Recent statistics show investigators taking a harder line and conducting increasing numbers of searches with the Serious Fraud Office more than tripling the number of searches it conducted in connection with ongoing investigations in the 12 months ended 31, March 2018.
Searches by law enforcement investigators, including dawn raids, are inherently intrusive and are often used by law enforcement as a tool in its investigation of suspected crime.
They are separate and distinct from the use of compulsion powers, for example, the use of Serious Fraud Office (SFO) Section 2 powers. The power to search and the power to compel production are different and should not be confused. Occasionally, law enforcement have been known to use ‘here and now’ compulsion powers, where there are fewer safeguards, in lieu of a search turning up at premises unannounced and demanding documents.
If in doubt, seek urgent legal advice.
What is a search?
A search is heralded by the unannounced arrival of law enforcement at the premises of a company or individual, or both simultaneously with investigators exercising legal powers to conduct a search.
The element of surprise is key to guard against the removal of evidence or disappearance of suspects.
During the search, law enforcement has power to seize and retain material, including computers, mobile telephones, files, etc. Broadly speaking, law enforcement cannot seize material which is subject to Legal Professional Privilege.
When can police/investigators conduct a search?
In most cases, court approval (an important safeguard) is required before investigators can conduct a search. However, police have post-arrest powers to search the premises where the person was arrested or where the person arrested was immediately before their arrest.
If there is a flaw in an application for a search warrant, for example if one has been obtained by police without proper disclosure, this will need to be challenged as soon as possible after a search so that if any material has been wrongfully seized it is returned as soon as possible.
How to Prepare
In the same way that businesses conduct fire drills, businesses should consider implementing a dawn raid/search policy and providing staff with basic training on how to deal with a search.
Policies and training should, just like a fire drill, be checked/tested every year or so. GT is available to assist, review, and update your search policies as needed.
Tips for Dealing with a Search/Dawn Raid
- Keep calm and be courteous to the police/officials. Upon arrival, show investigators into a meeting room away from reception and other working areas and offer them tea/coffee.
- Obtain investigators’ business cards and request to see their identification.
- Obtain a copy of the search warrant or, if there is none, ask the police/officials to explain the legal basis upon which they propose to search (e.g. post-arrest powers – see above).
- Contact external lawyers and senior management of the business. External counsel may be able to provide real time advice over the phone.
- Identify a senior member of the team to be the contact person for investigators.
- Assuming external counsel have been contacted, inform investigators that counsel is on its way.
- Ask investigators if they would delay their search until counsel can be present; if they refuse, do not obstruct; instead arrange for the search team to be monitored/shadowed.
- Keep a note of what investigators say and make a list of documents requested and materials seized, along with a written record of where investigators go and what they look at.
- Separate materials protected by Legal Professional Privilege. Inform investigators those materials are privileged. If investigators insist on seizing them, inform them that they are taking privileged materials and that they must be kept isolated, sealed (‘blue bagged’), not looked at by the investigating team, and returned.
- If asked questions, ask investigators if you are obliged to answer and clarify on what legal basis they are asking. Investigators may exercise a right to compel answers in which case they should notify you. On a search, questions should be administrative (e.g. “where is x?” etc.). A suspect subject to an interview under caution (equivalent to a United States Miranda warning) has the right for legal counsel to be present and to remain silent (“no comment”) at interview.
- Assuming that legal representation has been obtained inform investigators that you/employees are represented by counsel and would like to speak to counsel.
- Ask for a list of seized items.
Examples of What NOT to Do:
- Be hostile or obstructive.
- Destroy, delete, or hide any documents or information.
- Tip off anyone about the search.
- Agree to sign any consent to search or similar without speaking to counsel.