What to do after a raid by the Serious Fraud Office?

Many of the SFO’s most notable recent investigations have begun with dawn raids, so-called because they normally occur very early in the morning. These raids can be a disorientating and uncomfortable experience in themselves, but as we explain further below, unfortunately they normally signal the beginning of a major SFO investigation. The period between arrest and charge – which can be lengthy in complex white-collar crime investigations – is absolutely critical. So, what should you and your legal team be doing in this period?

It is often said, because it’s true, that in this country it is for the prosecutor to prove their case.  However, if you are to have any chance of avoiding being charged it is essential that your legal team does not sit back while the SFO builds its case. You need a pro-active legal team that moves at pace to understand the issues, get on top of the key evidence and engage effectively and constructively with the SFO case team.

The Raid Itself

The SFO almost invariably conducts raids alongside colleagues from either the Metropolitan Police, the City of London Police or the NCA. This means that you may face the unpleasant experience of being woken up by a relatively large team of SFO investigators and police officers knocking at your door to make an arrest and seize material such as computers, servers, notebooks and other hard copy documents. 

Many people will rely on the expert advice of a duty solicitor for the interview under caution at the police station. Once police bail has been secured and you return home, following what is likely to have been a very difficult morning, the next stage begins. The Serious Fraud Office is a sophisticated organisation, designed specifically to investigate white-collar crime. Prior to conducting a raid, it will likely have assembled a team of senior lawyers, experienced investigators and, where necessary, forensic accountants. This team will have formed an initial view of the case and will be itching to start reviewing the material that has been seized as part of the dawn raid.

Immediate issues

These are some of the first issues that you may wish to discuss with your legal team:

1. Can we draw any conclusions from the interview under caution? There is a good chance that on the expert advice of a duty solicitor you provided “no comment” to the questions put to you by the SFO. However, the questions asked of you in interview may provide the first indication of what the SFO’s early case theory may be. It’s important therefore to try and get hold of a record of the interview and to review it carefully with your lawyers.
2. Do I provide the SFO with the passwords to my devices? The answer to this question depends in part on the legal powers the SFO purports to use to gain this information. But there is also a strategic element. It might take the SFO a lot longer, but in many cases it can access mobile phones and hard drives even if it has not received the passwords or PINs. Serious thought therefore needs to be given to whether or not there is merit in voluntarily providing passwords and PINs so as not to prolong the life of the SFO’s investigation (many of which have lasted between three to five years before charging decisions are made).
3. The SFO seized privileged documents, or documents that have nothing to do with what they are investigating? The SFO has an obligation to sift out privileged and irrelevant material but, again, there is a tactical decision to be made as to the benefits of engaging with the SFO’s case team on these issues to best ensure that privileged and non-relevant material is excluded from review. In certain cases, after careful consideration and having taken expert legal advice, you may even want to go further and direct the SFO case team to documents that you think will help your case.
4. I need my phone or my laptop, can I get it back? The seizure of items can give rise to a range of practical issues. These can often be as simple as a laptop has been taken that belongs to another family member, or the desktop computer used by the family to complete homework was seized. The SFO may have been able to seize the device and copy its contents, but it cannot hold onto it indefinitely. It is possible to apply to the Court for an order requiring return, however, experienced solicitors who have built up a rapport with the case team are much more likely to orchestrate the return through engagement rather than adversarial litigation.

Equality of arms

One of the key considerations for someone who has been arrested in a dawn raid and had material seized is how to establish some equality of arms between you and the team at the SFO. It is unlikely that an individual will ever be able to match the SFO in terms of the number of professionals reviewing and analysing material, but you do have one big advantage: in most cases the material seized is material you have seen before, perhaps emails you sent or received, or notes that you have taken. The SFO is faced with the daunting task of working out what of this large cache of material even relates to the matters they are investigating before they can even begin their review. You are likely to have a much better handle on where the relevant material lies.

It is important therefore that your legal team has experience working with large amounts of electronic material and is sufficiently well-resourced to efficiently and effectively get to the documents that matter.

In complex white-collar matters, you need lawyers who are used to quickly getting through vast amounts of material to get to the heart of a case.

Your lawyers will also want to discuss with you how best to build exactly the right team of professionals to get the best outcome. Depending on the case, you may be advised to retain forensic accountants or IT experts. Legal advisers who regularly advise on SFO investigations will have a good network of trusted professionals that they can bring onboard.  

Proceeds of Crime

It is an unfortunate truth that proceeds of crime proceedings often follow hot on the heels of a dawn raid. The SFO is adept at using the various powers available to them under the Proceeds of Crime Act to “freeze” accounts and prevent people from disposing of their assets. The SFO do this in order to prevent funds, which to their mind represent the proceeds of criminal activity, from being dissipated. The SFO wants this money to be kept safe whilst it conducts its investigation so that should it prevail at a criminal trial it can compensate the victims of the fraud.

Proceeds of Crime Act proceedings can have a devastating effect on your lifestyle. It is essential that your lawyers have experience in this challenging and technical area of law and are able to achieve the best possible outcome for you.

Funding  

This topic appears at the end but we appreciate that it is likely to be at the forefront of the mind of anybody who has gone through the difficult experience of an SFO raid. There is no shying away from the fact that SFO investigations can be long and the fees of professional advisers can quickly mount-up. However, if your lawyers are experienced at representing individuals in these kinds of cases, then they can help you understand the funding options available for you.

FURTHER INFORMATION

Should you have any questions about any of the issues covered in this blog, please contact Caroline Day, Alun Milford or another member of our Criminal Law team.

Don’t forget our seven-point Fraud Health Check which is intended to help general counsel and in-house legal teams assess how ready their teams are to deal with the challenges of fraud.

ABOUT THE AUTHORS

Alun Milford is a Partner in the Criminal Litigation team and specialises in serious or complex financial crime, proceeds of crime litigation and corporate investigations. He has particular knowledge and experience of issues surrounding corporate crime and deferred prosecution agreements. He joined Kingsley Napley from the public sector where, over a twenty-six year career as a government lawyer and public prosecutor, he worked in a wide variety of roles including General Counsel at the Serious Fraud Office, the Crown Prosecution Services’ Head of Organised Crime, its Head of Proceeds of Crime and Revenue and Customs Prosecutions Office’s Head of Asset Forfeiture Division.

Caroline Day is a Partner in our Criminal Litigation team. Caroline specialises in complex fraud and financial crime. She acts in cases of serious fraud, money laundering, corruption and cartels and has advised individuals and companies subject of investigations and prosecutions by various agencies including the Serious Fraud Office (SFO), the Financial Conduct Authority (FCA), HM Revenue and Customs (HMRC) and the Competition and Markets Authority (CMA) (formerly the OFT).