Ensuring your business can keep trading after a raid
Aziz Rahman of award-winning business crime solicitors Rahman Ravelli explains what those in business should do if they are the subject of a raid by the authorities.
There is no escaping the fact that a raid by the authorities on a business can be dramatic. Regardless of the reasons for the raid and whether or not it is justified, it is likely to have repercussions for the business or individuals concerned. That is why it is so important that anybody in business knows what they should do and who they should contact if and when they are raided.
Raids may not often be as spectacular as people imagine. But they are more common than many people would think. As they can involve the seizure of documents, digital material, computers and communications equipment they can cause major disruption to the day-to-day running of a business. But a degree of forward planning in case of a raid and the right reaction if one does occur can help ensure a company can keep operating.
Taking the right steps will go a long way to minimising the damage a raid can cause to a company’s ability to function and its reputation. It will also maximise the chances of being able to challenge the allegations that led to the raid being carried out - and even the legality of the raid.
Is the raid legal?
Many raids are carried out correctly, with all those involved conducting themselves in strict accordance with the law. But the enforcement agencies that have the power to carry them out have been known to make mistakes.
In one high-profile example, the Serious Fraud Office (SFO) arrested the brothers Vincent and Robert Tchenguiz in 2011 and raided their premises after obtaining search warrants to do so from a judge. But the SFO eventually had to apologise to the brothers and pay them a total of £4.5m plus legal costs when the agency was found by a court to have obtained the search warrants on the basis of inadequate information that had not been properly researched.
In another case, R (Cook) V Serious Organised Crime Agency (SOCA) 2011, SOCA was ordered to pay damages and legal costs and was not allowed to keep material seized in a raid as it had not followed the correct legal procedure for leaving schedules to the warrant at the raided premises.
There are other cases but the point that needs to be made is that the agencies who carry out raids can and do make mistakes. Those mistakes can be the basis of a challenge to the legality of the raid. And a successful challenge can put the subject of the raid in a far better position than they otherwise would be.
The importance of a raid strategy
Knowing what you can and what you should do if and when a raid happens will vastly boost your chances of being able to retain the data and equipment that you need to keep trading.
No business can know for sure if and when it will be raided. But nevertheless, a business must take all possible steps so that if there is a raid it is able to:
- Retain copies of all paperwork and have all computer-based material backed up
- Question those conducting the raid
- Keep a full, accurate record of the answers given and any other comments made by those conducting the raid
- Keep a full schedule of everything taken in the raid
- Have the business’ lawyer present. The lawyer can ensure those carrying out the raid conduct themselves properly and do not take material they are not allowed to. It should be noted that all communication between a business and its lawyer is legally privileged – this means that no agency carrying out a raid can take any record of communications between the two parties
The law and raids
An investigating authority that intends to raid a premises must apply for a search warrant; the majority of which are issued under the Police and Criminal Evidence Act 1984 (PACE), which lays down detailed rules about making such an application.
If the search warrant is not applied for properly, is not issued correctly, if the investigators fail to comply with the terms of it or those carrying out the raid are not those named on it, a court could rule that the raid is unlawful. This can result in the warrant being quashed and any property seized in the raid being returned – meaning there is much less chance of a prosecution being brought.
Section 21 of PACE gives people rights of access to their material after it has been seized and the Association of Chief Police Officers (ACPO) has issued guidance on how officers should handle digital material in a raid. The Attorney General’s Guidance on Disclosure has also laid down rules on how digital evidence should be viewed, copied and returned. Those in business need to be aware of the rights such measures give them regarding raids – or seek advice from those with relevant expertise.
By doing so, the potential damage that a raid can cause can be reduced greatly.
Aziz Rahman is the Founder of Rahman Ravelli; a top-ranked business crime law firm in national and international legal guides.