LIBOR rigging: Difference between revisions

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 This appeal from Tom Hayes’ conviction for “[[LIBOR]] rigging” follows the US acquittals in 2022 of Matt Connolly and Gavin Black of equivalent charges relating to the same actions, and centres on a two-limbed question:
-{{L3}}What do the LIBOR and EURIBOR fixing rules mean and, given they were found in a previous trial to mean one thing, while the appellants believed them to mean another, <li>
+{{L3}}What do the LIBOR and EURIBOR fixing rules mean and, given they were found in a previous trial to mean one thing, while the appellants believed them to mean another, and <li>
 Whose job was it to decide what they meant? Was it, in other words, a matter of fact or law?</ol>
-US courts, in acquitting Connolly and Black,<ref>{{citer|United States|Connolly and Black|2d Cir. 2022|No. 19-3806|}} </ref> had considered them to be matters of ''fact''. The English court considers contractual interpretation of contracts to be a matter of law. This seems right, though it leaves something out, which is ''what did the parties believe the rules to mean?''
+US courts, in acquitting Connolly and Black,<ref>{{citer|United States|Connolly and Black|2d Cir. 2022|No. 19-3806|}} </ref> had considered them to be matters of ''fact'': the text of the “LIBOR Definition” as filtered through the prisms of grammar, usage, subject matter expert opinion and industry practice.The English court considered it to be  question of law: if the interpretation of a (quasi) contractual term is not “a question of law,” then what is? This seems the right answer, though to a different question than the one before the court.
+====Facts and law====
+{{Drop|A|ll questions of}} law must, ultimately, draw on facts, for without them there is nothing. The meaning of a contract is beside the point without evidence there was a contract. In our times we might answer the legal question by paying attention not just to the semantic expression, but the parties’ behaviour. It is not true that a question of law can ignore facts or contradict them: it just means the job of figuring out the legal significance of facts, found by a jury, falls to a judge.
-Under the intellectual theory of criminal law, where ignorance, or misunderstanding, of the law is no excuse, that one was under a misapprehension goes only to mitigation and not liability, though — as we will see — in a market where plainly ''everyone'' shared an opinion, different from the judge’s one, about what the “LIBOR Definition” meant, this risks rendering the law “a ass”.
+It is not open to a judge, therefore, to ignore the factual setting just because the question to be answered is a legal one.
+====Crimes and contracts====
+{{Drop|N|or should we}} forget the legal question to be answered here is one of criminal law, not contract.
+Under the intellectual theory of criminal law, ignorance or misunderstanding of the law is no excuse. This is axiomatic for an effective criminal justice system, the same way “all interests in cash pass by delivery” is to finance. The system would not work if it were otherwise: unlike contract law, it has no natural equilibrium. “''Ignorantia legis non excusat''” is a moral iniquity but a logical imperative of government. It is the dilemma of the human condition that should demolish
+That one was under a misapprehension goes only to mitigation and not liability, though — as we will see — in a market where plainly ''everyone'' shared an opinion, different from the judge’s one, about what the “LIBOR Definition” meant, this risks rendering the law “a ass”.
 There is also the odd spectre of the law of [[contract]] forming the backdrop, and comprising some of the elements of a criminal allegation. This is rare. Usually, the five-oh stay well out of commercial disputes even where allegations of fraud are flying around, seeing it as a matter of civil loss between merchants perfectly able to look after themselves, and not one requiring the machinery of the state.