Escolar Documentos
Profissional Documentos
Cultura Documentos
TABLE OF CONTENTS
INTRODUCTION TO DAWN RAIDS.............................................................................3
ACTION PROTOCOL: DEALING WITH DAWN RAIDS ..................................................4
A. First Steps..........................................................................................................4
B. The Search........................................................................................................4
C. Privileged Documents.........................................................................................5
D. Penalties............................................................................................................6
MEETING WITH THE INVESTIGATORS AT THE END OF THE DAY...............................8
AFTER THE RAID......................................................................................................9
ANNEX 1 - RELEVANT AUTHORITIES AND THEIR INVESTIGATORY POWERS..........10
ANNEX 2 - ENTERING THE PREMISES AND SCOPE OF SEARCH ............................13
Any company, regardless of its size, may be subject to a dawn raid. Dawn raids are
surprise investigations of premises and are usually without warning.
The prospect of dawn raids has become a reality for many
This guide will consider the key practical points and legal
as such.
Robert Hadley
Partner
+44.(0).20.7360.8166 / 07880528382
robert.hadley@klgates.com
Laura Atherton
Senior Associate
+44.(0).20.7360.8322 / 07535672731
laura.atherton@klgates.com
Christine Braamskamp
Partner
+44.(0).20.7360.8131 / 07958103631
christine.braamskamp@klgates.com
Sasi-Kanth Mallela
Special Counsel
+44.(0).20.7360.8112 / 07958135859
sasi-kanth.mallela@klgates.com
David Savell
Senior Associate
+44.(0).20.7360.8266 / 07947649631
david.savell@klgates.com
ACTION PROTOCOL:
DEALING WITH DAWN RAIDS
FIRST STEPS
THE SEARCH
the raiding authority by which the search can take place with
While the raiding authority will allow you to call your external
do so).
lawyers); and
PRIVILEGED DOCUMENTS
It will be necessary early on in the course of the investigation
to identify any documents protected by legal privilege and
put them to one side so as to avoid accidental disclosure to
the inspectors.
In relation to an investigation by the European Commission,
written communications will be privileged if they are:
m
ade between the company and an independent
external lawyer qualified to practise in an EEA Member
state (i.e., excluding in-house lawyers and, for
example, U.S. lawyers); and
m
ade for the purposes of, and in the interests
the investigation.
PENALTIES
The SFO
an offence.
The CMA
obstruct
an officer carrying out an on-site investigation
or a fine8; and
d
estroy, falsify, or conceal a document that is
p
rovide false or misleading information to the CMA,
knowingly or recklessly.
a fine.9
HMRC
unlimited fine.
The Police
Any person who obstructs a police officer from carrying out
The HSE
Intentionally obstructing or failing to comply with an investigator under HSWA is a criminal offence punishable by a fine
of up to 5,000 and/or up to 51 weeks imprisonment.13
10
12
s67(5) SOCPA.
11
s67(4) SOCPA
13
s33 HWSA.
and the dawn raid team at the end of the day. During this
w
hether the investigation will continue into the following day and, if this is the case, whether the investigators require certain areas to be sealed overnight;
w
hich business sites will continue to be involved (this
is particularly relevant where a number of premises
have been raided) and at what time the investigators
will be returning;
whether
there are any documents subject to dispute
data;
undertaken by:
warrant if the premises are used for business or documents are kept there20; and
the Police;
under investigation.
H
M Revenue and Customs (HMRC); and
Under the Enterprise Act 2002 the CMA may make an application to the High Court for a warrant to search business and
THE CMA
Under the Enterprise and Regulatory Reform Act 2013
14
the CMA took over all competition functions of the OFT and
Competition Commission. As a result the CMA has the power
to enter both business and domestic premises in relation to
competition investigations under the Competition Act 199815
and criminal investigations under the Enterprise Act 2002.
16
14
See: http://www.legislation.gov.uk/ukpga/2013/24/section/26/enacted
21
15
See: http://www.legislation.gov.uk/ukpga/1998/41/section/28
22
16
See: http://www.legislation.gov.uk/ukpga/2002/40/section/194
23
17
24
18
19
s27 CA 1998:http://www.legislation.gov.uk/ukpga/1998/41/section/27
25
20
s27 CA 1998:http://www.legislation.gov.uk/ukpga/1998/41/section/27
10
THE SFO
investment firms).
officers to:
obtain warrants35 and enter the premises of
businesses;
of an investigation28, or alternatively;
search property. 29
the SFO the power to require a person to provide information either by producing material or attending an interview.
Alternatively, the SFO may search premises. This power may
only be used when the Director of the SFO finds reasonable
grounds to suspect that an offence that involves serious or
complex fraud or corruption has been committed. 31 The SFO
always provides written notice when exercising this power,
explaining the need for an officer to attend the premises of
the company. The SFO can also use powers under POCA to
obtain search and seizure warrants, in relation to specific
types of investigation.
32
raids without notice. In almost all cases, the SFO will conduct
THE POLICE
raids with the police. In these cases the SFO usually seeks a
ing cases.
