Pabon, R v

On an appeal against conviction, the sole statutory question is whether the conviction is unsafe. Where fresh evidence emerges, the appellate court must assess its significance for itself in the context of the whole trial. The possible effect on the jury is only a useful cross-check in a difficult case.

An expert must give objective and unbiased evidence within the limits of genuine expertise. Serious breaches of that duty do not automatically make a conviction unsafe. The court must determine whether the defective evidence affected a live and material issue. A conviction may remain safe where the expert’s unreliable evidence was peripheral and the decisive issue was established by other evidence.

The appellant was convicted at Southwark Crown Court of conspiracy to defraud by dishonestly procuring false or misleading US dollar LIBOR submissions that were intended to benefit Barclays trading positions. He was sentenced to two years and nine months’ imprisonment.

His original application for permission to appeal had been refused by the Single Judge but was neither renewed nor formally abandoned. Following the acquittal of two co-defendants at a retrial, fresh material showed grave failures by the prosecution banking expert, Saul Rowe. The Court granted an extension of time, permission to rely on fresh evidence and leave to appeal.

The central question was whether Rowe’s misconduct and lack of expertise rendered the appellant’s conviction unsafe.

1. Appeal dismissed. The Court granted permission to advance the late appeal and fresh evidence, but held that the conviction was safe.

2. Rowe had seriously failed in his duties as an expert. He had obscured assistance received in preparing his report, failed to disclose the limits of his expertise, given evidence in areas at or beyond its edge, and discussed his evidence after being warned not to do so. An expert must provide objective and unbiased opinion within the expert’s competence, as required by Criminal Procedure Rules Part 19.2. Expertise may be acquired in different ways, but evidence outside a witness’s actual expertise is not expert assistance and can undermine the fairness of a criminal trial.

3. Under section 2(1) of the Criminal Appeal Act 1968, the Court itself had to decide whether the conviction was unsafe. Applying R v Pendleton [2001] UKHL 66, the possible impact of fresh evidence on the trial jury was not the determinative question, although it could test the Court’s own assessment in a difficult case.

4. Rowe’s general banking evidence concerned largely uncontroversial background matters. His defective evidence on technical STIR trading did not bear on the decisive issue: whether the appellant had dishonestly agreed to procure artificial LIBOR submissions. Other knowledgeable Barclays witnesses and an agreed glossary were available. The judge had also excluded Rowe’s proposed opinion that a trader could not have been unaware that LIBOR had to be set independently of trading interests.

5. In the context of the trial as a whole, Rowe’s failures neither affected the dishonesty issue nor created a sufficient risk of error. The retrial acquittals did not alter that conclusion. The Court was satisfied that the fresh material would not reasonably have affected the jury’s verdict.

• Court of Appeal (Criminal Division) — Granted an extension of time, permission to adduce fresh evidence and leave to appeal; dismissed the conviction appeal: [2018] EWCA Crim 420.
• Southwark Crown Court — On 29 June 2016, convicted the appellant by a majority of 10 to 2 of conspiracy to defraud. On 7 July 2016, sentenced him to two years and nine months’ imprisonment.