B, R. v [2018] EWCA Crim 73

[2018] EWCA Crim 73

Case No 201704370 C5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM SOUTHWARK CROWN COURT

HIS HONOUR JUDGE GLEDHILL QC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31/01/2018

Before

LORD JUSTICE DAVIS

MR JUSTICE TEARE

MR JUSTICE BRYAN

Between

THE CROWNRespondent

BAppellant

Alexander Cameron QC, Andrew Hunter QC and Luke Ponte (instructed by K & L Gates LLP) for Appellant

Andrew Onslow QC, James Waddington QC, Emma Deacon QC and Dominic Lewis (instructed by the Serious Fraud Office) for Respondent

Hearing Hearing dates: 13 & 14 December 2017

Approved Judgment

Introduction

[1]In recent times, there have been trials in Crown Courts in London of cases involving alleged “Libor fixing.” The present case has, in one sense, an apparent similarity to such cases. But, quite apart from the obvious proposition that each such case is ultimately fact specific, the present case has, it is said, one further and potentially very material distinction. That is that it relates to Euribor (the Euro Interbank Offered Rate): which is governed by a Code of Conduct which has no application whatsoever to Libor (the London Interbank Offered Rate) and which indeed is governed by, and to be interpreted in accordance with, Belgian law.

[2]Trial in the present case is scheduled to begin in April 2018. A hearing designated as a preparatory hearing and which lasted over several days was conducted before HHJ Gledhill QC, sitting in the Southwark Crown Court. On 22 September 2017 the judge ruled to the effect that under the provisions of Article 6 of the applicable Euribor Code (“the Code”), as to be interpreted in accordance with principles of Belgian law, panel banks making submissions for the purposes of the daily Euribor rates being set were prohibited from making submissions which were intended to create an advantage to the trading positions of that bank or of another bank.

[3]The appellant now appeals from that ruling, by leave granted by the judge himself. In the circumstances, reporting restrictions under s.11 of the Criminal Justice Act 1987 apply and will continue to do so until conclusion of the trial or other order of the court in the meantime.*

[4]The hearing before us lasted two days. Having then considered the matter for some days, the three members of the court were all of the firm view that the appeal should be dismissed. The parties were notified at the time of the court’s decision to this effect, so that they could prepare for trial accordingly. At the same time, we indicated that we would give our reasons in writing in due course. These are those reasons.

[5]Before us the appellant was represented by Mr Alexander Cameron QC, Mr Andrew Hunter QC and Mr Luke Ponte. The respondent was represented by Mr Andrew Onslow QC, Mr James Waddington QC, Ms Emma Deacon QC and Mr Dominic Lewis. We would like to place on record the thoroughness, care and skill which were evident in the written and oral arguments presented to us.

Background

[6]It is not necessary to set out the background in any great detail for present purposes.

[7]At all material times the appellant, a French citizen, was an employee of Deutsche Bank. He worked as a derivatives trader from their London office, working on the Euro Money Markets and Derivatives Desk.

[8]Euribor was established with a view to creating a new benchmark interest rate for interbank lending in that currency. It was in effect designed as a counterpart to, indeed competitor of, Libor. Further (and just as with Libor) Euribor might be, and commonly is, designated as the reference rate for interest rate swaps or other derivative transactions.

[9]For the purposes of setting the daily Euribor rate for each respective period (or “tenor”) submissions are received prior to 11 am CET on each day from banks who are on a designated panel. The number of such panel banks has fluctuated from time to time: but around 44 would be representative. At all relevant times Deutsche Bank was on the panel. Put shortly, the Euribor daily rate was fixed by averaging the submissions of each panel bank for the respective tenor, but with the highest and lowest 15% of the respective submissions being excluded. No panel bank was permitted to see any other panel bank’s submissions during the relevant window before 11 am. The daily rate would then be published via Thomson Reuters.

[10]Because of the size and volume of many of the derivative transactions linked to Euribor even a very small percentage difference of 0.01% in the rate as set potentially could have a significant implication, in terms of profit and loss, for relevant underlying transactions.

[11]The Crown’s case, in a nutshell, is that the appellant, together with others employed by other panel banks, covertly conspired together to influence the Euribor rate setting process with a view to gaining trading advantage in derivative transactions for which they were responsible (and thus ultimately tending to increase their Bank’s trading profits and hence their own bonuses which they stood to receive). Means of doing so included, among others, seeking to influence the individuals on the cash desk responsible for making the bank’s submissions and/or contacting colleagues at other panel banks with a view likewise to persuading them to influence the submissions of that bank. Reliance is sought in the present case to be placed on communications contained in emails and Bloomberg chat and telephone conversations, and the alleged covert nature of many of these activities, in support of these allegations.

