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.