After Hayes and Field, is it now CACD 2.0?

22 June 2026

On Thursday 11 June 2026, Shaw Graham Kersh LLP was invited to attend a seminar at QEB Hollis Whiteman presented by Adrian Darbishire KC and David Jeremy KC and titled: 

After Hayes and Field, is it now CACD 2.0?

Adrian Darbishire KC led the successful Supreme Court appeal that quashed Mr Hayes 2015 LIBOR conviction in a landmark decision reshaping UK financial crime. David Jeremy KC represented Mr Field whose 2019 conviction for murder was recently quashed in the Court of Appeal. 

On 1 June 2026, Shaw Graham Kersh LLP launched its Appeal Department which is building out the firm’s appellate practice. The invitation to attend the seminar was very well received and timely, and an opportunity to learn more about these cases both of which have attracted widespread legal, academic and media attention.  
Haynes and Field – an introduction

The Hayes and Field cases are strikingly dissimilar: one involving allegations of conspiring to defraud and the other an allegation of murder, but both cases have similar and quite extraordinary appellate histories. Reflecting on this, it is telling in the context of the Court of Appeal, Criminal Division’s purpose which is to correct legal errors, remedy injustices and to clarify the criminal law and there are wider implications relating to the trial process in England and Wales.

Hayes (and others) 

The Serious Fraud Office (SFO) prosecuted Mr Hayes, and separately Mr Palombo (as well as other individuals (see below)) for conspiracy to defraud. 

The SFO argued that Mr Hayes, a trader, dishonestly manipulated the London Inter-bank Offered Rate (LIBOR) which is based on the rate at which leading banks are willing to lend to one another and is used as the basis for setting financial contracts around the world. 

Mr Palombo, also a trader, was accused of dishonestly manipulating the EURIBOR (Euro Inter-bank Offered Rate).

Both traders admitted that they requested their banks’ designated rate submitters to put forward interest rates that would intentionally benefit their active financial trading positions (commercial advantage). The traders argued that considering commercial or trading advantages was standard industry practice at the time and was not prohibited by the vague definitions governing LIBOR and EURIBOR. They maintained that their submitted rates remained within a genuine, legally permissible range, meaning they did not act dishonestly.

In 2015, Mr Hayes was tried at Southwark Crown Court before Mr Justice Cooke and by a jury. He was portrayed by the prosecutor as a calculating, greedy manipulator who rigged the interest rate for the sole purpose of boosting his trading book. The defence case was that he was just doing his job and was part of a world where “not even Mother Teresa wouldn’t manipulate LIBOR if she was trading”. He denied acting dishonestly. 

Mr Justice Cooke ruled as a matter of law that the LIBOR rules strictly prohibited a bank from factoring in its own commercial advantage. He directed the jury that because Mr Hayes sought a trading advantage, his submissions were automatically not genuine or honest.

Mr Hayes was found guilty. He was sentenced to 14 years’ imprisonment. 

A total of 25 individuals were named in the charges against Mr Hayes as having allegedly conspired with him. Six of those individuals (all brokers) were prosecuted at a separate trial, which ended in January 2016. All six were acquitted.

The SFO brought three further prosecutions. In the first of these, six former employees of Barclays Bank PLC were charged with conspiracy to defraud in attempting to manipulate the US dollar LIBOR. One pleaded guilty; three were convicted at a trial ending in June 2016; two were acquitted at a retrial. Two of those convicted, Jay Merchant and Jonathan Mathew, appealed against their convictions. In February 2017, their appeals were dismissed by the Court of Appeal: R v Merchant and Mathew [2017] EWCA Crim 60 (see below). 

The next prosecutions were of six individuals charged on a single count of conspiracy to defraud which included Mr Palombo. Mr Palombo was tried alongside a co-defendant at Southwark Crown Court and before the judge who presided over Mr Hayes’ case: Mr Justice Cooke. Following the precedent set in Mr Hayes' case, the trial judge gave similar directions to the jury regarding EURIBOR.

The jury failed to reach a verdict at the first trial, and Mr Palombo was retried alongside his co-defendant. At the re-trial, Mr Palombo was found guilty by a 10:2 majority (as was his co-defendant) and sentenced to 4 years’ imprisonment. 

Appellate history 

In 2015, Mr Hayes appealed against his conviction and sentence to the Court of Appeal, Criminal Division (CACD). He argued that the trial judge’s directions were legally wrong and that his sentence was manifestly excessive. 
The Court of Appeal dismissed Mr Hayes’ appeal against conviction but allowed his appeal against sentence which was reduced from 14 to 11 years: R v Hayes [2015] EWCA Crim 1944; [2018] 1 Cr App R 10. 

