LONDON - Two former traders convicted and jailed over IBOR manipulation have been given the go ahead to continue their fight to clear their names at the UK’s highest court.
The cases of Tom Hayes and Carlo Palombo were referred to the Court of Appeal by the Criminal Case Review Commission (CCRC), and the Court dismissed their appeals on all grounds in April.
In an announcement on Tuesday, three senior judges certified that a point of law of general public importance was involved in their decision.
The certified point of law of general public importance focuses on the proper construction of the LIBOR and EURIBOR definitions.
When referring the cases to the Court of Appeal, the Criminal Cases Review Commission (CCRC) concluded there was a “real possibility” the Court would conclude their convictions were unsafe, following a ruling by the US appeal court regarding the definition and proper operation of IBOR.
Tom, 44, was found guilty in 2015 of multiple charges of conspiracy to defraud by “rigging” the London Inter-Bank Offered Rate (LIBOR).
He was jailed for 14 years, later reduced to 11 on appeal, and served five-and-a-half years mostly in high-security prisons before being released in January 2021.
Tom lost his job, his marriage and his incarceration took a serious toll on his mental and physical health.
Carlo, 45, was found guilty of conspiracy to defraud by rigging the Euro Interbank Offered Rate (EURIBOR) in March 2019 and was jailed for four years.
Judges have previously ruled that banks were prohibited from taking into account commercial considerations when making IBOR submissions and that if they did so, those submissions were automatically "false".
However, the US second circuit Court of Appeal found there was no such rule. Following the decision of the US Court of appeal, all US IBOR cases have now been overturned or dropped.
The UK is now the only country in which this conduct is considered a crime.
In a statement after the Court of Appeal’s announcement, Tom said: "I’m delighted that, at the fifth attempt the court has finally and correctly certified this as a point of law of public importance.
"The IBOR traders have long insisted that submitting numerically truthful values was truthful, genuine and honest. Now the Supreme Court will have the opportunity to decide if the presence of commercial consideration made those truthful rates criminal.
"It’s time for the UK legal system to now align with the rest of the world and for these miscarriages of justice to be corrected."
Carlo said: “I am delighted and relieved that the Court of Appeal has referred our case to the Supreme Court and hope that finally the wrong that we have both experienced will be corrected”
Karen Todner, Tom's solicitor, said: "The Court of Appeal has recognised the significance of the decisions in the IBOR cases and I am delighted to say they have certified a point of public importance to be considered by the Supreme Court.
"We must now apply to the Supreme Court for permission for the appeal to be heard. Tom’s legal team of myself, Adrian Darbishire KC and Tom Doble will continue to do everything in our power to overturn this miscarriage of justice."
Ben Rose, Founding Partner of Hickman & Rose, who together with Tim Owen KC, Katherine Hardcastle and Tim James Mathews, represents Carlo, said: “I’m glad that we will be able to apply to the Supreme Court for permission to appeal in Carlo and Tom’s cases.
"The Court of Appeal has ruled on the construction of LIBOR and EURIBOR five times now, but this is the first time that the Court has certified that a point of law of general public importance is involved, thereby recognising that the Supreme Court may wish to consider it.
"I sincerely hope that the Supreme Court will take up this opportunity.”
Lawyers for Tom and Carlo argued in March that the Court of Appeal should prefer the legal approach adopted by the US appeal court and overturn their convictions.
