The ex-KGB agent, the poisoned tea and the King & Spalding lawyer seeking justice

6 minute read

King & Spalding's legal offices in Manhattan, New York City. REUTERS/Andrew Kelly

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If James Bond were a lawyer, his practice might look something like Ben Emmerson’s.

The London-based King & Spalding partner just won a groundbreaking case (at least in principle) on behalf of Marina Litvinenko. Her husband Alexander, a former KGB agent who was granted asylum in the U.K., died in 2006 of polonium poisoning after drinking tea in London with two acquaintances visiting from Russia.

It’s not the first headline-grabbing case for Emmerson, who was portrayed by Ralph Fiennes in the 2019 movie “Official Secrets,” about British intelligence whistle-blower Katharine Gun.

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He’ll be appearing on the small screen in a just-announced four-part ITV series about the Litvinenko case. Stephen Campbell Moore (“The History Boys,” “Downton Abbey”) is cast as the international public law barrister.

Emmerson is even rumored to have been the inspiration for the gruff-but-heroic human rights litigator Mark Darcy in “Bridget Jones’ Diary.” He denies it (he told me he's never even met author Helen Fielding), but just the fact that it seems plausible says much about him and his work.

King & Spalding partner Ben Emmerson. Photo courtesy of King & Spalding

I had the chance to catch up with Emmerson for a broad conversation about his move to King & Spalding from Monckton Chambers in November 2020, his practice at the intersection of public international law, litigation and corporate risk management, and the Litvinenko case, which was decided by the European Court of Human Rights in Strasbourg last week.

“It’s the first time Russia or any other state has been held liable in international court for a politically sponsored assassination,” he said of the 6-1 decision. (The Russian judge, Dmitry Dedov, dissented.)

At the same time, Emmerson called the monetary award – 100,000 euros for non-pecuniary damages and 22,500 euros for costs– “disappointing.”

He’d asked the court to set a new precedent by also awarding punitive damages, but the majority declined, writing without elaboration that they found “no reason to depart from the established case-law.”

Emmerson, who is litigating the case pro bono, told me he plans to appeal the damages decision to the body’s Grand Chamber.

Rather than giving Russia “a rap over the knuckles, (the punishment) should be a very hard punch in the face,” he said.

A 100,000-euro penalty becomes an operational cost, he added, not a deterrent. “In order to make an impact, it should be a figure that shows up in the Kremlin’s annual budget.”

In a press briefing, Russian Foreign Ministry spokeswoman Maria Zakharova faulted the court for “cultivating an atmosphere of Russophobia” and said: “We cannot understand the position of the court, which, as a matter of fact, has decided to rubber-stamp the obviously politicized and dubious from a legal viewpoint, to say the least, conclusions of the national judicial body of a council of Europe member country.”

Founded in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights, the court in its Sept. 21 decision laid out a damning series of events beginning when Litvinenko, while still in Russia, went public with allegations that he’d been ordered to look into assassinating a wealthy businessman.

Litvinenko and his wife fled to the U.K. in 2000 and became British citizens in 2006, changing their names to Edwin and Maria Carter. From abroad, Litvinenko continued to write and speak about corruption in the Russian intelligence services.

In late October 2006, he met with longtime acquaintance Andrei Lugovoy -- who, per the court opinion, is a former KGB officer -- and a friend of Lugovoy’s named Dmitry Kovtun, in a London hotel bar for tea. Litvinenko said the pot was already on the table when he arrived.

The next day, Litvinenko became ill with vomiting, abdominal pain and bloody diarrhea. He died three weeks later of acute radiation syndrome caused by very high levels of polonium 210, a rare radioactive isotope. He had to be buried in a lead-lined casket to avoid contaminating the ground, Emmerson said.

British investigators reported finding traces of polonium in Lugovoy and Kovtun’s hotel rooms, on their seats in a London soccer stadium where they’d watched a match, in a restaurant where they’d eaten, in the airplane they flew on – and the teapot.

“They left a polonium trail like Hansel and Gretel,” Emmerson said.

However, Russia declined to extradite either man to face murder charges. Lugovoy, who went on to become a member of the Russian parliament, in a 2007 press conference denied any involvement in the poisoning and blamed British secret services for the killing.

The judges at the European Court of Human Rights in the majority decision rejected Russia’s argument that there was no basis for criminal liability, writing that it “has been established, beyond a reasonable doubt” that Lugovoy and Kovtun poisoned Litvinenko and that they were acting on behalf of Russia.

“There was no evidence that either man had any personal reason to kill Mr. Litvinenko and it was not plausible that, if acting on their own behalf, they would have had access to the rare radioactive isotope used to poison him,” the court found.

In litigating the case pro bono, Emmerson said he was heartened by King & Spalding’s support. With more than 1,200 lawyers, including 65 in London, it's far bigger than his prior firms, which include Matrix Chambers and Doughty Street Chambers.

He said he was drawn to King & Spalding, which he joined 11 months ago as global head of its public international law practice, for its robust international arbitration practice and expertise in handling disputes between investors and sovereign states.

While much of Emerson’s experience, including serving as UN Special Rapporteur on counter-terrorism, has involved matters stemming from violence or armed conflict, he sees deeper roots in the disputes.

“There’s usually an economic or resources-based problem at the heart of it,” he said.

“There was a sense for a long time that commercial lawyers were one group and international lawyers were another,” Emmerson continued. But in moving to Big Law, he sees an opening to combine the two in “a crossover between the commercial and the political.”

(Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.)

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Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com