Mr Hayes then applied to the Criminal Cases Review Commission (CCRC) to have his conviction referred back to the Court of Appeal. The CCRC reached a provisional decision not to refer the conviction back to the CACD. Mr Hayes responded to the Commission’s provisional decision – see below. 

Separately, Mr Palombo appealed against his conviction to the Court of Appeal. He also argued that the trial judge’s directions in his trial were wrong. The CACD dismissed his appeal: R v Bermingham and Palombo [2020] EWCA Crim 1662. He also applied to the CCRC seeking to have his conviction referred back to the Court of Appeal. 

Whilst both cases were before the CCRC, in January 2022, in a parallel US case: US v Connolly and Black, the US Court of Appeals for the Second Circuit overturned the convictions of American LIBOR traders. The US court ruled that if a bank submits a rate within a permissible range, factoring in trading advantages does not constitute criminal wire fraud.

Given the stark divergence between the law in England and Wales and that in the US, in 2023 the CCRC referred both My Hayes’ case and Mr Palombo’s case back to the CACD. As we understand, Mr Hayes made further submissions to the CCRC in this context after the CCRC issued its provisional decision not to refer which in the event were critical to the CCRC’s final decision to refer the convictions back to the CACD. 

The appeals of Mr Hayes and Mr Palombo were heard together by the Court of Appeal in March 2024. The appeals were summarily dismissed by the Court: [2024] EWCA Crim 304; [2024] 2 Cr App R 6.

Supreme Court 

Under section 33 of the Criminal Appeal Act 1968, no appeal lies to the Supreme Court in a criminal case unless the Court of Appeal certifies that a point of law of general public importance is involved in the decision. Unless the Court of Appeal so certifies, the Supreme Court cannot grant permission for an appeal even if the Supreme Court itself considers that a point of law of general public importance is involved. 

Mr Hayes and Mr Palombo sought to appeal the Court of Appeal’s decision to the Supreme Court. 
Although the Court of Appeal dismissed the second appeals of Mr Hayes and Mr Palombo, it certified that the following point of law of general public importance was involved in that decision: 

Whether as a matter of law upon the proper construction of the LIBOR and EURIBOR definitions: 

a) If a LIBOR or EURIBOR submission is influenced by trading advantage, it is for that reason not a genuine or honest answer to the question posed by the definitions; and 

b) the submission must be an assessment of the single cheapest rate at which the panel bank, or a prime bank, respectively, could borrow at the time of submission, rather than a rate selected from within a range of borrowing rates. 

Whilst the Court of Appeal certified the point of law, it did not itself grant permission to appeal saying that it should be for the Supreme Court to decide whether the point of law was one which it ought to consider in the light of the consistent series of decisions of the Court of Appeal. 

The Supreme Court decided that the certified point of law was one which it ought to consider and granted permission to appeal in both cases.

On 23 July 2025, the UK Supreme Court unanimously allowed the appeals and quashed both Mr Hayes’ convictions and Mr Palombo’s conviction, finding them unsafe: [2025] UKSC 29.

The Supreme Court ruled that the original trial judge in both cases (the same judge) had committed a fundamental legal error by treating a question of fact as a question of law. The Court stated it was wrong for judges to instruct juries that taking commercial interests into account automatically meant a submission was dishonest. Whether a trader acted genuinely or dishonestly was a question of fact for the jury to decide, not the judge. By removing this analysis from the jury, the traders were denied a fair trial.

The Serious Fraud Office announced it would not seek a re-trial citing that it would no longer be in the public interest. 

It is noteworthy that, in January 2026, Jay Merchant’s and Jonathan Mathew’s convictions (alongside three others) were referred back to the CACD by the CCRC.

Field

In August 2019, following a trial at Oxford Crown Court before the Honourable Mr Justice Sweeney, and by a jury, Benjamin Field was convicted of murdering 69-year-old Peter Farquhar.

The sole issue in the trial was whether Mr Field had caused Peter Farquhar’s death after he, Mr Farquhar, had ingested whisky and a sleeping tablet, Dalmane, given to him by Mr Field. Either Mr Field had intended to kill Mr Farquhar, or the chain of causation was broken between this alleged misconduct and the prohibited outcome, the death of Mr Farquhar.

