On 9 December 2020, the Court of Appeal handed down its judgment in R v Bermingham  EWCA Crim 1662.The applicants sought permission to appeal against their convictions for conspiracy to defraud. In brief summary, the prosecution alleged that the applicants had manipulated the Euro Interbank Offered Rate (‘Euribor’) in order to benefit the trading positions of interest rate derivative traders. The pair were convicted following a re-trial (by a majority of 10 to 2) and applied for leave to appeal against their conviction in the Court of Appeal.
The appeal concerned three separate grounds. The first two are not of relevance to this case update; the focus here is on the third ground.
In summary, the applicants argued that the charge of conspiracy to defraud brought against them lacked legal certainty in accordance with common law principles and Article 7 of the European Convention on Human Rights (ECHR). At  of the judgment, the Vice President of the Court of Appeal (Criminal Division), Fulford LJ, identified that the Court was ‘satisfied that the requirements of legal certainty were fully met in this case by both the indictment and the agreed legal directions on the elements of the offence given by the trial judge’. His Lordship would quote heavily from the directions of the trial judge, identifying such directions as ‘clear and comprehensive’ (at ). Relying on the Court’s earlier judgment of R v Barton; R v Booth  EWCA Crim 575, Fulford LJ concluded that the offence of conspiracy to defraud did not lack legal certainty, and thus did not fall foul of Article 7 (at ). So long as the applicants were able to identify the case they had to meet, and the indictment revealed the offence on which the jury were entitled to convict, there was legal certainty.
Lord Justice Fulford took the opportunity to confirm Ivey (Ivey v Genting Casinos (UK) Ltd  AC 391) and Bartonto be correct statements of law (referring to Barton as ‘undoubtably correct’ at ). His Lordship had previously explained that the applicants were not ‘disadvantaged’ (at ) by the change in the standard of dishonesty. In fact, as observed in Barton, the Ivey test remains a test as to the state of mind of the defendant – it is to his knowledge or belief that the jury are to apply their standards of ordinary decent people. According to Fulford LJ, this subjective element of the test proffers ‘a substantial measure of protection’ to defendants (at ). In respect of dishonesty, Fulford LJ would conclude (at ): ‘In these circumstances there is simply no basis for a submission that the applicants were unfairly convicted because they did not realise at the relevant time that what they were doing was wrong and the conduct made them criminally liable.’
The final element raised under this ground of appeal concerned the trial judge’s direction to the jury which, in the arguments of the applicants, suggested that mere recklessness was sufficient to found an offence of conspiracy to defraud. The trial judge directed the jury that they had to be sure that the defendants intended ‘that the economic interests of others may be prejudiced’. The use of ‘may’, it was argued, raised a question as to whether recklessness was sufficient. Conspiracy to defraud, as with statutory conspiracy, requires an intention to carry out the offence. The Court of Appeal was satisfied that the jury were clearly directed that they had to find intention on the part of the applicants and nothing less. By way of postscript, Fulford LJ explained that: ‘For the avoidance of doubt, indictments in the future would be better framed in this context using, for instance, the expression “thereby intending to prejudice the economic interests of others” rather than “thereby intending that the economic interests of others may be prejudiced”.’
As such, the ground of appeal was unarguable and application for leave to appeal was refused.