This note explains how to respond if the Serious Fraud Office (SFO) seeks to execute at your premises a search warrant issued under section 10 of the Serious Fraud Office Act 1990 (Act).
- Ask the lead officer to produce identification, and a copy of the search warrant.
- Ask the lead officer if he is willing to wait until your legal adviser arrives. (He does not have to wait, and is unlikely to do so.)
- Contact senior management, and your Bell Gully legal adviser.
Check that the search warrant:
- states that it was issued pursuant to section 10 of the Act (it may also have been issued pursuant to section 6);
- states that it concerns an investigation into the affairs of a specified person (which may not be your organisation) or a suspected offence;
- is directed to the lead officer (it may be directed generally to every constable and/or every designated member of the SFO);
- states that it was issued in respect of your premises;
- was signed by a judge less than 14 days ago;
- is being executed at a time that is reasonable in the circumstances;
- has not previously been executed.
If the lead officer does not produce a valid search warrant, advise him that the search cannot lawfully proceed at that time. If in any doubt, obtain legal advice.
During the search
- Deal with the investigating team co-operatively and with as little aggression as possible. It is important to establish early a working relationship that will assist in achieving a cross-flow of information.
- Inform your colleagues of the search, and read out general points 1, 2 and 3 (see over) so that they are aware what the investigating team is allowed to do. This can be done conveniently in a group, with the investigating team present.
- Assign a representative to stay with each member of the investigating team during the search, and take notes (especially in relation to any searching or cloning of computers). Advise the investigating team to whom they should refer any enquiries.
- Ask the lead officer to confirm that each member of the investigating team is authorised to be present, and to provide a list of their names.
- Ask the lead officer for particulars of the allegations: what, when, by whom, who complained? (He does not have to provide you with these details at this stage, and is unlikely to do so.)
- Ensure that the search is carried out in accordance with the terms of the search warrant, and with general points 1, 2 and 3 (see over).
PRIOR TO DEPARTURE OF INVESTIGATING TEAM
- Request an inventory stating which documents or other things are to be removed from the premises, and from where (the inventory may describe those documents or things in groups). If it is not practicable to provide that inventory before departing, it must be provided within 7 days. Check the inventory before accepting it.
- Advise the lead officer in respect of any items on the inventory over which you wish to claim legal privilege. See general points 1, 2 and 3 (see over) for further comment on this.
- Confirm who is in charge of the matter overall, and to whom any further enquiries should be addressed; likewise advise the lead officer to whom in your organisation he should refer any further enquiries.
FOLLOWING DEPARTURE OF INVESTIGATING TEAM
- Prepare a written summary of the events, attaching copies of the search warrant and inventory.
- Consider your organisation’s other needs. Do you need to issue a press release, make disclosure, or contact clients? Do you need to convene a Board meeting? Do you need to initiate an internal investigation?
Seek legal advice on follow-up action regarding:
- possible challenges to the validity or execution of the search warrant;
- determination of any claims to privilege;
- requests for confidentiality;
- the return of any documents or things such as equipment removed during the search, or copies thereof (this must take place as soon as practicable after the search);
- further details of the allegations
- In summary, the investigating team can:
- enter and search the place specified in the search warrant;
- use such assistance as is reasonable in the circumstances;
- use such force as is reasonable in the circumstances to gain entry to premises and break open anything;
- search for and remove any documents or other things that the person executing the search warrant believes on reasonable grounds may be relevant to the investigation, or may be evidence of any offence involving serious or complex fraud (including material that is confidential to your clients or customers);
- take copies of any documents the person executing the search warrant believes on reasonable grounds may be relevant to the investigation;
- require any person to reproduce or assist an officer to reproduce information stored in any document.
“Document” is defined broadly and includes written material, films, photographs, and computers or other devices (which means that the investigating team may be able to seize or clone computers, servers, mobile phones, tablets, USB drives etc.).
- Generally, a search warrant will not allow the investigating team to:
- require individuals to answer substantive questions;
- search areas other than those identified in the search warrant, e.g. if the search warrant was issued in respect of the head office of X Ltd, the search cannot extend to areas occupied by Y Ltd (even if the two companies are related);
- seize any irrelevant or privileged material other than in strict compliance with conditions imposed by the search warrant, e.g. the search warrant may state that if you make a claim of privilege in respect of any hard-copy document or any material stored on a computer or other device, the SFO may seize that material provided that it is then placed in a sealed envelope pending determination of your privilege claim;
- require any further documents or information from your organisation (the SFO will need to serve a separate notice requiring other documents or information to be provided).
- There are substantial penalties for intentionally resisting, obstructing or delaying any person executing the search warrant(imprisonment for up to 3 months, or a fine of up to $5,000).