[12]The indictment in the present case charges the appellant and other named individuals (employees at various panel banks) with common law conspiracy to defraud. The offence is particularised in the following way:

“PARTICULARS OF OFFENCE [CB] (employee of Deutsche Bank), [PM, [CP], [CB] and [SB] (employees of Barclays Bank) and [AK] (employee of Deutsche Bank), between 1st January 2005 and 31st December 2009, conspired together and with other employees of Deutsche Bank, Barclays Bank, Societe Generale and other banks, to defraud in that: (1) Knowing or believing that the abovementioned Banks were party to trading referenced to the Euro Interbank Offered Rate (Euribor). (2) They dishonestly agreed to procure or make submissions of rates into the Euribor setting process by one or more Euribor Panel Banks which were false or misleading in that they: a. were intended to create an advantage to trading the positions of employees of one or more of the abovementioned banks and b. deliberately disregarded the proper basis for the submission of those rates Thereby intending that the economic interests of others may be prejudiced.”

Thereby intending that the economic interests of others may be prejudiced.”

Libor

[13]It is now established that conduct of such a kind (if proved), undertaken with the requisite dishonest intent (if proved), can constitute a criminal conspiracy, under English law, where carried out with regard to the fixing of the Libor rate.

[14]This is established at this level by a series of three cases in the Court of Appeal (Criminal Division): H

[2015] EWCA Crim 46

; Hayes

[2015] EWCA Crim 1944

; and Merchant & Mathew

[2017] EWCA Crim 60

. With regard to alleged Libor fixing the following five principles have in particular been identified (see paragraph 9 of the judgment in Hayes): i) It was inherent in the Libor scheme that the submitting panel bank was putting forward its genuine assessment of the proper rate. Although it had the subjective element inherent in an opinion, it was otherwise to be made by reference to an objective matter – the rate at which the panel bank could borrow funds etc. ii) Any submission made had to be made under an obligation that the submitter genuinely and honestly represented its assessment. iii) Assessments by different panel banks could legitimately differ, but that did not displace the obligation that the submission made must represent the genuine opinion of the submitter. iv) Where there was a range of figures, the submission made had to represent a genuine view and not a rate which would advantage the submitter. v) The submitting bank could not rely on or take into consideration its own commercial interests in making its assessment. The bank was not free to let its submission be coloured by considerations of how the bank might advantage its own trading exposure; that would be contrary to the definition and the whole object of the exercise.

[15]It may be noted that in Merchant & Mathew it was sought to be said that H and Hayes were wrongly decided. In particular, it was sought to be said that so long as the relevant submission for a particular tenor was within a range of permissible rates then the submission was not rendered false simply because the submitter had adjusted the submitted rate within that range at the behest of traders hoping for an advantage in their trading position. This challenge failed: see paragraphs 41 and 42 of the judgment of the court delivered by the Lord Chief Justice.

[16]However, that is the position under English law with regard to Libor. In the present case, the judge was concerned with Euribor: which, as we have said, was, unlike Libor, governed by the Code (in the version extant at the time) and which was itself subject to Belgian law.

Euribor and the Code

[17]Euribor was devised, at the time of the creation of the euro in 1999, to provide participants in euro denominated transactions with a benchmark comparable to those found in many money markets. It was principally devised by the European Banking Federation (“EBF”) representing national banks and the Financial Markets Association (“ACI”) representing European Banks. Two entities (Euribor - ECF and Euribor - ACI) were established, under Belgian law, to supervise the operation of Euribor. The Code was prepared for the purposes of the Euribor setting process; this was replaced in 2008, but in essentially similar terms. The Code was then comprehensively revised in 2013, following a report known as “the EBA/ESMA Report”. However, the latter Code post-dates the matters the subject of the indictment.

[18]For the purposes of the preparatory hearing it was common ground that factual matters set out in paragraphs 41 to 62 of the prosecution skeleton argument presented to the judge could be taken as agreed as providing the context and rationale for the establishment and operation of Euribor and the rate-setting process. That provides valuable background; but we do not need to rehearse it all here.

