Acquitted oil baron wins challenge against further investigation

Tuesday 02 April 2019

A Norwegian oil baron, acquitted of allegations of fraud, has successfully raised question marks over the Attorney General’s continued scrutiny of his affairs, by convincing Jersey’s Royal Court that it contravenes his human rights.

Berge Gerdt Larsen, an oil baron who was cleared of defrauding his own company Larsen Oil and Gas Drilling Ltd. and evading tax by the Norwegian Court of Appeal in 2016, has now won a further victory in the fight to restore his reputation.

Mr Larsen was convicted in Norway for fraud and tax offences in 2013 – charges he was later acquitted of, on appeal, three years later.

In preparation for bringing the appeal against his conviction, Mr Larsen requested that the Norwegian prosecutor gather more information about activity in Jersey between 2009 – 2015. 

This request seemingly raised alarm bells for Attorney General Robert MacRae, as he then served a notice, naming Mr Larsen as a “person under investigation” and asked for documentation relating to shareholders and financial information of several companies including Larsen Oil and Gas Drilling Ltd. in connection with, “...a suspected offence involving serious or complex fraud.”

Pictured: The Attorney General issued a notice naming Mr Larsen as a "person under investigation".

After Mr Larsen was acquitted on appeal of his original convictions, the Attorney General decided that he would maintain the original notice naming Mr Larsen because the documentation procured through it would assist with another investigation. 

Mr Larsen’s lawyer Advocate Justin Harvey-Hills commented: “We are unclear as to why HM Attorney General is maintaining this notice for a purpose clearly different to that for which it was issued.”

Advocate Harvey-Hills added that if the Attorney General wanted to investigate anyone else connected with the companies, “...he should withdraw the notice and issue a new notice to that effect.”

In response, Crown Advocate Howard Sharp argued that there was no obligation for the Attorney General’s notice to be specific about who was under investigation. 

Pictured: The Norwegian oil baron is fighting to restore his reputation.

Mr Larsen then sought permission for judicial review, which is now the subject of a written judgment by Royal Court Commissioner Julian Clyde-Smith who had to decide if the Norwegian national had grounds to challenge the Attorney General’s decision to uphold the notice, regardless of his acquittal.

Arguing against granting permission for judicial review, Crown Advocate Sharp said that Mr Larsen’s legal team had made the application too late and, without a good reason for doing so, it should automatically be dismissed.

But Commissioner Clyde-Smith ruled against the Crown Advocate on this point, finding that Advocate Harvey-Hills brought the challenge well within the three month window, after he was first informed of the Attorney General’s logic for upholding the notice in October 2018.

In his judgment, the Commissioner wrote: “This is not, on the face of it, a case of a suspect seeking to impede or delay an investigation into crimes he is suspected to have committed."

Pictured: The Commissioner's judgment outlines his reasoning for allowing Mr Larsen to apply for judicial review.

“This is an applicant who has been acquitted of the crimes of which he was suspected… it is perhaps understandable that he would assume that following his acquittal the notice would fall away.”

Advocate Harvey-Hills also argued that upholding the notice impeded his client’s human rights to a presumption of innocence and to a private and family life. 

The Royal Court Commissioner ultimately found that there were grounds to bring judicial review:

• Mr Larsen is entitled to his right under Article 6 of the Convention of Human Rights which protects “individuals who have been acquitted of a criminal charge… from being treated by public officials and authorities as though they are in fact guilty of the offence charged.”;
• the notice is a public document which names Mr Larsen as being under investigation and “therefore, directly contradicts and runs contrary to [Mr Larsen’s] Article 6 rights;
• “The Notice also attacks [Mr Larsen’s] reputation by maintaining that he is the subject of a criminal investigation when in fact he has been acquitted”;
• “It is unlawful for the Attorney General to act in a way which is incompatible with a Convention right”;
• “The effect of the failure to withdraw the notice is to question the correctness of [Mr Larsen’s] acquittal.”

Therefore, the Commissioner ultimately ruled in favour of Mr Larsen, finding that there were indeed grounds for judicial review into the Attorney General’s decision.