he had been charged on 18 June 2013, however, the appellant withdrew from the SOCPA process on 9 October 2013. Thereafter and at trial, the appellant contended that the many admissions of dishonesty he had made in the course of his SOCPA interviews had been made out of fear and the desire to avoid extradition to the United States. In order to be charged in the United Kingdom (and therefore avoid extradition) he had needed to admit wrongdoing.
The appellant's case at trial, in contradistinction to his extensive admissions in his interviews of dishonesty and his consciousness of that dishonesty, was that he had not been acting dishonestly by the ordinary standards of reasonable or honest people. He also submitted that, even if his conduct had been dishonest by such standards, he had never realised that what he was doing would be considered to be dishonest by honest and reasonable people. In this context, he contended that:
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) He 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) His 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 appellant did not personally realise that the selection of a figure within that range by reference to a trader's or bank's trading advantage, even though it did not accord with the LIBOR definition, nor properly answered the LIBOR question, was dishonest by the standards of ordinary, reasonable and honest people.
The ruling as to the definition of LIBOR
In the course of the preparatory hearings leading up to trial, on 5 December 2014, Cooke J had made a number of rulings in relation to submissions by the defence as to the definition and true effect of LIBOR. Those rulings were the subject of interlocutory appeals pursuant to s. 9 (11) of the Criminal Justice Act 1987. In summary, in refusing leave to appeal to the Court of Appeal, the Court (Davis LJ, Simon and Holgate JJ) said as follows ( [2015] EWCA Crim 46):
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.
The judge's direction on dishonesty
The central issue for the jury at trial was whether or not the appellant had acted dishonestly. In...
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