[19]As for the Code, in its 1999 version, that by its Preface stated as follows:

“The EURO Interbank Offered Rate – “EURIBOR” – is the new money market reference rate for the euro. This Code lays down the rules applicable to EURIBOR and the banks which will quote for the establishment of EURIBOR. EURIBOR is the rate at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 am. Brussels time (“the best price between the best banks”). It is quoted for spot value (two Target days) and on actual/360 day basis.”

[20]Article 1 then set out the various criteria for qualifying as, and remaining, a panel bank. It was specifically stated, among other things, that panel banks “must be of first class credit standing, high ethical standards and enjoying an excellent reputation.”

[21]After provision for the number and spread of panel banks and for periodic review of the constitution of the panel, Article 6 deals with the obligations of panel banks. This provision was central to the debate at the preparatory hearing and before us. Article 6 provides as follows:

“ARTICLE 6: OBLIGATIONS OF PANEL BANKS 1. Panel banks must quote the required euro rates: - to the best of their knowledge, these rates being defined as the rates at which euro interbank term deposits are being offered within the EMU zone by one prime bank to another at 11.00 am. Brussels time (“the best price between the best banks”): - for the complete range of maturities as indicated by the steering committee; - on time as indicated by the screen service provider; - daily except on Saturdays, Sundays and Target holidays; - accurately with two digits behind the comma. 2. Panel banks must commit themselves to transmit to the European System of Central Banks all the necessary figures to establish an effective overnight euro rate, and in particular their aggregate loan volume and the weighted average interest rate applied. 3. Panel banks must make the necessary organisational arrangements to ensure that delivery of the rates is possible on a permanent basis without interruption due to human or technical failure. 4. Panel banks must take all other measures which may be reasonably required by the steering committee or the screen service provider in the future to establish EURIBOR. 5. Panel banks must subject themselves unconditionally to this Code and its enclosures, in their present or future form. 6. Panel banks must promote as much as possible EURIBOR (e.g. use EURIBOR as reference rate as much as possible) and refrain from any activity damageable to EURIBOR.”

[22]Article 7 provides for the establishment of a Steering Committee. There are further Articles. It is not, however, necessary here to refer to the precise terms of the remaining Articles or Enclosures to the Code.

The issue before the judge

[23]The meaning and effect of a code such as this, were it subject to English law, would be a matter of law for the trial judge at a criminal trial: see, for example, Spens

[1991] 1 WLR 624

. In the present case, however, the interpretation of the Code was, as we have said, governed by Belgian law. That, under conventional principles, in an English trial involves consideration by the English court of the applicable foreign law principles of interpretation: to be decided, as a matter of fact, by the judge (not jury): see s.15 of the Administration of Justice Act 1920; Hammer

[1923] 2 KB 786

[24]Although there was some debate before the judge as to the burden and standard of proof to be applied in deciding what the applicable Belgian law was, the judge held that the burden of proving the relevant Belgian law principles fell on the prosecution and that the standard of proof was the criminal standard. That has not been challenged by any respondent’s notice. The judge further ruled that (applying Belgian law principles as so established) the proper interpretation of the Code was then a matter of law for him.

[25]Much of the applicable Belgian law was not in dispute. For the purpose of the preparatory hearing, the judge recorded that the parties were agreed that there was only one question of Belgian law for the court to decide. That was framed as follows:

“Has the prosecution satisfied the court to the criminal standard that, pursuant to Belgian law, the court is not required to hear extrinsic evidence in order to construe the Code; but that whether the court decides to hear extrinsic evidence is a matter solely for the court's discretion.”

[26]The point was important for this reason. The defence were by this stage arguing that it was mandatory, under Belgian law, for a judge to receive extrinsic evidence when called upon to interpret a contract or Code such as this. On that footing, the defence wished to adduce substantial extrinsic evidence from a number of sources designed to explain the true intention behind, and intended application of, Article 6.1 of the Code. That, of course, would be entirely contrary to the usual approach of English courts applying English law: but it was said to be required under Belgian law.

[27]Perhaps the principal aspect of the evidence which the defence wished to adduce for this purpose was evidence from witnesses designed to show that submitting rates designed to confer potential advantage on the submitting bank's trading positions was intended to be permissible and lawful under the Code, as well as being common practice. Most notably, the defence were seeking to adduce evidence from Jean-Pierre Ravise, Nikolaus Bomcke and Helmut Konrad (who each had made a statement dated 31 May 2017) and who in 1999 had respectively been President of the ACI in France, Secretary General of the EBF and President of the ACI in Germany. They were presented as the architects, or "founding fathers", of Euribor and as having been closely involved in the drafting of the Code.

