How to challenge the Serious Fraud Office
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Aziz Rahman, of award-winning business crime solicitors Rahman Ravelli, explains the power of the SFO and how to challenge it.
The Serious Fraud Office (SFO) has survived Prime Minister Theresa May’s plans to abolish it, thanks to her less than convincing election win.
So the SFO remains the major agency for investigating the most serious fraud and business crime allegations. It will accept a case for criminal investigation if it meets certain conditions; including whether the alleged wrongdoing harms the so-called “UK PLC’’; the financial and corporate interests of the City of London.
The SFO assigns teams of investigators, accountants, prosecutors, experts and counsel to a case: an approach known as the Roskill model; which differs to the normal UK procedures, where police investigate and then report to the Crown Prosecution Service. Under Section 2 of the Criminal Justice Act 1987 – the Act that created it – the SFO can compel any individual or organisation to provide it with information or documents that it believes to be relevant to an investigation.
Section 2 is a powerful tool for the SFO. As is its ability to offer a deferred prosecution agreement (DPA), whereby a prosecution is suspended if the accused admits the wrongdoing and agrees to meet certain conditions. DPA’s have been reached this year with both Rolls-Royce and Tesco; saving both companies from what could have been hugely-damaging prosecutions – and showing the value of careful negotiation with the SFO.
But although the SFO has many powers, defence teams can still challenge the accusations it makes, any charges it brings or any aspect of the way it conducts an investigation.
For example, if the SFO fails to follow procedural rules when applying for a search warrant, if the warrant is not drafted properly or the search is not conducted in accordance with the law, defence lawyers can apply to have the warrant quashed and any seized property returned.
A high-profile example of how the SFO can get it wrong is the case of Robert and Vincent Tchenguiz. The brothers’ premises were searched and arrests were made but the defence then showed that the SFO had failed to check the credibility of information it presented to the Court when applying for the search warrants. The case ended with the SFO apologising to the brothers and paying them £4.5 million.
It must be remembered that the SFO can be challenged at all stages of an investigation regarding the reliability of the information and material it intends to use as evidence.
Section 21 of the Police and Criminal Evidence Act (PACE) gives people the right of access to any material of theirs that has been seized by the SFO. A defence team can make sure that the investigators cannot hog or refuse to return potentially relevant material. Similarly, the Attorney General’s Guidance on Disclosure (December 2013) laid down guidelines on dealing with the seizure and search of digital material to prevent anyone under investigated being disadvantaged.
A shrewd defence team can also use the law of disclosure to gain access to unused material – material gathered by the SFO which does not support its case but which may help the defence.
A defence lawyer can make representations and arguments to challenge the SFO’s allegations and make it doubt the strength of its case at the investigation stage. This can mean the SFO deciding to end an investigation with no charges being brought.
It must be emphasised that the chances of successfully challenging the SFO are highest if such legal help is sought at the earliest opportunity.
Aziz Rahman is founder of Rahman Ravelli; a top-ranked business crime law firm in national and international legal guides.