LIBOR rigging: Difference between revisions

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 ====“A conspiracy to defraud”====
-Hayes and Palombo were indicted on the ancient [[common law]] offence of “conspiracy to defraud”, rather than under the Fraud Act of 2006, an act passed following a Law Commission report which recommended the common law offence be abolished, considering it to be “unfairly uncertain, and wide enough to have the potential to catch behaviour that should not be criminal”.<ref>{{plainlink|https://www.gov.uk/guidance/use-of-the-common-law-offence-of-conspiracy-to-defraud--6|Attorney General guidance to the legal profession on use of conspiracy to defraud}}, November 2012.</ref> The common law offence was retained “for the time being” on a “just in case we’ve missed something” basis.<ref>The government decided to retain it for the meantime, but accepted the case for considering repeal in the longer term. Whether there is a continuing need for retention of the common law offence is one of the issues that will be addressed in the Home Office review of the operation of the Fraud Act 2006, which will take place 3 years after its implementation. (op cit)</ref>
+Hayes and Palombo were indicted on the ancient [[common law]] offence of “conspiracy to defraud”, rather than under the Fraud Act of 2006. Criminal law minutiae, perhaps, but that act followed a Law Commission report which recommended ''abolishing'' “conspiracy to defraud”,  because it is “unfairly uncertain, and wide enough to have the potential to catch behaviour that should not be criminal”.<ref>{{plainlink|https://www.gov.uk/guidance/use-of-the-common-law-offence-of-conspiracy-to-defraud--6|Attorney General guidance to the legal profession on use of conspiracy to defraud}}, November 2012. “The government decided to retain it for the meantime, but accepted the case for considering repeal in the longer term. Whether there is a continuing need for retention of the common law offence is one of the issues that will be addressed in the Home Office review of the operation of the Fraud Act 2006, which will take place 3 years after its implementation.” </ref>
 In any case, the elements of the common law offence are, more or less:
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 These are the legal principles. Their application, it seems to this old commercial hack, demands marrying the facts — who did what to whom — to their specific legal meanings as “terms of legal art”.
-Was Hayes ''dishonest'' when he submitted his LIBOR rates? That, in turn, came down to whether he “deliberately disregarded the proper basis for the submission of those rates”, intending thereby to prejudice the economic interests of others.
+The crux of these was Hayes ''dishonest'' when he submitted his LIBOR rates? That, in turn, came down to whether he “deliberately disregarded the ''proper basis'' for the submission of those rates”, intending thereby to prejudice the economic interests of others.
-Whether the submissions were dishonest came down, so thought the court, to whether they conformed to the “Instructions to BBA LIBOR Contributor Banks” in the BBA’s “The BBA Libor Fixing – Definition” document. The critical part of the instructions — what the court calls the “LIBOR Definition” ran as follows:
+That came down, so thought the court, to whether Hayes’ submission conformed to the BBA’s “Instructions to BBA LIBOR Contributor Banks”. The critical part of the instructions — what the court called the “LIBOR Definition” ran as follows:
 {{Quote|“An individual BBA LIBOR Contributor Panel Bank will contribute '''''the rate at which it could borrow funds''''', were it to do so by asking for and then accepting inter-bank offers in reasonable market size just prior to 1100.”}}
 ====Facts and law====
 {{drop|N|ow, US Courts}}, in acquitting Connolly and Black,<ref>{{citer|United States|Connolly and Black|2d Cir. 2022|No. 19-3806|}}</ref> had considered the question before them to be one of ''fact'': the text of the “LIBOR Definition” as filtered through the prisms of grammar, usage, subject matter expert opinion and industry practice. This question of law — whether it was dishonest — depended a great deal on matters of ''fact'' — what did Hayes believe the LIBOR Definition required, and if that seemed far-fetched, what a reasonable person reading the definition would think it required.