Hacking and Human Rights abuses – a toxic cocktail for Dechert’s Neil Gerrard

Hacking and Human Rights abuses – a toxic cocktail for Dechert’s Neil Gerrard

At first blush, the case of Ras Al Khaimah Investment Authority (RAKIA) v Azima may look like just another Middle Eastern dispute being played out in the London courts, especially when the sum in dispute is only a few million dollars – not much for a Sheikh, even one who rules one of the smaller, less affluent Emirates.   

But this case stands out for two distinct sets of allegations. The first involves hacking, which was allegedly ordered by a state-owned entity, while the second concerns serious human rights abuses.

One factor common to both is Neil Gerrard, global co-head of Dechert’s white collar and securities litigation practice. He is alleged to have been involved in the hacking and in personally committing human rights abuses in Ras al Khaimah (RAK), one of the United Arab Emirates (UAE).  Despite a month-long hearing in the Chancery Division, the latter allegation remains unresolved, while the former remains to be tested further in the Court of Appeal.  

Deputy Judge Andrew Lenon QC recently handed down judgment in the RAKIA v Azima case. At issue were claims by US aviation magnate, Farhad Azima, that his emails had been hacked and published on the dark web by RAKIA, the sovereign investment authority of RAK. The Court rejected RAKIA’s explanation as to how it came into possession of the hacked material. However, it found that on the evidence, it was not proven that RAKIA was responsible for the hacking, and upheld a number of RAKIA’s fraud claims against Azima.

The judge concluded: ‘It is not enough for Mr Azima to advance a case that is not impossible. Based on all of the documentary and witness evidence, I was not satisfied on the balance of probabilities that RAKIA was responsible for the hacking of Mr Azima’s emails.’

A TRACK RECORD OF HACKING

Hacking is now an international business, in which London has become a key hub of expertise. Some of this activity also finds its way into disputes heard in the London Commercial Court. Despite the serious criminality involved, hackers and their associates often get away with it. 

In 2012 Dechert was retained by Dar Al Arkan Real Estate Development in a dispute against Majid Al Refai, former CEO of Bank Alkhair, which included allegations of unlawful email hacking. Although Neil Gerrard had already been at Dechert for a year at the time of this case, it is not known whether he was personally involved. Dechert came off the court record after the alleged hacking became a prominent issue in the case, and was replaced by Addleshaw Goddard.

Similarly, in the Azima case, Dechert, who originally acted for RAKIA in the proceedings against Azima, has now come off the court record in favour of Stewarts Law.  However, Gerrard remained a key RAKIA witness.

Neil Gerrard led the RAK investigation team, which included Stuart Page, a private investigator and fellow former policeman. According to email evidence in the Azima case, he was the one to whom Stuart Page delivered the hacked data.

Page was also called to give evidence on behalf of RAKIA, and in his judgment, Lenon J reviewed a catalogue of his past cases, summarising the ‘track record’ of evidence relating to him.

The first of these was Dubai Aluminium v Al Alawi [1998] EWHC 1202, in which a sub-agent engaged by Page had obtained confidential information using pretext calls, which Mr Justice Rix found to be illegal (and which Page accepted was illegal). Page said he did not instruct the subagent to act illegally and was unaware of it at the time.

Lenon J then moved on to another case: ‘Mr Page was associated with the theft of confidential documents by Israeli hackers. Sir Andrew Smith had noted in passing, in the course of a judgment in JSC BTA Bank v Ablyazov [2018] EWHC 259 (Comm) that the claimant bank was contacted in early 2016 by Mr Page who claimed to act for unnamed Israeli hackers who had extracted information from a computer belonging to a Mr Aggarwal, an accountant. Mr Page was asked to approach the Bank to find out whether it was interested in obtaining the information which might be useful in relation to claims brought by the bank.’

Separately, during cross-examination, Page had admitted to employing an Israeli company as an agent to assist him in investigating Azima and his associates. ‘The founder of the company is the former head of the Lebanese desk of Shin Bet and Shin Bet is the Israeli equivalent of MI5,’ he said.

In examining ‘his track record of involvement with other instances of hacking and illegal information gathering,’ Lenon J noted: ‘These cases highlight the fact that Mr Page operates in a world of covert surveillance in which agents acquire confidential information unlawfully and that Mr Page has dealings with such agents. It would be a reasonable inference to draw from these incidents that Mr Page has access to agents with the capacity to hack emails.’

The judge’s overall assessment was unfavourable: ‘I consider that Mr Page was an unsatisfactory and unreliable witness. In the context of the hacking claim, his witness statement was misleading in relation to two significant matters.’ He added: ‘I have concluded that it would be unsafe to rely on any evidence from Mr Page that was not corroborated by some other source.’

