Factual and Procedural Background
The Appellant, a 39-year-old employee of Company A, alongside several co-defendants who were also employees of Company A, faced a single count of conspiracy to defraud by allegedly dishonestly rigging the London Interbank Offered Rate ("LIBOR") for US dollar transactions between 1 June 2005 and 1 September 2007. The indictment alleged that the Appellant and co-defendants conspired to procure or make false or misleading rate submissions to the LIBOR setting process to advantage their trading positions, thereby prejudicing others economically.
On 29 June 2016, the Appellant was convicted by a majority jury verdict and sentenced on 7 July 2016 to 2 years and 9 months' imprisonment. Co-defendants Mathew and Merchant were also convicted and sentenced, with varying outcomes on appeal. Other co-defendants pleaded guilty or were acquitted after retrial. The Appellant's initial application for leave to appeal was refused, but he sought to renew it out of time, relying on fresh evidence emerging from the retrial of co-defendants, particularly focusing on the conduct of an expert witness called by the prosecution.
LIBOR is a benchmark interest rate based on submissions from a panel of banks, including Company A. The case concerned derivative trading linked to LIBOR, where small movements in the rate could significantly affect profits and losses. The Appellant was a derivatives trader who developed a model to price the US dollar short-term interest rate market. The prosecution alleged that traders requested LIBOR submitters to provide false rates to benefit trading positions, while the Appellant denied dishonesty, claiming his requests were commercially justified and consistent with market practices.
The central issue for the jury was whether the Appellant dishonestly agreed to procure false LIBOR submissions. The jury found against the Appellant on dishonesty, resulting in conviction. The Appellant later sought to appeal based on the conduct and evidence of the expert witness, whose failings were exposed during the retrial of co-defendants.
Legal Issues Presented
- Whether the conduct and evidence of the prosecution's expert witness complied with the duties owed to the Court, specifically regarding staying within the area of expertise.
- Whether the Appellant's conviction was unsafe in light of fresh evidence relating to the expert witness's conduct and credibility.
Arguments of the Parties
Appellant's Arguments
- The expert witness's conduct fell far below acceptable standards, including signing declarations falsely, failing to explain how opinions were reached, consulting undisclosed advisors, disregarding judicial directions, and giving evidence outside his expertise.
- The fresh material arising from the retrial would have allowed for devastating cross-examination, which was not possible at the original trial due to lack of disclosure.
- The expert's failings undermined the integrity of the trial process, rendering the Appellant's conviction unsafe.
Respondent's Arguments
- The prosecution accepted the expert witness had failings but argued his evidence largely concerned uncontroversial background matters and did not affect the key issue of the Appellant's dishonesty.
- Other witnesses with relevant expertise were available at trial to address detailed trading and LIBOR setting matters.
- The outcome of the retrial and the expert's failings did not cast doubt on the safety of the Appellant's conviction, which should therefore be dismissed.
- The Appellant had not identified any fundamental error in the expert's evidence relevant to the key issue at trial.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Merchant [2017] EWCA Crim 60 |
Confirmed the legal requirement that LIBOR submissions be genuine estimates of borrowing rates. |
Used to affirm the correctness of the trial Judge's direction that submissions must be genuine, supporting the legal framework of the case. |
| R v Ghosh [1982] QB 1053 |
Established a two-limb test for dishonesty, including a subjective element. |
The jury was directed under this test, but the Court noted that the test has since been disapproved. |
| Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67 |
Revised the test for dishonesty, removing the subjective limb of the Ghosh test. |
The Court acknowledged the current law supersedes Ghosh, noting the jury was directed on a more favourable basis to the Appellant than would apply today. |
| R v Gohil [2018] EWCA Crim 140 |
Clarified the test for disclosure is not dependent on ultimate success in proceedings. |
Applied to reject the prosecution's resistance to disclosure of fresh material. |
| R v Harris [2005] EWCA Crim 1980 |
Set out duties and standards expected of expert witnesses in criminal cases. |
Supported the Court's analysis of the expert witness's obligations and failings. |
| R v B (T) [2006] EWCA Crim 417 |
Further guidance on expert witness duties and disclosure. |
Referenced in explaining the expert witness framework. |
| R v Robb [1991] 93 Cr App R 161 |
Test for establishing expertise and risks of permitting tenuous expert evidence. |
Applied to assess the expert's qualifications and the dangers of allowing evidence beyond expertise. |
| R v Pendleton [2001] UKHL 66 |
Approach to appeals based on fresh evidence and the test for safety of conviction. |
Provided the framework for assessing whether fresh evidence renders a conviction unsafe. |
| Stafford v Director of Public Prosecutions [1974] AC 878 |
Principles on appellate review of fresh evidence and jury verdicts. |
Endorsed as part of the test for safety of conviction. |
| Dial v Trinidad and Tobago [2005] UKPC 4 |
Clarified the Court of Appeal's role in evaluating fresh evidence on appeal. |
Applied to confirm the Court's approach to assessing the impact of fresh evidence on conviction safety. |
| R v Hakala [2002] EWCA Crim 730 |
Emphasized the sole question on appeal is the safety of the conviction. |
Supported the Court's focus on the safety test rather than re-weighing guilt. |
| Burridge v R [2010] EWCA Crim 2847 |
Considered the jury impact test as a tool but not determinative in safety of conviction. |
Used to validate the Court's use of the jury impact question as a secondary check. |
Court's Reasoning and Analysis
The Court began by examining the conduct and evidence of the prosecution's expert witness, who was instructed to explain banking and trading concepts relevant to the case. The expert had significant failings: he provided evidence outside his area of expertise, failed to disclose the involvement of others in preparing his report, disregarded judicial instructions not to discuss evidence while giving it, and signed declarations falsely or recklessly. These failings were exposed during the retrial of co-defendants, where the expert was subjected to damaging cross-examination based on fresh disclosed material.
The Court acknowledged that the expert did have general expertise in banking and finance and that much of his evidence was uncontroversial background. However, his excursions beyond his expertise, especially concerning short-term interest rate trading (STIR), were improper and undermined the integrity of the process.
Turning to the safety of the Appellant's conviction, the Court applied the statutory test that an appeal must be allowed if the conviction is unsafe. The Court considered the fresh evidence in the context of the whole trial and the key issue of dishonesty. The Appellant had admitted seeking to influence LIBOR rates to benefit his trading book, and the prosecution had a strong case supported by damaging email communications.
The Court found that the expert's evidence did not materially affect the critical issue of dishonesty. Other witnesses with relevant expertise were available, and the trial Judge had excluded the expert's inadmissible opinions. The Court concluded that even if the fresh evidence had been available at trial, it was unlikely to have changed the jury's verdict. The outcome of the retrial and the expert's failings did not undermine the safety of the Appellant's conviction.
Accordingly, the Court dismissed the appeal, emphasizing that the expert's failings, while serious, did not render the conviction unsafe in the particular factual and evidential context of this case.
Holding and Implications
The Court's final decision was to DISMISS THE APPEAL.
The Appellant's conviction was held to be safe despite the expert witness's failings. The direct consequence is that the Appellant's conviction and sentence stand. The Court noted no new legal precedent was established but highlighted the importance of expert witnesses adhering strictly to their duties. The case serves as a cautionary reminder to prosecuting authorities to ensure that expert witnesses are suitably qualified and comply fully with their obligations under the Criminal Procedure Rules.