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A free weekly collection of criminal law links - for practitioners, law students, and anyone with an interest in the criminal justice system of England and Wales.
Curated by Sam Willis, a barrister at 5 King's Bench Walk.
News
'Supreme Court quashes IBOR convictions after finding judges’ directions unfair'
Supreme Court justices today unanimously quashed the fraud convictions of two former City traders, finding their trial judges’ directions to the juries were ‘inaccurate and unfair’. Tom Hayes and Carlo Palombo’s convictions were referred to the Court of Appeal by the Criminal Cases Review Commission in 2023 following a US Court of Appeal decision clearing two other traders convicted in 2022. Outstanding charges against Hayes in the US were also dropped. The Court of Appeal dismissed the appeals last year but certified that its decision involved a point of law of general public importance relating to the proper definition of the London Inter-Bank Offered Rate (LIBOR) and Euro Interbank Offered Rate (EURIBOR). LIBOR, which was phased out in 2023, and EURIBOR are benchmark interest rates for short-term loans between banks. The IBOR rates were calculated daily from submissions by a panel of major banks...
The Supreme Court said the CoA was wrong to reject the ‘previously uncontroversial proposition that a LIBOR or EURIBOR submission typically involved a selection from within a range of borrowing rates’. The judgment added that ‘it was when at the end of Mr Hayes’ trial the judge came to direct the jury on the law that, in my opinion, the case took a wrong turn’. It said: ‘The wording of the question certified for this appeal assumes that it was appropriate to direct the jury – as the judge did at length – about what, as a matter of law upon its proper construction, the LIBOR definition required. In my view, that assumption is mistaken’...
'New criminal offence to target violence-obsessed suspects before they attack'
A powerful new criminal offence to target suspects who are found to be preparing mass killings will ensure their plotting is taken as seriously as terrorism, the home secretary says. Yvette Cooper said the criminal justice system had to be given new tools to respond to violence-fixated individuals who are not motivated by a particular ideology, in the wake of the Southport attack last year. Terror suspects who take steps towards an attack can be jailed for life, even if their plans are not fully formed. Cooper told the BBC that the government will "close the gap" between such offenders and lone, violence-obsessed individuals by giving police the power to apprehend them long before they can act...
Speaking to BBC Radio 4's State of Terror series, which charts the response to violent extremism over the 20 years since the 7/7 bombings, Cooper said the police will get the power to prevent such individuals who do not have a clear ideology, in the same way they can with terror suspects. "There is a gap in the law around the planning of mass attacks that can be just as serious [as terrorism] in their implications for communities, their impact, the devastation that they can cause and the seriousness of the crime," she said. "We will tighten legislation so that that is taken as seriously as terrorism." Cooper said the plan - which was briefly announced in March but not fleshed out until now - was for the new law to be similar to the exceptionally serious crime of preparing for acts of terrorism...
Law Commission Recommends Sexual Offence Trial Reforms
The Law Commission has published its recommendations to the Government for reform of sexual offences cases...
- The Law Commission considers restrictions on certain types of evidence that carry the most risk of either introducing rape myths or infringing complainants’ rights to privacy and dignity.
- It recommends enhanced protection and scrutiny of requests to access complainants’ personal records including their therapy records; and new rules governing the admissibility of evidence of their sexual behaviour and of them having made a claim for criminal injuries compensation.
- Complainants would gain the right to independent legal advice and representation regarding requests to access their personal records and for applications to introduce evidence of their sexual behaviour...
- The report recommends mandatory training for all legal practitioners on myths and misconceptions, to reduce the risk of advocates introducing them into the trial process.
- The Law Commission also recommends improvements and additions to the directions which judges give to jurors to educate them about myths and misconceptions.
- In addition, it concludes that parties should be able to introduce expert evidence of behavioural responses to sexual violence in particularly complex trials.
- To effectively operationalise these recommendations, the report recommends introducing specialist sexual offences courts within existing court buildings, with improved access to measures to assist complainants with giving evidence, additional training for court staff on trauma-informed practice, and prioritised case listing.
- When judges are deciding the admissibility of evidence that a complainant has made a previous allegation of sexual offending, the sexual behaviour evidence provisions should apply where the evidence falls within the definition of “sexual behaviour”, otherwise the bad character provisions should still apply. The court must have regard, when considering admissibility under the bad character provisions, to the risks of the evidence introducing myths and misconceptions...
- At present, the legal framework requires complainants to explain their request for measures to assist them with giving evidence. Under the recommendations, complainants would have an entitlement to standard measures while they give their evidence, and would not need to justify their request...
- Ultimately, it recommends the retention of juries, concluding that there is not a sufficient evidence base to support removing juries in serious sexual offences prosecutions.
The report can be found here.
