Preparing for a Dawn Raid: The Importance of the Right Response

Niall Hearty of Rahman Ravelli explains how careful planning can reduce the effect of a raid on a business.

Dawn raids are not a rarity. They can be carried out on all manner of businesses (and individuals) for a wide variety of reasons. It is, therefore, vitally important that any business knows how to respond if it is ever the subject of one.

Making the right preparations for such a raid can be of immense value. This can ensure everyone knows what they need to do, remove much of the stress from the situation and prevent the possibility of the agency conducting the raid acting in excess of its powers.

This, in turn, can shape the course of an investigation and minimise the disruption and damage to the business that is raided. Minimising the effects will always be a vital consideration for the shareholders of the company under investigation.

The Response

For a business to have any chance of responding appropriately to a raid, it has to have in place a response team. Such a team has to be made up of the personnel who would be involved if the business were raided.

• These include:Reception and/or security staff
• Senior management
• The company solicitor (or external legal advisors) and compliance officers
• Employees chosen to shadow the agency staff conducting the raid
• The IT director or relevant technical staff or advisors

But all staff should be told that investigators have arrived and intend to conduct a raid and search for material. Staff should be polite and cooperative. They should not delete or destroy any documentation unless they are given authority to do so and should not discuss or comment on the raid.

When an agency begins a raid, it will be the security staff or those working on reception who will be the first to have contact with the investigators. For this reason, they have to know what they should do in such circumstances.

It is important that they:

• Examine and take copies of both the investigators’ proof of identity and the search warrant that has given the authority for the raid.
• Take the investigators to an empty room - that has no computers, files or other company documentation in - to wait for the arrival of senior management.
• Immediately inform the company’s senior management that investigators have arrived to conduct a raid.
• Request senior management to come to the business premises if they are not already on site.
• Show senior management all the documentation that the investigators have presented in relation to the raid.

Once the business’ senior management arrive, they need to ask the investigators how they intend to conduct the raid and what material (or types of material) are being sought.

Legal Representation

Management must also contact their legal advisors, whether they be in-house counsel or specialists hired from a law firm. Legal representation has to be the first priority for management when a business is facing a raid. Such representation is necessary for establishing the reasons for the raid, the scope for it and the validity and limitations of the search warrant that has been produced by investigators.

Most warrants are issued under the Police and Criminal Evidence Act 1984 (PACE) or under the Proceeds of Crime Act 2002. When applying for a warrant to search a premises, the enforcement agency planning the raid must state the object of the search and provide sufficient information to satisfy the court that it is necessary. There has to be reasonable grounds for believing that an offence has been committed and that there is material on the premises that is likely to be of substantial value to the investigation. If procedural rules regarding the application for the warrant are not followed the warrant may be quashed, which can stop a raid in its tracks.

It is important that the business’ legal representatives are present while the searches are carried out. Efforts should be made to persuade the investigators to wait to conduct the raid until the company’s legal representatives are present. If this is not possible, the business’ lawyers should be updated by phone as the raid proceeds.

Such arrangements with legal representatives may require careful coordination if raids are being carried out at more than one premises belonging to a company or if the raid on one business is part of a series of raids on a number of businesses. Agencies will often raid more than one premises at the same time as part of an investigation. The homes of senior business figures are often also targeted by investigators, who are keen to seize all computers, documentation and other devices that may contain information as soon as possible. Raids on more than one site require a swift response to ensure that all aspects of every raid are carefully monitored.

If those conducting the raid are found to have breached procedures while conducting their search, they may be ordered to return any material they took during the raid.  As the Attorney-General’s Guidelines on Disclosure 2013 place obligations on investigating agencies to disclose what material they have taken during a raid, they can be compelled to return material rather than hold on to it indefinitely. But raising such issues requires the right legal representation.

Legal representation can also be of importance when it comes to the issue of legal privilege. Investigators cannot demand documentation that is protected by legal professional privilege. In the UK, legal professional privilege covers communications between a lawyer and client for the purpose of giving or obtaining legal advice and documents created for actual or pending legal proceedings. It will be the lawyer’s task to both identify the material that is covered by privilege and explain to investigators the legal grounds for them not being allowed access to it.

Monitoring

Monitoring can play a crucial role in the response to a raid. Investigators conducting the raid should never be allowed to move around a site unsupervised. They should always be shadowed by at least one employee. This needs to be done so that the investigators do not look at – or take – material that they are not authorised to do so under the terms of the search warrant. Employees should also be taking thorough, contemporaneous notes of what the investigators look at, the items they seize, the documents or data they copy, the areas they search and the questions they ask (and the answers that are given).

The role of the business’ IT director is significant in such circumstances. With investigators wanting access to some or all aspects of the company’s computer network, the senior IT figures may be able to assist when it comes to investigators navigating the hard drives and servers. Crucially, they may be able to give investigators copies of certain electronically-stored material. This may prevent the need for the company’s computer equipment to be seized and taken away, which would make it very difficult for it to keep trading.

After a Raid

As a raid can be a lengthy, drawn-out event, investigators may not complete it on the day they arrive at a business. If this is the case, they need to explain when they will return. They should also be asked what material – if any – needs to be sealed until their return.

A meeting should be held with staff once the investigators have left, to compile all the information about what was taken, what questions were asked and anything else that arose during the raid. Senior management should then consider whether there is a need for the company to conduct an internal investigation to examine the issues and allegations raised by the raid investigators. The business will also have to assess whether – and how – it should notify customers, trading partners and other interested parties about the raid and the reasons for it.

Conclusion

The term dawn raid may conjure up images that are more dramatic than the reality of investigators arriving to search a premises.

But such raids can have huge and long-lasting implications for a business (or individual) that is the subject of one. While both the manner of a raid and the reasons for one may vary, the need for an appropriate response to one does not. Whatever the circumstances, the harm that a raid can cause can only be minimised by having a strategy in place to ensure that everyone knows their role should one be carried out.