[28]Thus in Mr Bomcke's statement, with which Mr Ravise and Mr Konrad agreed, Mr Bomcke provides a running commentary, as it were, on how Euribor, and the rate setting process, were designed to work. He among other things stated that:

"Nobody directly considered whether a bank might also bear in mind its net position in the derivatives market (or any other market) when quoting"

. However, he said that "Commercial interest was welcome when quoting for [Euribor]"; and stated:

"Therefore a panel bank might also consider its position in the derivatives market when quoting, as long as that bank could justify the rate as being a [sic] rate at which one prime bank could lend to another prime bank."

His concluding paragraph was in these terms:

“Conclusion As I have set out above, the Code of Conduct did not expressly prohibit panel banks from taking into account commercial interest in quoting EURIBOR rates. Furthermore, the consideration of commercial interest by a panel bank did not necessarily render the submitted EURIBOR rate false, as long as the submission could be justified by that bank as a rate at which one prime bank could lend to another prime bank.”

[29]Further, in the second witness statement of Mr Konrad dated 21 August 2017, Mr Konrad offered the view that for a submitting panel bank to favour a higher or lower rate to submit, depending on its trading positions, would not "render the rate submitted to be false as long as it was a rate which was within the range of justifiable rates....once such a range of equally correct and permissible rates is established, it is at the discretion of the bank to choose any rate from within the range....Whether the bank's commercial interest, the bank’s balance sheet requirements or the bank's trading positions are taken into the consideration this does not render the rate false or non genuine."

[30]The defence also wished to call evidence from others to like effect.

[31]At all events, if that was Mr Bomcke's (and the others’) understanding it seems to have been contrary to the understanding of, among others, his successor as Secretary General of the EBF, Mr Ravoet, who had previously made a statement on 31 March 2014. It is also contrary to the EBA/ESMA Report of 2013 which among other things states (at paragraph 42):

"Panel Banks are therefore not supposed to quote a price reflecting their own position."

[32]The position of Mr Hunter, who advanced the arguments on behalf of the appellant on this aspect of the case, was that the fact that such evidence was strongly disputed was no reason to exclude it: on the contrary, it should have been admitted and then evaluated in the light of the other evidence.

[33]He in effect adopted the same stance on another point raised. It was common ground that, under Belgian law, the court was concerned to ascertain the joint, shared, intention of the parties. But how, then, could these (at the time, apparently unpublicised) views and intentions of Mr Ravise, Mr Bomcke and Mr Konrad be taken to represent the views and intentions of all the others - which would include panel banks - who were also, or who would become, party to the Code? We received no very coherent or convincing explanation on this aspect, at all events.

[34]The appellant's ultimate argument on these matters of Belgian law only seems to have emerged very late in the day. Prior to August 2017 the appellant had appeared to be in agreement that it was, under Belgian law, a matter for the judge's discretion as to whether (and, if so, the extent to which) he or she would receive extrinsic evidence to ascertain the meaning and true intent of a commercial document such as this. But, in reliance in particular on a recent doctoral thesis by J. Waelkens - since published as a book - and on certain passages taken from a judicial decision delivered in the Hasselt District Court on 20 January 2003, the appellant's argument matured. For their part, the respondent and its Belgian law experts throughout maintained that it was a matter for the judge's discretion as to what materials he or she received in interpreting a contract under Belgian law: and, in particular, that there was no call to do so where the meaning of the contract was clear from its own terms.

[35]At the preparatory hearing the judge, in addition to receiving extensive written materials and statements of numerous experts on this point, also heard at some length - over three days - the oral evidence of Professor Nuyts, called by the prosecution, and Maitre Arnauts, called by the defence.

[36]In his ruling, helpfully reduced to writing, the judge noted the background. He posed the question and gave answers to the burden and standard of proof indicated above. He set out the general background, both with regard to Libor and Euribor, and the relevant terms of the Code. He summarised the respective cases, making clear that he did so relatively shortly because of time pressures and the need for expedition.

[37]On the expert evidence, the judge noted that in fact the experts were to a great extent agreed on the relevant Belgian law; and in that regard referred to a Joint Note dated 1 August 2017 setting out points of agreement. Where there was disagreement, he in terms found that he was sure that the relevant Belgian law was as set out by Professor Nuyts. On that footing, he found that if the common intention was, in the view of the judge, clear from the contract itself, taking into account its wording and other intrinsic elements of the contract, the court need go no further. If, however, the common intention still remained unclear then the court may then go on to consider extrinsic matters, such as pre-contract negotiations, post-contract conduct or extra-contract declarations.

