Aziz Rahman, of award-winning solicitors Rahman Ravelli, explains how best to respond if you or your company is accused of wrongdoing.
Sometimes individuals and companies come under investigation by the authorities, even if they have done nothing wrong. It is unfortunate but the important thing is to know how to react.
Make no mistake, the authorities can – and do – get it wrong. As a high-profile example, the Serious Fraud Office (SFO) suffered a major blow last month when the Crown Court threw out all the charges it had brought against Barclays and four former executives over a controversial £5 billion fundraising deal in Qatar.
The case may yet go to appeal but the fact of the matter is that Barclays stood its ground and, for now at least, has been victorious. It is proof that defence teams can successfully challenge accusations made by law enforcement agencies and any charges that are brought. Even the way an investigation has been conducted can be challenged. The chances of doing any of this successfully, however, are much higher if the person or company seeks expert legal help as soon as they know they are under investigation.
When it comes to the conduct of an investigation, there can be scope to challenge the validity of search warrants. If, for example the SFO, fails to follow the correct procedures when either applying for the warrant or when conducting the search of a premises, a defence team can apply to have the warrant quashed and any seized property returned.
The credibility of information that a law enforcement agency relies on and the conduct of that authority can be areas where a defence team can challenge any allegations that have been made. Section 21 of the Police and Criminal Evidence Act 1984 (PACE) gives people the right of access to any material of theirs that has been seized; meaning 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 how to deal with the seizure and search of digital material. Access to such information can be hugely important when attempting to challenge assumptions being made by the authorities
An intelligent defence team can also use the law of disclosure to gain access to unused material – material seized by the authorities which they will not use as it does not help their case. Such an approach requires experience and expertise in this field. And it can be the difference between an investigation being stopped in its tracks - thanks to a defence casting doubt on prosecution claims – and it going to trial.
It should also be remembered that even if a case does go to trial, the challenges that were voiced pre-trial can still be used by a defence to contest any assumptions of guilt being voiced by the authorities. Barclays’ success against the SFO is a major case that centres on huge, cross-border financial deals. But the fact that the bank stood its ground – and that the SFO was judged to have been mistaken – is proof that the prosecutors do not always get it their own way.
What has to be remembered by anyone in business who comes under investigation is that the law enforcement agencies are far more likely to get their own way if those they investigate do not go about challenging them in the most appropriate manner.
Aziz Rahman is founder of Rahman Ravelli; a top-ranked business crime law firm in national and international legal guides.
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