Investigations into corporate crime by authorities often lead to dawn raids being carried out in both businesses and residential premises. During the raid which will be carried out under a warrant, the authority may only search the exact area specified in the warrant and they must only seize items within the scope of the warrant. It should be noted that certain categories of material cannot be seized without additional authorizations being obtained, these include confidential journalistic material and personal records created in the course of business.
Legally privileged material cannot be seized unless it was created with intention of the furtherance of a crime or when it is the case that the material in question is linked to other seizable material. The Criminal Justice and Police Act 2001 states that any such material allows a company to have a corporate legal representative present at the review of the material and also allows for an application to be made to the judge for the material to be returned.
It should be noted that where there are ‘significant’ errors in either the process of obtaining the warrant or authorising a raid or while the raid is being executed then the raid in question can be challenged by judicial review and any material seized may be rendered inadmissible. For more information on the above click this the link.
Legally privileged material cannot be seized during a dawn raid unless the crime-fraud exemption applies or in circumstances where the documents or data in question are inextricably linked to other seized material. Due to this it is important that you are aware of where any legally privileged material is likely to exist so that assertations are in place before items are seized.
Whether or not you believe your company is to be the subject of a Dawn Raid, you should always have procedures in place for dealing with them, so that in the unfortunate event of one taking place you are not caught completely off guard. These procedures should also be regularly updated and revised so that you are best prepared.
Which authorities carry out dawn raids?
In the UK there are different types of authorities that have the ability to conduct dawn raids. These include the Serious Fraud Office (SFO), the Office of Fair Trading (OFT), the European Commission and finally sector regulators such as Ofgem and Ofcom.
What are the penalties for failing to comply?
Dependant on the way in which you fail comply as well whichever investigating body is in charge of the raid, will determine the type of penalty that you receive. Criminal penalties can be applied for acts such as providing false information or destroying documents as well as civil fines.
What should you do if your company is the subject of a dawn raid?
Preparing for a dawn raid
A dawn raid, no matter the size of an organisation is always stressful, this stress can be further exaggerated when they are not prepared for. Lack of preparation is risky with the possibility of significant criminal and financial penalties. It is within your organisation’s best interest to establish a plan of action detailing how you will handle a raid as well as understanding the process that will take place.
1) The first point of action should be constructing a dawn raids response team. The team should be headed by a leader, preferably the data protection officer or a senior member of management. Also, within the team, where possible, should be a senior member of the legal department or the organisations external lawyers. The head of IT is a necessity within the dawn raid team as it will be their duty to assist the inspectors in locating and accessing documents and files. Additionally, any other appropriate staff members should be included.
2) All employees should have received data protection training and should have knowledge of where data is stored accompanied with a guide of what to do in the event of a dawn raid.
3) As aforementioned, the constructed team should be organised and therefore each member should have an established and documented role. These roles should be encumbered with specific responsibilities for each team member.
4) Subject to the creation of the team, a list should be drafted containing the email and telephone number of people throughout the organisation that must be notified immediately in the event of an investigation.
5) A useful exercise to conduct would be a mock raid, this would ensure you are best prepared should one take place.
What to do in the event of a dawn raid
1) The first cause of action should be to contact your external lawyers immediately; you cannot delay the inspecting officers, but you may request that they wait until they arrive, this amount of time usually equates to around 30 minutes. If they refuse you should not stop them from progressing their search.
2) The dawn raid team should congregate in a room previously designated. The leader should brief the team on what sort of investigation is taking place so that the correct protocol can be adhered to. It should be noted that different authorities have different rights to documents.
3) An internal email should be sent to all staff, said email could be drafted within the preparation so as to save time and ensure all staff are alerted to the inspection as soon as possible. The email should remind staff to be polite and professional throughout the investigation.
4) External lawyers arrive to go over all aspects of the inspector’s investigation including but not limited to:
– What sort of investigation it is.
– Checking the inspectors authorisation to ensure they are able to conduct the investigation.
– Examine what the investigators already know.
It is important that each inspector reviewing documents is accompanied by a person who is briefed on the ins and outs of the investigation. It would be beneficial if each of the people shadowing were lawyers. It will be their job to take note of all documents reviewed, all search terms entered electronically, and all questions asked.
It is essential that the person shadowing the inspector ensures that the documents are checked for legal privilege and that the documents being examined are relevant to the investigation. If there is no warrant present, then no original documents should be taken.
When employees are being questioned, a lawyer should be present to ensure the interviewee is informed of their rights/obligations. If the investigation is of a criminal nature, then only compulsory interviews should be attended.
How should data and documents within the IT space be handled?
If the investigators take copies of anything for later consideration you should ask to be present during the later review of the contents. You should also ensure that all non-relevant or privileged documents are returned.
The investigators should be able to conduct their examination of documents using their own forensic system, it is important that you permit access to your company’s IT hardware as well as built in search tools. It is also essential that document destruction that is routine to the IT system is halted so as to prevent any liability.
Further to the above, an IT technician should be on standby should any assistance be required.
For more information on how to deal with a Dawn Raid please do not hesitate to contact us.