[38]The judge had noted that there were some areas of evidence which were not easily categorised as either intrinsic or extrinsic. His central finding as to the approach to ascertaining the common intention was expressed as follows:

“In respect of the approach of the court as to determining common intention, I reject the defence expert evidence that the court must take into account the extrinsic elements. Whether the court wishes to consider the extrinsic elements is a matter for the discretion of the court when it has not otherwise been able to determine common intention.”

[39]Having made those findings by reference to his assessment of the expert evidence on Belgian law, the judge concisely expressed his decision on the ultimate issue before him at paragraph 46 of his ruling in these terms:

“Ruling on the issue I The common intention of the parties to the Code is clear from the EURIBOR definition, as stated in Article 6.1 of the Code. The panel banks were not permitted to take into account their own trading advantage when submitting the daily rate. The common intention was that each panel bank would submit a rate which to the best of their knowledge was the rate at which euro interbank term deposits were being offered within the EMU zone by one prime bank at the given time. The common intention was that each bank was to make an independent and genuine assessment of the rate submitted. When putting forward its assessment of the rate there is a subjective element to the assessment, as any assessment is to an extent a matter of opinion. But otherwise the rate was to be assessed objectively as to the rate at which deposits were to be offered by one prime bank to another at the given time. II The common intention is also clear from the other intrinsic elements of the Code. In particular, the Preface states that EURIBOR is the new market reference rate for the Euro. The rate was to be used on the financial markets and would be relied on by third parties. III In these circumstances, having determined the common intention, Belgian law does not require the court to consider the extrinsic elements and there is no other reason to do so in this case. IV Pursuant to the principle of good faith, the Code is to be supplemented by the requirement that panel banks should not take into account trading advantage when submitting the rate. V I reject the defence submission that the fact that the taking into account of the bank’s own trading position is not expressly prohibited means that the Code must be construed as if it were therefore permitted. There was no common intention of the parties that the panel banks were permitted to manipulate the rate for their own advantage or the advantage of others – and conversely, to the disadvantage of others. VI I also reject the defence submission that the bank was permitted to take into account trading advantage when selecting the rate to be submitted as long as the rate was within the range of justifiable rates. If the banks were permitted to take their own interest/s into account, the rate submitted would not be objective and would not be submitted to the best of their knowledge. On the contrary, it would be subjective and would distort the EURIBOR rate. VII There is no need in the circumstances to apply Article 1162 of the Civil Code. VIII As I have ruled at paragraph III above, I am not required to hear evidence of the extrinsic elements. However, I am conscious that such evidence will be relevant, or at least some of it will be, at the trial. It is admissible if it goes to the issue of the defendant’s state of mind, and in particular, to whether he or she was acting honestly. Indeed, it may very well be that the real issue in this case is whether the prosecution can prove that the defendant was dishonest, within the meaning as set out by the Court of Appeal (Criminal Division) in the case of R v Ghosh 75 Cr. App. R. 154.”

[40]Having so held, the judge went on briefly to say that he also accepted that the various decisions of constitutions of this court in the Libor cases (cited above) were also relevant, and that "the principles set out in these cases should guide this court as to the correct approach in law”.

Grounds of appeal

[41]The appellant advanced five grounds of appeal.

[42]The grounds were as follows:(1) The judge erred in concluding that Article 6.1 of the Code was clear as a matter of construction: in particular, as to whether a panel bank could, taking account of its own trading advantage, select from a range in making its rate submission.

(2) The judge erred in refusing to permit the defence to adduce evidence of extrinsic matters, including evidence from those involved in drafting the Code, members of the Euribor Steering Committee and others.

(3) The judge erred in concluding that the Code was to be "supplemented" by Belgian law principles of good faith.

(4) The judge erred in holding that the Libor cases were relevant and that their principles should govern the court's approach in the present case. To the contrary, those cases were not material. Further, it was procedurally unfair for the judge himself to rely on such cases when he had precluded the defence from relying on evidence of extrinsic matters.

(5) The judge erred as to the standard of proof to be applied, once he had (correctly) held that Belgian law had to be proved to the criminal standard. On that basis, Belgian law treated the interpretation of a contract as the ascertainment of the parties' shared intention and, as such, as a question of fact (rather than law): and the judge should have approached the exercise of interpretation accordingly, applying the criminal standard.

