Why could Mike Lynch be suing the UK Serious Fraud Office?

01 Feb 2024, 55 mins ago

Background

On 12 May 2023, Gherson’s financial crime, investigations and regulatory team wrote a blog describing how Autonomy founder Mike Lynch had been extradited to the United States.

This followed years of legal battle in the UK, during which numerous interesting legal issues were raised.

This is an fascinating case with many compelling issues, some of which we explored in our recent blog Mike Lynch extradition and cross-border allegations.

In another twist, it has now been reported that Mike Lynch (“Mr Lynch”) is suing the UK Serious Fraud Office (“SFO”). 

We shall now look into the potential reasons for this.

Case against the UK Serious Fraud Office

Following his extradition to the United States (“US”), Mr Lynch is now facing criminal fraud charges there. 

However, it appears that his litigation in the UK is still ongoing, as it has now been reported that Mr Lynch has filed a data protection claim in the London High Court against the SFO.

In 2013, the SFO initially investigated Mr Lynch, however, in 2015 it closed the investigation on the basis that there was not enough evidence to secure a conviction. The US authorities then took over aspects of the case.

Indeed, this is not the first time that the SFO has dropped a case only for the US to seek extradition and ultimately prosecute the individual there. In fact, this is an issue we have examined in an earlier blog, entitled the potential imbalance between the US and UK criminal jurisdictional reach for financial crime offences.

Although details of the claim are still unclear, it will likely focus on how the SFO used data relating to Mr Lynch when he was being investigated by them, and/or a request for copies of such data.  The claim could include a request for such data and/or an allegation that the SFO misused data relating to Mr Lynch (i.e. that breach the relevant UK Data Protection rules).

Material sought (or contested) could include correspondence, and even evidence, concerning Mr Lynch, which was exchanged between the UK and US authorities. 

However, investigating authorities are given pretty broad remit with regards to what they can do with the personal data of individuals they are investigating.  Specific rules apply to sharing this data with overseas authorities.

Ultimately, the purpose of Mr Lynch’s claim will likely be to obtain material which will assist with defending the case against him in the US.

Will I be extradited?

Gherson often receive calls from individuals (based either inside or outside the UK) who have outstanding criminal matters, or concerns about potential outstanding criminal matters, in another jurisdiction.  In extreme cases, this could be another jurisdiction in which the individual has not set foot but is alleged to have committed a criminal act.  These individuals are now gravely concerned that they may face extradition to the other jurisdiction.

To be in this situation accompanied by uncertainty and  not knowing is understandably extremely stressful.  Arrest and removal to a potentially faraway jurisdiction is undoubtably a traumatic and unsettling process, and even more so if ties have developed in the country from which the individual is being sought. 

As such, individuals in this situation predominantly have three concerns:

  • what is the risk of my removal to another jurisdiction;
  • what pre-emptive and/or preventative steps can I consider; and
  • could INTERPOL be involved.

Before giving effective advice to someone in this situation, it is first necessary to ascertain the specific factual situation and then consider numerous factors.  At a very high level, some of these key factors that could be applicable are now considered.

What is the risk of my extradition to another jurisdiction?

Which country is seeking my removal? Although one should never rule out the possibility of extradition, the risk of it actually occurring can vary depending on the country seeking the individual.  This is because arrangements between countries are governed by numerous international treaties and agreements, and the potential determinate factors in any removal will differ depending on the countries involved.  For example, the UK has extradition arrangements with over 100 countries. However, the risks of facing removal to each of these countries is not identical.  For example, the impact that any human rights arguments can have will vary country-to-country.

What offence does the outstanding criminal matter relate to? Very broadly, the more serious the offence, the more likely that an extradition request will be issued (and be successful).  Indeed, there are certain rules regarding proportionality and minimum sentences that have to be imposed before requests are allowed.  Very generally speaking, the offending behaviour must normally be a criminal offence in both countries.

What pre-emptive and/or preventative steps can I consider?

Should pre-emptive notification be given? It is sometimes advisable toconsider initiating contact with the relevant authorities in the country where an individual is located.  This may show a willingness to engage with any extradition process, which may affect determinations on issues such as bail.  However, individuals are strongly advised to obtain expert legal advice before making any contact with the relevant authorities.

Can the matter concurrently be dealt with at source?  An effective strategy can be to simultaneously attempt to deal with any criminal matter at source (i.e. in the country seeking the individual).  Often, lawyers will already have been engaged in the jurisdiction requesting the individual.  Further engaging these lawyers (either before or during any extradition proceedings) to concurrently attempt to resolve the criminal issue at source can be a wise move.

Could INTERPOL be involved?

Finally, individuals will want to know how INTERPOL can be involved.  Indeed, a country may issue a request to locate an individual through INTERPOL before issuing an extradition request; however, this is not a prerequisite (i.e. an individual can face extradition proceedings even if they are not subject to INTERPOL measures).   If you require more information, Gherson have previously written a series of blogs designed to assist those who fear they might be subject to INTERPOL measures (including a Red Notice):

Gherson has decades of experience in assisting with all aspects of INTERPOL and Red Notice challenges, extradition requests, complex asylum claims, and where the three intersect.

Please do not hesitate to contact us for advice, send us an e-mail or, alternatively, follow us on XFacebookInstagram or LinkedIn to stay-up-to-date.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2024