26
See: http://www.sfo.gov.uk/our-work/our-cases/historic-cases.aspx
32
27
33
28
ee: https://www.gov.uk/government/uploads/system/uploads/attachment_data/
S
file/117591/pace-code-b-2011.pdf
34
29
35
36
37
30
31
See: http://www.legislation.gov.uk/ukpga/1987/38/section/2
ee: http://www.sfo.gov.uk/fraud/sfo-confidential---giving-us-information-in-confidence/
S
serious-fraud-office-[sfo]-case-selection.aspx
11
HMRC
The powers of HMRC to obtain information and inspect
premises are derived mainly from PACE47, POCA48, the
Finance Act 2008 (FA)49, and SOCPA.50
The Finance Act 2007 amended PACE for all HMRC
criminal investigations. Therefore, PACE provides search
and seize powers, production order powers, arrest powers,
and search and entry powers to arrest to HMRC when
investigating tax frauds.51
Schedule 36 of FA gives HMRC the power to request
tax offences.
A number of additional powers of production and disclosure
of electronic material are contained in the Regulation of
Investigatory Powers Act 2000 (RIPA). Under RIPA the
41
THE HSE
The Health and Safety at Work etc. Act 197452 (HSWA)
gives a wide range of powers of investigations into incidents
of noncompliance with health and safety law.
HSE inspectors appointed may:
HSWA53;
investigation55; and
2001 (CJPA).46
38
48
39
49
40
50
s62: http://www.legislation.gov.uk/ukpga/2005/15/section/62
41
See: http://www.legislation.gov.uk/ukpga/2000/23/part/III
51
s82 http://www.legislation.gov.uk/ukpga/2007/11/part/6/crossheading/investigation-etc
42
52
See: http://www.legislation.gov.uk/ukpga/1974/37/section/20
43
53
44
54
45
55
46
56
47
57
See: http://www.hse.gov.uk/aboutus/howwework/framework/mou/agencies-seveso.pdf
12
with; or
with, or destroyed.
58
59
60
s 177(6) FSMA, s. 2(4) CJA 1987, s.89(2) Police Act 1996, Articles 23 - 24 Regulation
1/2003.
61
s16 PACE.
13
62
as copies.
THE WARRANT
A warrant should specify:
the name of the person who applied for it;
the date on which it is issued;
the authority under which it is issued;
e ach set of premises to be searched;
in the case of an all premises warrant, the person
POCA WARRANT
A POCA warrant must be obtained from a Crown Court Judge
(for confiscation or money laundering investigations) or a
High Court Judge (for a civil recovery investigation).
In addition to the reasons given at Annex 2 (b) above, a
warrant may be granted by the court if the conditions set
out in s353 POCA are satisfied. This section provides that,
suspecting that:
FSMA WARRANT
the investigation;
ably necessary;
s earch the premises;
a ke possession of documents or information appearing
to be relevant;
take copies or extracts from any such documents or
information;
62
s16 (5) PACE, PD 8.1 Application for a warrant under the Competition Act 1998.
63
64
The warrant may authorise an appropriate person to use force as is reasonably necessary (s. 66(3)(a) SOCPA).
14
SOCPA WARRANT
Under s. 66(1) of SOCPA, a warrant may be issued by the
court when an oath is given by a member of the investigating
authority (e.g., the Director of Public Prosecutions or the
Director of Revenue and Customs Prosecutions) authorising
a named appropriate person (a member of the CMA, a
police officer, member of the NCA, an officer of HMRC) to
undertake the raid with the additional powers of a warrant.64
The court will grant the warrant if the conditions stated in
Annex 2 (b) above are satisfied and there are reasonable
grounds for suspecting that one of a number of offences has
been committed.65 These offences include money laundering, counterfeiting, blackmail, bribery, and/or corruption66.
The raiding authority may carry out their investigation with
the assistance of local police forces, which may provide
them with additional police powers. Reference should then
be made in the additional information provided with the
warrant to the police powers section and powers contained
under the PACE.
66
or a full list of offences see s.61(1) of SOCPA: a) Any offence listed in Schedule 2 of
F
the Proceeds of Crime Act 2002 (lifestyle offences, e.g., money laundering, counterfeiting, blackmail); b) Any offence under sections 15-18 of the Terrorism Act 2000 (e.g.,
offences relating to fund-raising, money laundering); c) Any offence under section
170 of the Customs and Excise Management Act 1979 (fraudulent evasion of duty) or
section 72 of the Value Added Tax Act 1994 (offences relating to VAT); d) Any offence
under section 17 of the Theft Act 1968 (false accounting) or any offence at common
law of cheating in relation to the public revenue; e) Any offence under section 1 of the
Criminal Attempts Act 1981 (attempts); f) Any offence under section 1 of the Criminal
Law Act 1977 (conspiracy); and g) Bribery and/or corruption.
15
13376
65
Corresponding guides for the United States and China are also available.
Please scan the QR code to download a copy.
United States
China
Anchorage
Austin
Fort Worth
Frankfurt
Orange County
Beijing
Harrisburg
Palo Alto
Paris
Berlin
Boston
Hong Kong
Perth
Brisbane
Houston
Pittsburgh
Brussels
London
Portland
Charleston
Los Angeles
Raleigh
Charlotte
Melbourne
Miami
Chicago
Milan
Dallas
Moscow
San Francisco
Doha
Newark
So Paulo
Dubai
New York
Seattle
Seoul Shanghai Singapore Spokane Sydney Taipei Tokyo Warsaw Washington, D.C. Wilmington
K&L Gates comprises more than 2,000 lawyers globally who practice in fully integrated offices located on five
continents. The firm represents leading multinational corporations, growth and middle-market companies, capital
markets participants and entrepreneurs in every major industry group as well as public sector entities, educational
institutions, philanthropic organizations and individuals. For more information about K&L Gates or its locations,
practices and registrations, visit klgates.com.
This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard
to any particular facts or circumstances without first consulting a lawyer.
2014 K&L Gates LLP. All Rights Reserved.