I have to admit being a bit fascinated by the row over OFSI issuing a specific sanctions licence or licences to allow a law firm help a sanctioned Russian sue the founder of Bellingcat for defamation, for apparently claiming that the Russian was the foundfer and leader of the notorious Wagner Group – something that the Russian now freely admits, and boasts of. Having previously been responsbile for such licences, drawing them up and advising on whether the Minister should sign and authorise them, there seems to be 3 questions –

What test or tests did OFSI undertake before agreeing to grant, or recommend the granting of, the licence(s)?.

What due diligence did the law firm undertake, as surely it would have been obvious that the Russian was, indeed, founder and head of the Wagner Group, and that he and it had a reputation that would be unlikely to be damaged by anything bellingcat said about him (although, obviously, the lawsuit was just aimed at quietening and bankrupting the victim)?.

At what level was the licence(s) authorised? I note that UK General Licences are just signed “OFSI”. One would have thought a licence, particularly where it involved a potentially highly sensitive matter, would (or should) be authorised and signed (or signed off) by a Minister (and would be backed up by a detailed explanatory brief explaining the need and justification for the licence).

Was it the case that the argument was that the licence(s) was/were necessary in the name of natural justice, that no financial benefit was flowing to the claimant (and any damages would be frozen while the sanctions were in force), and it was for the courts to decide whether the case should be heard?

Is it seen as one of the roles of OFSI to be a cut-out, providing political protection for the Secretary of State and Ministers in the event of any embarassing decision? If so, do not those same politicians frame the policies that OFSI follows?

I know it is said that no-one should be denied legal representation, no matter how reprehensible they may appear, and that the law firm involved had the good grace to withdraw their services following the invasion of Ukraine last year. However, The case does have the appearance of the type of “lawfare” that had become all too common, with those with deep pockets using the too-amenable English courts (Bellingcat, I believe, is based in the Netherlands, but the case was not being brought there) to quieten inconvenient critics or jounalists. This, sadly, is nothing new, as anyone with memories of Robert Maxwell will acknowledge.

25 JANUARY 2023

Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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