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Allegations levelled at the SFO in ENRC’s various civil claims

What does the SFO stand for, the Serious Failings Office?” Ben Brocklehurst considers the potential impact on the Serious Fraud Office’s long-running criminal investigation into ENRC arising from the allegations levelled at the SFO in ENRC’s various civil claims; one of which is currently being heard in the High Court.

What does the SFO stand for, the Serious Failings Office?

The welter of articles in legal and national press surrounding the current trial of Eurasian Natural Resources Corporation Limited’s (“ENRC”) civil claim against their former lawyers, Dechert, and the SFO leads one to consider what impact it may have on the SFO’s on-going eight (yes 8!) year criminal investigation into ENRC concerning “allegations of fraud, bribery and corruption around the acquisition of substantial mineral assets” (See the ENRC Ltd case entry on the SFO website).

The ENRC investigation, I believe, is the only remaining long-standing case inherited by the
current Director of the SFO, Lisa Osofsky, in relation to which a decision as to whether to bring charges is yet to be made. One can’t help but think that the magnitude and nature of some of the allegations that have been made concerning the SFO’s alleged conduct in ENRC’s claim (and other claims ancillary to it) will give her, and her advisors, pause for thought if even half of them are found to have some substance.

The following are just some of the allegations that have been levelled against the SFO and its
former officers in the various proceedings:

• An inappropriate relationship between the former Partner in charge of the internal
investigation that Dechert conducted for ENRC, Neil Gerrard, and a former Director of
the SFO, Richard Alderman, together with a failure by Mr Alderman to keep a proper
record of the contact between them (this allegation has very recently been given some
credence by the witness evidence of another former Director of the SFO, Sir David
Green, in the ongoing ENRC v Dechert and the SFO trial).
• A failure to properly investigate a “whistleblower” letter received by the SFO regarding
Mr Gerrard and his relationship with the SFO (which contained allegations of criminal
conduct), by Sir David Green.
• An inappropriate relationship between Mr Gerrard and a former Senior SFO investigator
who was later to become the Interim Director of the SFO, Mark Thompson, which
involved the double-deletion of emails by Mr Thompson which related to the ENRC
investigation.
• Covert meetings held between Mr Gerrard and a Senior SFO investigator, Richard
Gould including in pubs/clubs (in relation to this Mr Gerrard, who recently gave
evidence in the trial, was informed by the Judge of his right not answer questions and
incriminate himself – which is extraordinary – in respect of an issue involving Mr Gould
and the s.2 interview of a former ENRC compliance Officer).
• Clandestine meetings held between SFO investigators/employees, including John
Gibson – the SFO’s former Lead Investigator on the ENRC case, and various journalists
including in an underground car park.
• The “endemic” and “systemic” leaking of privileged and/or confidential information to
journalists regarding the ENRC investigation (and other SFO investigations) by SFO
investigators/employees over a period of several years which caused the SFO to make a
report to the Metropolitan Police in relation to the same (again this allegation has
recently been lent some credence by the witness evidence of Sir David Green in the
ongoing trial).
• False evidence being given by Mr Gibson in a previous civil trial in relation to the review
of a different former SFO investigator’s notebooks, Keith McCarthy; and one such notebook covering a key period in the ENRC investigation subsequently being revealed
to have been “lost”.

Numerous Human Rights Groups have accused ENRC of vexatious litigation and “strategic
lawsuits against public participation or (SLAPPs)” designed to undermine the SFO’s
investigation, escape public scrutiny and ‘intimidate and harass critics into silence’. The SFO
have also said in response to ENRC’s claim that it is “speculative” and is an attempt to derail
their corruption investigation.

Whatever your opinion is on ENRC’s motives; what they can’t be accused of is causing the SFO to double-delete emails relevant to their own investigation, meet with Mr Gerrard informally in places such as pubs/clubs, meet with journalists in places such as underground car parks and it would seem, given the SFO saw fit to involve the Metropolitan Police in relation this allegation and Sir David Green’s recent witness evidence, leak confidential information to the press.

It will be very interesting to see what the SFO Officers have to say about all of this when they
come to give their evidence in the trial.

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