Not mentioned by Lenon J, because the judgment was only published in March 2020, Page was also pivotal in a recent Family Court hearing in front of Sir Andrew McFarlane,

President of the Family Division. This concerned the welfare of two children whose parents are HRH Princess Haya bint Al Hussein and her husband, Sheikh Mohammed bin Rashid Al Maktoum, the ruler of the Emirate of Dubai and Prime Minister of the UAE, for whom Stuart Page provides security services.   

Here, the judgment reads: ‘On 20 June 2019 XX had a meeting with SP, a retired police officer who was acting on behalf of the father. SP had unilaterally sought a meeting with XX to discuss “a business interest”, XX had never met SP before and had no real knowledge of the topic for conversation. Early in the conversation XX states: “It soon became very clear to me during the course of the conversation that the intent was to disrupt [services provided to] HRH by threatening myself [and another], implying that we should cease work for our client immediately.” XX was in no doubt that SP’s intention was to deliver a clear threat to damage the reputation of himself and the other individual named by him.’

Azima accused Gerrard of using similar tactics against him, in what was referred to in court as the “collateral damage” meeting, which took place shortly before Azima’s hacked emails were published online.

HUMAN RIGHTS ABUSES

The Azima case also included allegations of serious human rights abuses. In the Middle East, such abuses remain deeply embedded throughout much of the region. They are always shocking, but particularly so when they allegedly involve a well-known London lawyer.  According to the 2019 report from Amnesty International ‘The (UAE) authorities, particularly the State Security Agency (SSA), subjected detainees, including foreign nationals, to arbitrary arrest and detention, torture and enforced disappearance. The authorities also restricted freedom of expression, imprisoning government critics and holding them in dire conditions.’

Dechert has acted for various RAK entities for several years, including RAKIA.  Neil Gerrard, who led the Azima investigation, appeared as a witness for RAKIA, giving lengthy evidence to the High Court. It is the first time that a prominent English lawyer has been involved in allegations of human rights abuses in the UAE.

During cross-examination about his involvement in the questioning of prisoners in RAK, it was alleged that Gerrard undertook aggressive, unlawful interrogations of detainees under inhumane conditions – a claim which he has consistently denied and continued to deny in court.

Notably, some other findings in the judgment are highly relevant to additional claims of torture by Karam Al Sadeq, who has brought a separate High Court case against Dechert and Neil Gerrard. Alongside a current and a former partner, Caroline Black and David Hughes, they are accused of torture. Al Sadeq claims that he was kidnapped, interrogated and placed in solitary confinement during an investigation conducted by Dechert into RAKIA.

On any view, Al Sadeq’s recently filed claim against Dechert, Gerrard, Black and Hughes is shocking. It includes allegations of torture, inhumane treatment, arbitrary detention in solitary confinement for 560 days under a false name in inhumane conditions, physical and psychological harm, unlawful search, deprivation of contact with family, denial of the right to a fair trial, abduction from Dubai and illegal rendition to RAK.

For example, Al Sadeq’s Particulars of Claim include the following: ‘On one occasion Mr Gerrard or Mr Hughes (who were together at the time) said to Mr Al Sadeq that his refusal to provide the necessary “cooperation” meant that “Things will be prolonged for more years, now we have to go back [to the UK] for Christmas and New Year and this will only leave you in this shit place you are in for another two months, maybe you will be forbidden from taking a shower. Or maybe we will ask them to show you the sun for a bit.”’

During cross-examination in the RAKIA v Azima hearing, it was put to Neil Gerrard that he interrogated Al Sadeq whilst he was detained without charge, and without his lawyer being present. According to the judge, Gerrard did not succeed in disproving these allegations.

On the evidence, his judgment stated: ‘In order to make good its case that Mr Azima procured and promoted false stories in the media, it was incumbent on RAKIA to establish that the stories which it was intended to publish about human rights violations were untrue. It has not done so. It appears that [Azima] intended to draw attention to actual cases of detention and illegality, not fabricated cases. The 2014 Amnesty International Report indicates that there were real grounds for concern about detention procedures in RAK. None of RAKIA’s witnesses were in a position to refute the findings in that report.’

In February, Neil Gerrard was named in a complaint sent by Al Sadeq to the Solicitors Regulation Authority, which is now examining the allegations.

In a further twist, Al Sadeq’s Particulars of Claim state that “In the course of their stay in Dubai Mr Al Sadeq’s UK legal team became aware that they were under surveillance by a number of intimidating individuals from RAK security and by the UAE-based surveillance firm, Page Security, run by a Mr Stuart Page.”

A spokesperson for Azima confirmed that his appeal preparation is underway. Dechert’s defence in the Al Sadeq case is due on 30th June.


Dominic Carman

Written by:

Dominic Carman, journalist, writer and legal commentator. www.dominiccarman.com

Author: Dominic Carman