[43]The response of the respondent, summarised very shortly, was to the effect that the judge, having appraised the expert evidence as he did and recorded conclusions of fact on that evidence which are not assailable in this court, was entirely justified in then finding the wording of Article 6.1 to be clear; and further was entirely justified, in his discretion, to refuse to receive the proposed extraneous evidence. On that footing, grounds 3 and 4 effectively fell away (although, it is said, these were in any event proper conclusions of the judge). As for ground 5, that, it was said, involved a misunderstanding of the correct approach.

Disposition

[44]With all respect to the elaborate and detailed arguments advanced before us, we propose to express our reasons relatively shortly. We are in no doubt that the judge was entitled to appraise the expert evidence as he did; and, having so appraised that evidence, to draw the conclusions as he did, without resort to the proffered extraneous evidence.

[45]We were taken on quite an extensive tour of the authorities as to the approach to be taken by an appellate court as to a trial judge's findings on foreign law. The position, and many of the relevant cases, is helpfully summarised in the recent decision of a constitution of the Court of Appeal in Dexia Crediop S.P.A. v Comune di Prato [2017 EWCA Civ 428 at paragraphs 34 to 42 of the judgment. In a case such as the present, at all events, the appellate court will be slow to substitute its own view of matters for that of the trial judge, who has had the advantage of hearing the oral evidence.

[46]The starting point of the appellant’s argument was Article 1162 of the Belgian Civil Code. That, as translated, provides:

“In contracts, one must seek the common intention of the parties, rather than follow the literal meaning of the words”

But while this plainly sanctions a broad and purposive approach in ascertaining the common intention the Civil Code does not of itself prescribe the procedures which a Belgian court is to adopt in approaching the issue of interpretation in any given case.

[47]We did not understand Mr Hunter to seek to argue that the judge's decision (as a matter of fact) on Belgian law to be perverse or as one not properly open to him. Nor, sensibly, did he pursue any point that the judge gave insufficient reasons for preferring the evidence of Professor Nuyts. But in any event - having been referred by Mr Onslow, in particular, to numerous passages in the oral evidence taken from the transcripts - we are in no doubt that the judge was entitled to accept Professor Nuyts' evidence and to conclude, to the criminal standard, that there was no requirement or obligation on the part of the judge under Belgian law to receive the proposed extraneous evidence.

[48]It serves no purpose, at this appellate stage, to give chapter and verse on the point. Professor Nuyts’ written reports are clear on the matter. They are fully supported by other evidence and by a considerable quantity of Belgian law materials, including leading practitioners' text books of high authority. Judging by the transcripts, we also gain the strong impression - one the trial judge clearly must have gained - that Professor Nuyts gave measured, consistent and authoritative answers refuting the defence case as put to him in a sustained and lengthy cross examination. The defence case, on the other hand, depended to a great extent on the views of Dr Waelkens expressed in her recent thesis: views which, though entitled to respect, did not accord with numerous other authoritative texts and which could be said to be an advocation of what the writer thought the law ought to be rather than what it was. As for the decision of the Hasselt District Court of 20 January 2003, although it is true that some passages in that decision are consistent with an obligation to consider extrinsic evidence in such a case other passages are more equivocal ("To determine this real will, the judge does not have to limit himself to a linguistic analysis of the will but he can also [emphasis added] consider extrinsic elements"). Nor does the decision fit at all well with the approach indicated in a subsequent Court of Cassation decision, referred to by Professor Nuyts.

[49]Thus there is no proper basis for this court interfering with the judge's (factual) determination of the disputed foreign law issues.

[50]We turn to the specific grounds on that footing.

Ground 1

[51]Mr Hunter launched a strong attack on the judge's conclusion that, approaching the matter intrinsically, the meaning of Article 6.1 was clear. In our view, however, the judge's conclusion to that effect was entirely justified.

[52]On any view of Belgian law, the judge was at least entitled to look at all the provisions of the Code to assist in the determination of the meaning of Article 6.1. And it is noteworthy that the Code, among other things, stipulates:(1) The rate is to be “the best price between banks”: it is clear from the words of the Preface that hypothetical prime banks are contemplated, not any particular individual panel bank.

(2) Panel banks are required to have high ethical standards and enjoy an excellent reputation.

(3) The submission is required to quote the rate “accurately with two digits behind the comma”; and

(4) Panel banks are to refrain from any activity damaging to Euribor.

