This past weekend Peter O’Toole died. He was one of the foremost actors of his generation, garnering eight Oscar nominations. He also starred in one of my favorite movies of all-time-Lawrence of Arabia. Last week, before O’Toole passed away, the UK Serious Fraud Office’s prosecution of Victor Dahdahleh also died when the SFO notified the Court that it did not believe a guilty verdict was possible due to some very odd in trial machinations. As you might expect, thebriberyact.com guys, Barry Vitou and Richard Kovalevsky QC, wrote about it in their blog, thebriberyact.com. Rather than summarize their thoughts, I asked them if I could re-post their original piece, which they graciously allowed me to do.

Key question for SFO after Dahdaleh collapse

The collapse of the SFO case against Dahdahleh represents a low point in a bad year for the SFO.

The continuing fall out from the botched Tchenguiz investigation (where the SFO is being sued), finding lost SFO documents relating to the BAE Systems investigation in a Cannabis warehouse in East London and now this all put the SFO in the headlines on the front page, again, for all the wrong reasons.

The new Director is doing his best to fix the SFO.  The question some in Whitehall will be asking now is: can it ever be fixed?

The Dahdahleh case was a high profile prosecution and there will be a post mortem.

Two key pieces to the puzzle

The SFO in its Press Release identified two key points.

First, a key witness, who had already pleaded guilty, changed his tune.

In the words of the SFO: “Bruce Hall pleaded guilty and gave evidence for the prosecution. The account he gave in court differed markedly from the witness statement he had provided to the SFO.”

If you bring cases to trial there is always a risk that witnesses can change their story or crumble under cross examination.

You win some.  You lose some.

David Green has repeatedly made the point that because of the very nature of its work there will always be the risk of losing cases.

That is all part and parcel of the rough and tumble of litigation.

Though the SFO badly needs some more of the ‘You win some’ and less of ‘You lose some’.

Reliance on information obtained from third parties

Second, press reports say that reliance was placed on information received from Akin Gump a law firm representing Alba which in turn is involved in a ‘hotly contested’ civil law suit against Mr. Dahdahleh.

The SFO said in its Press Release yesterday that “Two key witnesses from the USA were unwilling to attend trial in the UK and face cross-examination. That impacts on the fairness of the trial as well as the prospects of conviction.”

In its more detailed statement to the Court the SFO said:

“Secondly, we have the unwillingness of two witnesses to face cross-examination. That impacts both on the fairness of the trial as well as the prospects of conviction.

Since last Thursday, yet further contact has taken place with Akin Gump, the lawyers for Aluminium Bahrain, or “Alba”, to secure the attendance of these two American witnesses, Mark MacDougall and Randy Teslik who are both partners in that firm. As you will see from the correspondence, they have attempted to place limits on the extent to which they can be cross-examined.  The Serious Fraud Office does not believe it would be appropriate to attempt to persuade the court to agree to such limits nor, given your comments last week, that they should appear via video-link.

The Defence have raised issues questioning Akins Gump’s role in the provision of assistance to the Serious Fraud Office both as to what their motives may have been in the dissemination of material and assistance as to witnesses who could provide relevant information, this in the context, as accepted by the defence, of the Serious Fraud Office acting in good faith. The attendance of the two American witnesses would have allowed this aspect of the case to be ventilated before the jury. Their refusal to attend creates a situation where it is clear that the trial process cannot remedy the position and we accept unfairness now exists for the Defence.

In seeking to secure the attendance of these two witnesses – who have previously attended court on every other occasion when their attendance has been required – the Serious Fraud Office has taken every available step, including a direct telephone conversation between the Director of the Serious Fraud Office and the chair of Akin Gump.

Not every unfairness necessarily leads to trials being discontinued, particularly where there is other evidence and taking into account the public interest in pursuing serious crime. After careful consideration of all of the circumstances of the case the Serious Fraud Office has concluded that there is no longer a realistic prospect of conviction in this case and accordingly we offer no evidence.”

The SFO will always need to rely on evidence from others in order to bring cases and those parties may have a variety of motives for supplying it to them.  The fact here is that questions over those motives led to the collapse of the case.

The question for the SFO is did it take reasonable steps to prevent the possibility of the collapse happening in this case.

While I do not pretend to understand the nuances of British criminal trial procedure, I have some experience trying cases and you always have to expect the unexpected. Even if that means a key witness becomes adverse to your position or indeed his or her prior position in negotiating a plea agreement. That is the reason you have the prior statements memorialized so that they can be used against the interest of the witness, if required. The actions of the law firm Akin, Gump would seem to be more problematic. In the UK, there appears to much criticism of the SFO for using materials developed by Akin, Gump. While, I do not find that conduct troubling, if you are going to rely on a third party for any evidence, you had better be assured that they will show up at trial to prove up such evidence. If it turns out that Akin, Gump went back on its word and did not provide the testimony that it agreed to, that is another story. Lastly, for all those who criticize prosecutors who lose cases, I only have one thing to say, “If you have never lost a case, you have never been to the courthouse.”

So good-bye to Peter O’Toole, good-bye to the SFO prosecution of Victor Dahdahleh but as Barry Vitou reminded me, assured it is not good-bye to the SFO, although I bet it is looking forward to the new year a bit more than most of us.