The defence argued he could not have caused the death as Mr Farquhar had consumed the whisky and sleeping tablet freely and voluntarily.

The prosecution case was that Mr Farquhar’s actions were not informed as he was not aware of Mr Field’s intention. 

The trial judge directed the jury in relation to causation which in their role as jurors was exclusively a matter for their determination, however, the impact of the directions was that they removed the issue of causation from the jury. (See: R v Kennedy (No 2) [2007] UKHL 38; [2008] 1 AC 269 (“Kennedy (No 2)”).)

Mr Field was convicted of murder and sentenced to life imprisonment and ordered to serve a minimum term of 36 years.

Appellate History 

In 2021, Mr Field’s first appeal against the conviction on the basis that the trial judge’s direction relating to causation was wrong in law and the jury were as a consequence misdirected was dismissed by the Court of Appeal: [2021] EWCA Crim 380 (“CACD Judgment 1”). The Court of Appeal refused to certify that their decision involved a point of law of general public importance and ought to be considered by the Supreme Court. 

In January 2022, in Mr Field’s second appeal, there was an application to re-open the causation argument rejected in CACD 1 on the grounds that the Court that dismissed the first appeal had displayed bias and unfairness: [2022] EWCA Crim 316 (“CACD Judgment 2”). The Court of Appeal dismissed the appeal.

In April 2026, there was a third appeal before the CACD following a referral of the conviction by the CCRC to the CACD: [2026] EWCA Crim 413 (“CACD Judgment 3”), on grounds of:

1. fresh argument of law: drawing on the authorities concerning consent procured by deception in the law of sexual offences, that the jury in Mr Field’s case was misdirected in respect of causation, and 

2. exceptional circumstances justifying inviting the Court to reconsider the argument relating to causation in the previous appeal (a direct challenge to stare decisis: the rule that the court is bound by precedent).
With respect to 2, the CCRC cannot refer a conviction back to the Court of Appeal on grounds previously considered unless there are “exceptional circumstances” and in this case the Commission, in referring the conviction back to the Court of Appeal for a second time, found that there were such exceptional circumstances. (Section 13(2) of the Criminal Appeal Act 1995.)

The CACD quashed Mr Field’s conviction. In doing so, the Court of Appeal effectively rejected the decisions and judgments in the Court’s earlier appeals – in short finding that CACD 1 was wrongly decided and that CACD 2 was wrong in not saying so.

The Court noted, as was made abundantly clear in Hayes and Palombo, the critical importance of correctly identifying the issues in a case which are properly issues of law for the judge and those which are issues which must be left to the jury to decide and that a failure in this regard in Hayes and Palombo led to the quashing of convictions where “the issue which had been wrongly withdrawn (the meaning of two documents) was much less central to that case than the voluntariness of Mr Farquhar’s decision to drink whisky”. 

The Court of Appeal ordered a re-trial. In addition, a point of law of public importance was certified by the Court of Appeal and the prosecution was given leave by the Court of Appeal to appeal to the Supreme Court (which the Court stated should have been certified following the decision in CACD 1) in relation to:

a) whether the trial judge’s directions in law were right, and 

b) the scope of R v Kennedy (No 2).

The decision of the Supreme Court is awaited.

Analysis 

The Supreme Court’s decision in Mr Hayes’ case has been welcomed by the legal community as has the decision in CACD 3 in Mr Field’s case. However, the cases are deeply troubling.

As a starting point: it is a fundamental and basic tenant of criminal law that judges apply the law and juries decide the facts. Put as it is so often: judges are not allowed “to enter the arena” and usurp the role of the jury in a criminal trial. In both Mr Hayes’ case and Mr Field’s case, notwithstanding the complexities of the cases with which the trial judges had to grapple, this is exactly what the trial judges did. It is not entirely clear why but there has been open speculation in this regard. 

A trial judge’s assessment of the evidence in a criminal case is irrelevant when it comes to fact finding, as are any moral considerations he or she may have about a particular defendant.

Directions must be based in law and provided to the jury so that they can followed when they - the jury - consider the evidence and decide the facts.

A direction not based in law will, as seen in Hayes and Field, undermines the trial process and ultimately the rule of law.  

The final outcomes of Mr Hayes’ and Mr Field’s cases serve as stark reminders of who plays what role in a trial. The importance of leaving questions of fact for the jury to decide is the essence of the decision of the Supreme Court. It is troubling that the Supreme Court had to set this out in their judgment.   

