On 16 September 2024 at Southwark Crown Court HHJ Rimmer granted permission for Anna Machkevitch to appeal, out of time, her January 2020 conviction, whereupon the SFO offered no evidence and her conviction was quashed and she was found not guilty.
The original prosecution against Anna Machkevitch under section 2(3) Criminal Justice Act 1987 for failing to comply with a notice to produce documents, commenced in June 2019 and was intrinsically linked to the SFO’s criminal investigation of Eurasian Natural Resources Corporation (“ENRC”) which formally commenced on 25 April 2013 and ended in August 2023.
She was requisitioned to attend court shortly after ENRC had commenced civil proceedings against the SFO which followed proceedings brought against Dechert LLP (retained by ENRC) and Neil Gerrard (a partner in Dechert). At the heart of the complaints being advanced by ENRC was that there was an unhealthy relationship between Gerrard and senior members of the SFO, including its then Director.
The civil proceedings brought by ENRC resulted in a lengthy trial in 2021. The claims made by ENRC against Dechert and the SFO were of the most serious kind. As against Dechert, it was alleged that Gerrard acted in gross breach of his duties as a solicitor by, amongst other things, disclosing clearly confidential and/or privileged information to the SFO and expanding the scope of ENRC’s investigations greatly, in order to generate massive amounts of legal fees.
As for the SFO, ENRC claimed that certain of its officers were not merely aware of many of Gerrard’s breaches of duty, but that they actively participated in them. Moreover, ENRC alleged that, but for such conduct on the part of Gerrard and the SFO, the SFO would never have become seriously interested in ENRC at all and that, on any, view, the SFO would never have launched the criminal investigation which it did.
The judgments of the High Court (in May 2022 and, especially, December 2023) changed the landscape of Anna Machkevitch’s case.
Of particular relevance was Waksman J’s December 2023 judgment when he concluded that “but for the SFO’s wrongdoing…the CI [Criminal Investigation] Decision would not have been made. Alternatively (and this would be sufficient in law) the SFO’s wrongdoing was on any view an effective cause of the CI Decision even if there were other causes too”. Furthermore, the SFO were found to be a “vital participant in the overall wrongdoing” and “put shortly, Mr Gerrard needed a “willing audience” and the SFO actively encouraged his wrongdoing”.
Given that Anna Machkevitch’s entire section 2 prosecution was underpinned by the requirement that there must be an investigation, Waksman J’s findings against the SFO nullified the legitimacy of the prosecution against Anna Machkevitch.
And, although arguments of improper motive and bias would have been advanced had the appeal been heard, the SFO accepted that, as a result of the judgment of the High Court, there was no longer any realistic prospect of a conviction and, accordingly, they offered no evidence.
Anna Machkevitch was represented by David Whittaker KC and Gabriele Watts from 2 Hare Court instructed by Namita Pawa, Managing Director of Hallinan Blackburn Gittings & Nott.