[53]These points, taken both individually and cumulatively, tell strongly against the appellant’s argument that an individual panel bank can have regard to its own trading advantage in making its submission.

[54]The point, however, is then put beyond any real doubt by the opening words of Article 6.1 itself. The submitted rates are required to be by reference to the rates at which euro interbank term deposits are being offered “by one prime bank to another” – that is, viewed objectively, again by reference to a hypothetical prime bank (not the individual panel bank). And that is then all qualified by the requirement that the quoted rate is “to the best of their knowledge”. This language is specific. It is not, pace Mr Hunter, vague. And it is wholly inconsistent with the panel bank being entitled in effect to skew the submitted rate to its own trading advantage: for that would not then be putting forward its “to the best of their knowledge” assessment of what is, objectively, the best price between the best banks.

[55]We think it legitimate to have regard also, if necessary, to the underpinning reasoning of the courts in the Libor cases. This is not to use those cases as extrinsic materials but simply to point out that aspects of the underpinning reasoning in those cases in principle would apply equally to Euribor. This is, essentially, because both rates (Libor and Euribor) are designed to be a comparable benchmark for the relevant markets for the day in question (as the summary of the background facts before the judge itself indicated). It is hard to conceive how such a benchmark, if to work, ever could have been intended to be permitted to be influenced by the trading advantage of individual submitting panel banks. (Indeed, as was put to Mr Hunter in argument, that prospectively would confer on panel banks a potentially great commercial advantage denied to other, non-panel, banks.) So to permit would be contrary to the whole object of the exercise. As stated by the court in H and in Hayes (see in particular at paragraph 47) unless the requirement was to give a genuine assessment of the rate the market could not operate. Those sorts of considerations surely must apply as much to Euribor as to Libor: and are also wholly consistent with the language of Article 6 of the Code, read as a whole, and with the words “to the best of their knowledge” in particular.

[56]This reading thus also disposes of the appellant’s central argument that to submit a rate designed to advantage the submitting bank is permissible if that submitted rate is within the (or perhaps a) justifiable range. In our judgment, one cannot get that out of the language of Article 6. Article 6.1, after all, is directed at a single rate, to be submitted (to two decimal points) to the best of the submitting bank’s knowledge. The Article simply is not directed at a range of rates from which a submitting bank then may choose to suit its own advantage. In any event, what is the “justifiable range”? Is that range to be determined with or without reference to a panel bank’s own trading advantage? And might not such a range itself thereafter become capable of being skewed if all panel banks are entitled on preceding occasions to submit rates to their own advantage? Again, the underpinning reasoning in Merchant & Mathew – where the like point as to “range” had been specifically pursued – surely has equal purchase in the Euribor context.

[57]This ground fails.

Ground 2

[58]On the footing that the judge had a discretion as to whether or not to admit extrinsic evidence, it then is said that the judge erred in the exercise of his discretion in refusing to admit such evidence.

[59]The judge expressed himself shortly on this point in paragraph 46.III of his ruling. But having (properly) found that Belgian law did not require the court to consider extrinsic evidence, he was, in our judgment, fully entitled to decline to do so. His decision was expressed to be made “in these circumstances”: that is, whereby the judge had found that the common intent was clear from the intrinsic terms of the Code itself. Since that was itself a proper conclusion, it was a proper exercise of discretion accordingly to decline to admit extraneous materials.

[60]The judge also made clear his view that there was “no other reason” for considering the proposed extraneous evidence. Again, that was a decision properly open to him. Indeed it might be queried how such evidence should ultimately assist on the issue of common shared intent given that the (at the time apparently undisclosed) views of Mr Ravise, Mr Bomcke and Mr Konrad and others were by no means necessarily shared by all and given that there was no obvious basis for saying that their individual views bound all panel banks and others from time to time party to the Code. Yet further, it was common ground that under Belgian law extrinsic evidence cannot permit a conclusion which is irreconcilable with the words of the contract by process of interpretation.

Ground 3

[61]The experts were agreed in their Joint Memorandum that under the Belgian law principle of good faith the court was to look for the parties’ intention “which supposes to consider the meaning that may reasonably be attributed to the parties in the circumstances at hand.”

[62]Mr Hunter shortly submitted that the judge erred in his application of that principle as stated in paragraph 46. IV of his Ruling. We do not agree. In truth, this conclusion of the judge was not an independent and essential ground for his decision. Rather, it in effect followed from the judge’s (proper) previous conclusion that the meaning of Article 6 was clear as to what the common intent was. As Mr Onslow and Mr Waddington put it, the judge’s conclusion on this particular point was the natural consequence of his interpretation of Article 6 of the Code. The prosecution thus observed that recognition of the Belgian law principle of good faith operates to exclude an interpretation of the Code which would permit panel banks, whether individually or in combination, to behave in the manner which is the subject of the indictment in the present case.