'UK to lead crackdown on cyber criminals with ransomware measures'
Hospitals, businesses, and critical services are set to be protected under measures designed to crack down on cyber criminals and safeguard the public, following public consultation on ransomware proposals. Ransomware is software used maliciously by cyber criminals to access victims’ computer systems. Systems and data can be encrypted, or data stolen, until a ransom is paid. Ransomware is estimated to cost the UK economy millions of pounds each year, with recent high-profile ransomware attacks highlighting the severe operational, financial, and even life-threatening risks. Public sector bodies and operators of critical national infrastructure, including the NHS, local councils and schools, would be banned from paying ransom demands to criminals under the measure, with nearly three quarters of consultation respondents showing support for the proposal...
Under the proposals, businesses not covered by the ban would be required to notify the government of any intent to pay a ransom. The government could then provide those businesses with advice and support, including notifying them if any such payment would risk breaking the law by sending money to sanctioned cyber criminal groups, many of whom are based in Russia. Mandatory reporting is also being developed, which would equip law enforcement with essential intelligence to hunt down perpetrators and disrupt their activities, allowing for better support for victims. Consultation responses showed strong support for a new mandatory reporting regime to better protect British organisations and industry...
'Miscarriages of justice victims given access to vital support'
- Miscarriage of justice victims will no longer have their compensation counted when applying for benefits.
- New legislation will unlock vital support for those victims, helping them back on their feet.
- Comes alongside boost to amount victims will be able to receive in compensation payments.
- Justice for the wrongly convicted vital to Government’s ambition to restore trust in the system as part of Plan for Change.
The change ensures that awarded compensation will no longer be taken into account when applying for means-tested benefits - such as Universal Credit, Pension Credit and Housing Benefit. Until now, compensation for miscarriage of justice cases pushed some people over the savings limit for claiming certain benefits, leaving them ineligible for much-needed help. To restore trust and fairness to our systems as part of the Plan for Change, the government is acting to ensure victims receive the support they deserve to rebuild their lives. It comes after a campaign for rule changes to unlock benefit entitlement for those who have received miscarriage of justice compensation payments...
Cases
R v Hayes & Palombo [2025] UKSC 29
The history of these two cases raises concerns about the effectiveness of the criminal appeal system in England and Wales in confronting legal error. The two appellants, Tom Hayes and Carlo Palombo, were each convicted after a trial in, respectively, August 2015 and March 2019 of conspiracy to defraud. The charges against them related to attempts to influence key benchmark rates of interest used in financial markets: in Mr Hayes' case, the London Inter-bank Offered Rate ("LIBOR"); and in Mr Palombo's case, the Euro Inter-bank Offered Rate ("EURIBOR")...
... It was wrong for the judge to direct the jury that, if the submitter took any account of the commercial interests of the bank or a trader, the rate submitted was for that reason not a genuine or honest answer to the question posed by the definitions as a matter of law. The law could not dictate whether or not the answer given represented the submitter's genuine opinion. The jury might well have regarded the fact that a submission was influenced by trading advantage as supporting an inference that the figure submitted was not in truth a rate at which, in the submitter's opinion, the bank, or a prime bank, could borrow money at the relevant time. But it was for the jury to decide whether to draw that inference, and not for the judge to tell them they must do so because the law required it.
In each case there was ample evidence on which a jury, properly directed, could have found the appellant guilty of conspiracy to defraud. But the jury was not properly directed. Mr Hayes admitted that, when there was a range of potential borrowing rates, he had tried to influence submitters to put forward numbers within that range which would advantage his trading; but he denied that he had attempted or conspired to induce submitters to put forward rates which did not represent their genuine opinion. The effect of the judge's directions was to remove consideration of that defence from the jury by instructing them that, if any consideration had been given to trading advantage, the rate submitted could not as a matter of law be a genuine or honest assessment of the bank's borrowing rate. That misdirection undermined the fairness of the trial. In Mr Palombo's case, the jury directions given are not open to the same degree of criticism; but they still involved the same essential error of treating this question of fact as if it were a matter of law. The errors in that case too were sufficiently material to make the conviction unsafe. Accordingly, both appeals should be allowed...
...The Court of Appeal did not explain why it was helpful to spell out to the jury what the court had decided about the construction of the LIBOR definition as a matter of law. They did not engage with the argument made by counsel for Mr Hayes that whether a submission was a genuine or honest assessment was a matter of fact which should have been for the jury to decide and should not have been the subject of legal directions from the judge at all. Nor, in my view, was their benign characterisation of what the judge was doing in giving the criticised directions realistic. The judge did much more than tell the jury what the Court of Appeal had held in R v H was the legal effect of the definition of LIBOR. Cooke J repeatedly equated the question whether a submission would "accord with the LIBOR definition" as a matter of law with the question whether it would represent a "genuine assessment" or "honest assessment" of the bank's borrowing rate, which was a question of fact. And he repeatedly conveyed the erroneous message that, if the submitting bank's commercial interests had been taken into consideration in any way, then it followed as a matter of law that the submission could not be a genuine or honest opinion of the bank's borrowing rate...