The second part of our look at how to manage a raid on your premises. This time, we show how the law can be used to challenge all aspects of a raid.
In the firrst part of our two-part examination of raids, we considered how procedures can be put in place so an organisation or individual is prepared for a raid.
But it is equally important to know your legal options when a raid is carried out so that those doing the raiding do not exceed their powers.
Investigating authorities must apply for a warrant to raid a premises. Most are issued under the Police and Criminal Evidence Act 1984 (PACE). There are rules that must be followed regarding the application for a search warrant and the conduct of the raid itself. If these rules are not followed, the search and the warrant may be quashed or seized property handed back; which can jeopardise the chances of a prosecution.
For defence teams, finding any breach of these rules provides grounds for challenging the legality of the warrant, the raid and any prosecution that may result.
This was shown recently, in the case of Chatwani, Tailor and Gulabivala V the National Crime Agency (NCA). The NCA had obtained search warrants in relation to ten defendants and their companies, which they suspected of being involved in money laundering. But the case ended with the NCA having to accept that their raids were unlawful and the courts denying the Agency's application, to retain material they seized in the raids or any copies of it that had been made.
The NCA had obtained search warrants by applying to the courts. It went ahead with its plans to arrest the defendants, search their homes and company premises and plant covert surveillance devices, which Agency staff believed would then provide them with evidence of money laundering.
But the defendants' lawyers argued successfully to the Queen's Bench Division that the NCA had failed to adhere to the law on raids by:
• Not disclosing all relevant matters to the court when applying for search warrants.
• Not specifying what it was searching for when applying for the warrants.
• Exceeding the scope of the search warrants by seizing personal possessions.
• Not disclosing its intention to plant listening devices.
In finding in favour of the defendants, Lord Justice Davis and Mr Justice Hickinbottom criticised the NCA, stating that "no one even considered taking legal advice on the warrants or any other aspect of the plan". They accused the NCA of "ignorance of the appropriate procedures and a complete failure to appreciate the fundamental role of the courts" when it comes to search warrants. The NCA was also criticised for acting with disregard or indifference to constitutional safeguards.
The case was a fierce rebuke for the NCA. But more importantly, it shows how a shrewd defence team can tackle any authority that may have not followed the letter of the law in the planning and execution of a raid. Even before this judgment was made in May, the defence team had succeeded in preventing the NCA making copies of the material it seized in the raids.
The case above is a clear example of why it pays to be familiar with the law on raids. Knowledge of this area of law can offer a great deal of protection for those whose premises are searched. As an example, in R (Cook) v Serious Organised Crime Agency , warrants were issued and searches carried out. But as schedules to the warrant were not left at the searched premises – as required by the rules - the seizure of items was ruled unlawful and SOCA had to pay damages and certain legal costs. Further legal action in relation to this case established that the unlawful seizure could not be rendered lawful by subsequent re-seizure – an important protection offered to the majority of people facing a raid.
Similarly, the Tchenguiz brothers were both raided by the Serious Fraud Office (SFO) in relation to suspected misconduct regarding the collapse of an Icelandic bank. After a series of lengthy legal negotiations and hearings, the SFO ended up reaching costly financial settlements with each brother. These pay-outs came after it was established that the SFO had over-emphasised aspects of the case to a judge while applying for the search warrants and had ignored other plausible explanations for the brothers' conduct.
The Tchenguiz brothers are rich men who can fund major legal challenges. But other cases have shown that it is not only multi-millionaires who can challenge what goes on during a raid. For example. Section 21 of PACE gives people certain rights of access to their material that has been seized. Officers involved in raids may often believe they can take whatever they want and hold it indefinitely. Not so: there is now the requirement that hard discs will be copied at the scene or, at the very least, that seized computers need to be returned as soon as is practicable.
The Supplementary Attorney
General’s Guidance-The Guidance on Disclosure of Digitally Stored Material (July 2011) sets out limits regarding what those carrying out the raid can do with digitally-stored material; such as that kept on computer. A shrewd legal defence team will make sure those carrying out the raid do not exceed their powers. Such an approach prevents raiders taking anything and everything and holding on to it indefinitely. For this reason, having a lawyer present during the raid can prove vital for the person being raided. Such a legal expert can inform the exhibits officer that the person raided will expect proper and full scheduling of all seized material, prompt return of computers and no unauthorised copying of material; for example, legallyprivileged documents. The lawyer can also make sure that digital material subject to legal professional privilege is not seized and, if it is, that is isolated from all other seized material.
At the time of a raid, those who are subject to it can protect their rights – and chances of challenging a prosecution – if they carry out a few basic but important checks on the raiders. Is there legal authority for the raid? What type of raid can be carried out? Are the raiders named on the mandate? Can they verify their identity? Is the mandate for the correct period of time? Such checks can prevent abuse of procedures and are best handled by someone well versed in the relevant law.
Companies must ask to be given a little time so their legal representative can be present.
When the raid does begin, those being raided must make copies of anything taken and notes of any questions and discussions between them and the investigators present. The investigators should be followed so they only take what they are entitled to and do not read legally privileged material.
The raid is a very crucial first stage in an investigation. Responding to it vigorously by employing a sound knowledge of the law in this field, is the best way to minimise the financial and reputational damage a raid can cause.