Bermingham & Anor v R.

A post-verdict allegation of juror misconduct will not undermine a conviction without strong and compelling evidence of an irregularity. Jurors may draw on ordinary life experience and general professional knowledge. A conviction is at risk only where a fair-minded and informed observer would find a real possibility of bias, including through special knowledge of the people or facts outside the evidence.

A concluded interlocutory ruling should not ordinarily be reopened. A conspiracy to defraud charge remains sufficiently certain where the indictment and directions require knowing, deliberate disregard of the proper basis for submissions, an intention to prejudice another’s rights, and dishonesty. The gradual clarification of dishonesty by judicial decision was compatible with Article 7 of the European Convention on Human Rights.

Following a retrial in the Crown Court at Southwark, Colin Bermingham and Carlo Palombo were convicted by majority verdicts of conspiracy to defraud arising from alleged manipulation of Euribor benchmark-rate submissions to benefit trading positions. Bermingham received five years’ imprisonment and Palombo four years.

They challenged the safety of their convictions on alleged juror misconduct and apparent bias, the trial judge’s direction on the proper basis for Euribor submissions, and the legal certainty and mental elements of conspiracy to defraud. The challenge to the Euribor direction sought to reopen an interlocutory ruling in the same proceedings, upheld in R v B (Bittar) [2018] EWCA Crim 73.

1. Ground 1 was dismissed. The post-verdict complaint did not provide strong or compelling evidence that Juror A had conducted internet research or introduced improper material. The other jurors’ accounts, the police investigation, and the absence of any contemporaneous report were determinative. The alleged information would in any event not have materially affected the issues of knowledge, participation and dishonesty.
2. The court applied the apparent-bias test in Porter v Magill [2001] UKHL 67. A fair-minded and informed observer would not find a real possibility of bias. Juror A’s two-month internship at UBS in 2013 was remote from the indictment period and superficial. He had no relevant special knowledge of the individuals or facts, and general knowledge of banking practices could properly inform jury deliberations.
3. Leave was refused on Ground 2. The earlier interlocutory decision on the construction of Article 6 of the Euribor Code could not be reopened merely because evidence at trial was said to support a different interpretation. The Code’s intrinsic terms made clear that a panel bank could not take account of its own trading advantage when submitting a rate. Evidence about the drafters’ views was relevant to the applicants’ state of mind and honesty, but not to the Code’s legal meaning.
4. Leave was refused on Ground 3. The indictment and directions required the prosecution to prove a knowing agreement deliberately to disregard the proper basis for submissions, an intention to prejudice another’s rights, and dishonesty. The jury had first to identify each defendant’s actual knowledge or belief and then apply ordinary decent standards of honesty. That demanding structure satisfied legal certainty and Article 7. The direction that economic interests may be prejudiced did not permit conviction for recklessness; it required intended prejudice to rights, including exposure to a risk of economic loss.
5. The court added non-binding procedural guidance. Relevant disclosures by a prospective juror should normally be discussed with counsel before the juror is sworn, and selected juror questionnaires should be retained through the appeal period. Future indictments should preferably allege an intention to prejudice economic interests directly.

• Court of Appeal (Criminal Division): Granted Palombo an extension of time and granted leave on the juror ground, but dismissed that appeal. It refused leave on the remaining grounds.
• Court of Appeal (Criminal Division): In a co-accused’s interlocutory appeal, upheld the preparatory ruling on the interpretation of the Euribor Code: R v B (Bittar) [2018] EWCA Crim 73.
• Crown Court at Southwark: After a retrial, convicted Palombo and Bermingham of conspiracy to defraud in March 2019. Bermingham was sentenced to five years’ imprisonment and Palombo to four years. Bermingham was later ordered to contribute £300,000 to prosecution costs.