Aziz Rahman of Rahman Ravelli
Aziz Rahman, of award-winning business crime solicitors Rahman Ravelli, explains the role of the Serious Fraud Office and how to deal with it.
Having survived the Prime Minister’s pre-election plan to abolish it, the Serious Fraud Office (SFO) is still the main UK agency when it comes to investigating the most serious fraud and business crime allegations.
The chances are that most businesses will have little or no dealings with it; especially if they have taken appropriate steps to prevent wrongdoing being carried out in their name. But if the SFO does investigate a business, the senior figures in that company have to know how to respond.
The SFO has the resources to carry out in-depth investigations when it suspects a company has been acting illegally; regardless of the location or complexity of the allegations. As an example, it has just (after 20 months of investigations) charged two men from Monaco-based oil and gas company Unaoil in relation to alleged corruption regarding securing contracts in Iraq.
Section 2 of the Criminal Justice Act 1987 – the Act that created the SFO – gives it the power to compel any individual or organisation to provide it with information or documents that it believes are relevant to an investigation.
It also has the ability to offer a deferred prosecution agreement (DPA), whereby a prosecution is suspended if the accused admits the wrongdoing and agrees to meet certain conditions. DPA’s have been reached this year with both Rolls-Royce and Tesco; saving both companies from what could have been hugely-damaging prosecutions.
There is little doubt that Tesco and Rolls-Royce are both glad to have been granted a DPA rather than be prosecuted. This was due largely to their response to SFO investigations; when they cooperated and negotiated. Such an accommodating approach can bring rewards.
But sometimes the correct response is to challenge the SFO over the allegations it is making, the charges it brings or any aspect of the way it has carried out its investigations.
For example, if the SFO does not follow the rules when applying for a search warrant, if the warrant is not drafted properly or if the resulting search of a premises is not carried out exactly as it should be, a defence lawyer can apply to have the warrant quashed and any seized property returned.
So while negotiation and cooperation have their value when dealing the SFO, a well-made challenge to its assumptions and actions can prove valuable.
The SFO can, and does, get it wrong. This was shown over the way the SFO investigated the brothers, Robert and Vincent Tchenguiz. The Tchenguiz brothers’ premises were searched and arrests were made but the defence lawyers were able to prove that the SFO had failed to check information that it had presented to the Court when applying for the search warrants. The case ended with the SFO apologising to the brothers and paying them £4.5m.
The SFO can be challenged at all stages of an investigation regarding any aspect of its enquiries or the material it intends to use as evidence. The legislation is in place to ensure that.
Section 21 of the Police and Criminal Evidence Act (PACE) gives people the right of access to any material of theirs that has been seized by the SFO. A defence solicitor can ensure the SFO does not hold on to documents that could be of value to the defence case. The Attorney General’s Guidance on Disclosure (December 2013) created rules on the seizure and search of digital material so that no one under investigation was unfairly disadvantaged.
The important thing to remember is that if you are facing an SFO investigation, it is an extremely serious situation. But such situations can be managed shrewdly to minimise the damage to an individual or a company, if the right legal help is sought as quickly as possible.
Aziz Rahman is founder of Rahman Ravelli; a top-ranked business crime law firm in national and international legal guides.
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