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Pabon & Ors, R. v
Factual and Procedural Background
The Court of Appeal Criminal Division considered five Criminal Cases Review Commission references concerning convictions arising from LIBOR and EURIBOR rate-setting prosecutions. The references followed unsuccessful earlier appeal proceedings. [1]
Appellants 1–3 were convicted of conspiracy to defraud following a LIBOR trial in the Crown Court at The City. Appellants 4 and 5 were convicted in EURIBOR proceedings. [2][3][4]
The prosecution authority did not oppose the appeals and indicated that there would be no retrials if the convictions were quashed. [1] The court nevertheless emphasised its constitutional duty independently to determine whether the convictions were safe. [1]
Legal Issues Presented
- Whether the convictions were unsafe because the trial judges wrongly directed juries that the legal meaning of the relevant rate-setting documents determined factual questions concerning the appellants’ genuine opinions and rate submissions. [5][6]
- Whether the first EURIBOR trial involving Appellant 4 was materially distinguishable from the later EURIBOR trial involving Appellant 5. [7][8]
Arguments of the Parties
Appellants’ Arguments
- The appellants relied on the common ground that, for the reasons given by the Supreme Court in Hayes and Palombo, the prosecution case and jury directions were wrong in law and rendered the convictions unsafe. [9][6]
Prosecution Authority’s Position
- The prosecution authority did not oppose the appeals and accepted that there would be no retrials if the convictions were quashed. [1]
- Counsel for Appellant 4 identified differences between the first and second EURIBOR trials, relying on matters discussed by the Supreme Court in paragraphs 227–233 of its judgment. [10][11]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Tom Hayes and R v Carlo Palombo [2025] UKSC 29; [2025] 2 Cr App R 21 (“Hayes and Palombo”) | A judge must not determine as a matter of law a factual question concerning whether a rate submission represented the submitter’s genuine opinion; that question is for the jury. [12][13] | The Court of Appeal held that the same legal error had been replicated in all five appeals and therefore rendered the convictions unsafe. [14][15] |
| R v Merchant and Mathew [2017] EWCA Crim 60 | The earlier appellate history concerning the LIBOR convictions and applications for leave to appeal. | The decision was identified as part of the procedural history of Appellants 2 and 3. [16][17] |
| R v H [2015] EWCA Crim 46 | An interlocutory appeal concerning a pre-trial ruling in the earlier prosecution that led to the disputed jury directions. | The Court explained that the decision was later understood to affect an issue that had not been before the appellate court, contributing to the erroneous directions. [18] |
| R v Farr and Others | A later trial in which directions were modelled on the earlier directions. | The defendants were acquitted, so the directions were not considered by the Court of Appeal. [19] |
| [2015] EWCA Crim 1944; [2018] 1 Cr App R 10 | The appellate decision considering the directions given in the earlier trial. | The decision was available to the trial judge before he adopted substantially the same directions in the LIBOR trial. [20][21] |
Court’s Reasoning and Analysis
The Supreme Court had held that it was wrong to direct a jury that consideration of a bank’s or trader’s commercial interests automatically meant that a rate submission was not genuine or honest. Such considerations could support an inference, but the inference was for the jury rather than the judge. [22]
The Court of Appeal characterised the error as removing a factual issue from the jury by treating it as determined by a legal ruling. [5]
In the LIBOR proceedings, the trial judge adopted directions derived from earlier directions that had subsequently been found legally defective. The Supreme Court concluded that the relevant question was how the individuals understood the rate-setting definition, which was a matter of fact rather than law. [20][23]
In the EURIBOR proceedings, the court accepted that the earlier ruling construing the EURIBOR document under Belgian law might have been correct. The error was not the construction of the document, but withdrawing the resulting factual issue from the jury. [24]
Although the directions in the second EURIBOR trial were varied and the error was less obvious, the fundamental defect remained. The court therefore considered that the directions in both EURIBOR trials were conceptually identical in the material respect. [25][26]
The court rejected the submission that Appellant 4’s first EURIBOR trial was materially different. The relevant defects in the directions were present in both trials, and the differences did not affect the safety of the conviction. [10][8]
Holding and Implications
All five convictions were quashed. The court accepted the common ground of appeal because the convictions were rendered unsafe by the same series of legal errors identified by the Supreme Court. [27][28]
Outstanding financial consequences were adjourned for further consideration, and an arrest warrant relating to Appellant 4 was ordered to be withdrawn. [29][3]
The decision applied the Supreme Court’s existing reasoning to these convictions. No new precedent was set.
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