Frustration

October and November have been interesting months.

October

In early October Tom turned 37 and Joshua turned 5.  At their joint birthday party prison visit, Joshua beat Tom in a fiercely competitive birthday game of “Frustration”, thrashed out in the visitors centre at HMP Lowdham Grange.

Joshua celebrated with a large bag of Maltesers, while Tom sulked with a cup of tea.  A rematch is scheduled for Boxing Day 2016.

On a more serious note, in late October, David Green QC, Director of the Serious Fraud Office, gave evidence before the Justice Select Committee regarding the work of the SFO.  We reviewed the evidence that the Director gave and realised that some of it was less-than-accurate so far as Tom’s case is concerned.  We are of the view that Parliament, the press and the public have been severely misled regarding the LIBOR cases, and we are committed to rectifying this.  To that end,  we responded to the Director, both publicly and privately, to explain our concerns.  In addition, we have written to the relevant MPs to highlight the inaccurate evidence and to further explain the issues arising in these difficult and technical cases.

November

November has been interesting in a different and rather more upsetting way. Last week, evidence emerged that the Bank of England discussed inaccurately low LIBOR rates (i.e. lowballing) with top management of Britain’s largest banks.  Despite its obvious relevance to Tom’s case, the SFO did not disclose this evidence to Tom’s defence team.

The relevant email reads as follows:

“Please only distribute on a strictly controlled basis …BoE made it abundantly clear that if any details of our ongoing Bank to bank discussions got into the press or the public domain, it would be us and not them who regretted it!…Along with other senior market heads at our fellow clearers (eg Jerry Del Missier from Barcap, Stuart Gulliver HSBC, Lindsay Mackay HBOS, Brian Crowe RBS) I was asked to a meeting with Paul Tucker …there was considerable debate about the effects on Libor (this is on the issue of STG term market). We (the banks) agreed that current Libors do not reflect where we can borrow decent size and as such there was a case for us fixing Libors considerably higher (6.75% was referenced across the curve) …and the effect this would have on the real economy …”.

In 2012, as the LIBOR scandal broke, top Bank of England officials told Members of Parliament that they knew nothing of LIBOR “manipulation”.

Tom has always maintained that lowballing was done at the behest of senior management and the Bank of England.  Tom has also always maintained that he only ever asked for accurate LIBOR rates, unlike those involved in lowballing.  The trial judge retrospectively and completely erroneously criminalised conversations about accurate LIBOR rates between a trader and a LIBOR submitter, but somehow tried to justify lowballing when sentencing Tom.  Are we all equal before the law?

And so now we must ask: what else is the SFO keeping from the LIBOR defendants?   Has the SFO acted unlawfully in suppressing evidence in order to obtain convictions at any cost?  The truth has a habit of coming out, so time will tell.

Quite separately, on the East Coast of the USA, in a New York Federal court house, two ex-Rabobank traders were sentenced for LIBOR “manipulation”.  One trader (with deeply saddening personal circumstances) was sentenced to 3 months, and the other, Paul Robson, escaped a prison sentence altogether.  Back in 2014, Mr Robson wrote to his local MP in the UK after he had been charged by the US Government; he told his MP that he either faced a tougher sentence if he fought extradition or the possibility of pleading guilty to “charges I simply did not commit“.  Mr Robson later pled guilty in the US to those same charges, and co-operated against two other Rabobank defendants, who were ultimately convicted (but thankfully remain free on bail pending appeal).

As we hit the middle of November 2016, Tom Hayes sits, freezing cold, in his 5m x 3m cell wondering what on earth the trial judge was thinking when he sentenced him to 14 years for something that was not a crime at the time and which was the subject of (1) a bank-issued instruction sheet; and (2) dedicated IT systems that were never disclosed to the defence but which have subsequently popped up post-trial.  And this following a trial in which we now know crucial defence evidence was suppressed and prosecution witnesses gave false evidence under oath.

#FREETOMHAYES

#FREETHELIBORSCAPEGOATS

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