Julia Irvine 9 Nov 2017 10:59am

Hayes wins application to defer FCA ban

The Upper Tribunal have supported former Libor trader Tom Hayes’ application to defer publication of the Financial Conduct Authority’s (FCA’s) decision against him until the outcome of the review of his conviction is announced

It has also decided to defer the FCA’s application to have his referral struck out.

In August 2015, Hayes became the first former trader to be convicted of charges relating to the manipulation of Yen Libor. He was found guilty on eight counts of conspiracy to defraud and sentenced to 14 years’ imprisonment, later reduced to 11 years.

His appeal against conviction was refused and he has now asked the Criminal Cases Review Commission (CCRC) to review his case.

In October last year, the FCA announced that it had decided to ban him for life from working in the financial services industry on the grounds that he is not “a fit and proper person” as a result of his conviction.

It argued that the conviction was evidence of “a clear and serious lack of honesty and integrity on the part of Mr Hayes, such that he is not fit and proper to perform functions in relation to regulated activities”.

Hayes then referred the decision notice to the Upper Tribunal, as he was concerned that a prohibition order could have an adverse impact on his continuing attempts to overturn his conviction and potentially prejudice a future retrial.

He also pointed out that he did not pose any immediate threat to the public while he remained in prison and argued that it would therefore be sensible to wait for the conclusion of the CCRC’s review.
The FCA told the tribunal that Hayes’ assertion of potential prejudice to any retrial should his conviction be quashed was “fanciful” and fell short of demonstrating a real risk of injustice.

It added that it did not accept that the proceedings should be stayed due to a perceived risk that jurors in any future criminal trial would be unable to try his case fairly if they became aware of the decision notice.

In reaching its conclusion to stay publication of the FCA’s findings, the tribunal took on board the fact that the CCRC had been actively investigating Hayes’ case and a report was due out any time now.

If this found that he had been treated fairly, then the FCA’s ban could go ahead with very little delay. But if the CCRC found that he had been unjustly convicted and there was a retrial that went in Hayes’ favour, then the FCA’s decision would have to be quashed.

The CCRC is a post appeal organisation created under the Criminal Appeal Act 1995 to review cases where a person has been convicted of an offence, and has exhausted their normal rights of appeal, but maintains that they have been wrongly convicted or incorrectly sentenced.