Ground 4

[63]By this ground the appellant complains, as we have said, that the judge wrongly and unfairly had regard to the decisions of the English courts on the Libor cases (cited above). Not only were those cases governed by English law and did not involve the Code but in any event it was unfair and inconsistent for the judge to, in effect, take those cases into account as extraneous materials.

[64]There is nothing in this point. The fact is that, in broad terms, Euribor was intended to be a benchmark, comparable to Libor, for euro denominated transactions. Mr Cameron rightly conceded that the judge was entitled to have regard to the underpinning reasoning in the Libor cases to the extent that such reasoning bore on the intrinsic meaning and intended effect of the Code (as indeed we have ourselves done in earlier parts of this judgment). Although the judge’s remarks in paragraph 48 of his ruling are perhaps not ideally worded, it is plain enough that that had been his approach and that was what he was intending to indicate. That was a justified approach.

Ground 5

[65]Finally, it is said that the judge erred (having correctly ruled that Belgian law had to be proved to the criminal standard) in then holding that the proper construction of the Code was a matter of law for him. It is said that, to the contrary, the interpretation of the Code was a matter of fact on which the judge also had to be satisfied to the criminal standard. Mr Hunter in fact at some stages in his argument rather implied that the judge could never be so satisfied to that standard, given the evidence on this issue adduced by the defence seeking to rebut the prosecution case.

[66]We reject this argument.

[67]Mr Cameron and Mr Hunter noted that under Belgian law the experts were agreed that what was the common intention of the contracting parties as a matter of interpretation was regarded as an issue of fact. That was indeed so: although Professor Nuyts in his oral evidence explained that that principle pertained to the “sovereign appreciation of the trial judge” and thus had a limiting effect on the prospects of an appeal to the Court of Cassation. At all events, that being so, the argument went, the English court itself had to approach the question of interpretation as a matter of fact: thus the English court was required, so the argument went on, to be satisfied to the criminal standard.

[68]In our judgment, that is incorrect. This was a procedural matter, governed by the lex fori. Under English law – the lex fori – the general principle is that questions of construction, whether of domestic or foreign documents, are matters of law, not fact, and belong exclusively to the court: see Phipson on Evidence (18th ed.) at paragraph 33-83; Dicey, Morris and Collins on the Conflict of Laws (15th ed.) at paragraph 9-019; Lewison on the Interpretation of Contracts (6th ed.) at paragraph 5-06. Further, it is a settled principle that matters of law as such ordinarily are not to be decided on an application of an evidential burden of proof.

[69]As explained by Lord Clarke in Alhamrani v Alhamrani

[2014] UKPC 37

, by way of general approach to issues of interpretation of a foreign document “the court will receive expert evidence of the foreign law… which includes the correct approach to interpretation and the relevance or otherwise of particular types of evidence. It is then for the … English court to decide for itself what the contract means”: see paragraph 18 of his judgment. At paragraph 27 he further stated that the proper meaning of a contract governed by foreign law is not a finding of primary fact.

[70]The judge accordingly had properly directed himself on this aspect. This ground also fails.

Conclusion

[71]We have sought to bear in mind all the many points and nuances of the arguments advanced before us. We have expressed ourselves relatively briefly by reference to those very careful and detailed arguments presented to us. In the result, for the reasons above given, we confirm our previously announced decision to dismiss the appeal. We confirm the judge’s ruling.

[72]We add this. It is possible to see that at least some of the various points raised – as noted by the judge himself in paragraph 46.VIII of his ruling – may go to the issue of dishonesty. Nevertheless in so saying the judge was, understandably at the time, also bearing in mind the principles of Ghosh 75 Cr. App. R 154. But those principles are now to be regarded as potentially overtaken or modified by the subsequent decision of the Supreme Court in Ivey v GentingCasinos (UK) Ltd

[2017] UKSC 67

. At all events, very careful consideration and case management will need to be applied prior to trial as to just what evidence may properly be adduced on the issue of dishonesty and as to just what proposed evidence is properly to be excluded as an irrelevant and potentially oppressive distraction for the jury.• Note: Reporting restrictions were lifted on 25 July 2018.