The next point: the appellate histories call into question the effectiveness of the criminal appeal system in England and Wales to confront legal error and correct justice when it miscarries. 

My Hayes’ case was considered by the Court of Appeal on three separate occasions: first, at an interlocutory hearing requested by the defence during the trial relating to the trial judge’s directions; secondly, at the first appeal following conviction and sentence; thirdly at the second appeal following a referral of the conviction by the CCRC. On all three occasions, the CACD refused to accept that the trial judge’s directions were wrong, and on the second and third occasions that the convictions were as a consequence unsafe. If we include Mr Palombo’s two appeals, the CACD got it wrong five times. It was the Supreme Court who went on to quash the convictions as unsafe and although the Court of Appeal certified a point of law of general public importance, the Court of Appeal did not grant permission to appeal saying that it should be for the Supreme Court to decide whether the point of law was one which it ought to consider in light of the consistent series of decisions of the Court of Appeal. 

The Supreme Court decided it did want to consider the question and granted permission to appeal in both cases.
With respect to Mr Field’s appeals, his grounds were considered by the Court of Appeal three times before his conviction was quashed. 

The Supreme Court’s judgment in Hayes and Palombo has been described as an “excoriating critique” of the trial and appeal process.  The Supreme Court is highly critical of the CACD for having “summarily rejected”, given “cursory treatment” to and “rebuffed” the appeals, as well as for repeatedly dismissing the ground of appeal which proved successful before the Supreme Court. The CACD is also accused of producing “perplexing” passages in its judgment, advancing “[un]tenable explanations” for earlier cases, as well as adopting “false logic” and introducing a “blind alley” (in its conclusion that there could only be one correct rate per bank). The CACD is also criticised for having “not engaged” with the arguments. “This is strong stuff”. 

The Supreme Court’s consideration of Field is awaited, and similar “strong stuff” from the Supreme Court is expected. 

Stepping back:

• How many convictions has the CACD resisted based on their assessment of the evidence (in Hayes the Supreme Court stated there was ample evidence upon which a jury could convict, but they applied the law) and whose decisions have not gone on to be scrutinised by the Supreme Court? 

• How often – as we have seen in Field – is the CACD courageous enough to accept that on previous occasions the Court has erred? 

We do not know the answers to these questions. 

The Court of Appeal, Criminal Division is the gatekeeper to the Supreme Court. The Court certifies very few points of law of general public importance in criminal cases which gives the appearance of a reluctance to do so (CACD Number 1 in Field is an example). It is open to debate as regards why this is so, but noteworthy that the upshot of section 33 is that the Court of Appeal is left to mark its own homework - and the Court knows this.  

As the CACD’s decisions are not reviewed, and are not capable of being reviewed at the behest of an appellant whose appeal does not succeed in the Court of Appeal, illogical judgments (such as in Hayes and Field) remain, miscarriages of justice are not corrected and “the law” becomes a precedent potentially leading to mistakes in other cases and further injustice.  

The Supreme Court’s damaging appraisal of the CACD serves to undermine confidence in the criminal justice system which is already at a low. The lack of accountability serves as another undermining factor. 

These troubling aspects of the cases have not come as any great surprise to some. Many respected lawyers, academics, journalists, other individuals and interested organisations, including the Criminal Appeal Lawyers’ Association (CALA)  and the Centre for Criminal Appeals (“APPEAL”) , have asserted for years that the Court of Appeal should not hold the key to the Supreme Court’s door. The Hayes and Field cases are yet another reminder that in allowing this, the risks are just far too great: justice itself is rendered perilous and there are profound implications for the rule of law. 

Court of Appeal’s decisions must be open to scrutiny by the Supreme Court so that the law is upheld when the Court gets it wrong. This allows for better judgments, legal certainty and application of the proper law in the lower courts. Placing the criminal law on an equal footing with civil law and ensuring a route to consideration of criminal appeals would also in and of itself send a message to the public that criminal law is no less important than other areas of law and would allow the criminal law to develop with the benefit of the input of the Supreme Court, as it should. This would, coupled with accountability, ultimately lead to renewed confidence in the system.

The Law Commission of England and Wales is currently reviewing the law of criminal appeals  and it is widely anticipated that they will recommend reforms to section 33 of the Criminal Appeal Act 1968 and bring an end to the Court of Appeal’s role as gatekeeper to the Supreme Court. The Hayes and Field cases have guaranteed this – but let’s be clear, the call for reform far predates these cases.