What you must know if the authorities come knocking
Aziz Rahman, of award-winning business crime solicitors Rahman Ravelli, on how to respond if your premises is targeted by investigating authorities.
Many companies feel they will never be investigated, never mind raided. But raids are used by the authorities more often than you may think.
Yet with the right legal advice, a company can minimise the effect of a raid and prevent investigators overstepping the mark.
Agencies that carry out raids in relation to business crime can, and do, get it wrong; especially if the case is complicated. One example is the case of Vincent and Robert Tchenguiz. The Serious Fraud Office (SFO) had to pay a total of £4.5M plus legal costs to the two brothers in 2012 and apologise for arresting them and raiding premises on the basis of inadequate information that had not been fully investigated.
The challenge is to make sure that, if a raid happens, a company’s staff know their roles. This will make the business more capable of keeping documentation and, therefore, staying fully functional after a raid.
- The harmful effects of a raid can be minimised by having a strategy in place to:
- Retain all relevant materials, including having it backed up.
- Ensure you have comprehensive notes of all questions asked and answers given.
- Keep a schedule of items taken.
- Have your lawyer present should a raid occur. Communications between a company and its solicitors are subject to legal professional privilege – they must remain confidential and cannot be seized.
Investigating authorities must apply for a warrant to raid a premises. Most are issued under the Police and Criminal Evidence Act 1984 (PACE), which lays down rules regarding the application for a warrant and the raid. Failure by the authorities to follow the rules can mean the warrant is quashed, seized property returned and the chances of a prosecution greatly reduced.
Checking that the search warrant was applied for and issued properly and that investigators comply with it is crucial. If the people carrying out the raid are not those named on the warrant or they take items not mentioned on the warrant, there could be grounds for the raid being deemed unlawful by the courts.
Section 21 of PACE gives people rights of access to their material once it has been seized and the Association of Chief Police Officers (ACPO) has issued guidelines on how officers should handle digital material in a raid. The Attorney General’s Guidance on Disclosure has also stated that those carrying out the raid must consider what digital evidence they are likely to find, the possibility of viewing or copying it, the effect on the business of seizing any material and the timescale for returning it.
This is how it should be done. But our experience is that the authorities are not always as swift as they should be when returning computer information that is vital to a company. This is why companies must have all their documentation backed up – so it is still available after any seizure.
The raid is a crucial first stage in an investigation. Responding to it methodically and by using the law will minimise the financial and reputational damage it causes.
Aziz Rahman is founder of Rahman Ravelli; a top-ranked business crime law firm in national and international legal guides.