Dawn raids: Asset recovery powers of the enforcement agencies, and what you can do if you’re raided

Certain authorities have the power to carry out raids on a premises if they suspect that assets have been acquired through unlawful conduct, or if they have reason to believe that documents on the premises will help an investigation. These sorts of intrusions are often referred to as ‘dawn raids.’

Who has the power to carry out a raid?

The authorities that can carry out a raid include:

·       National Crime Agency (NCA)

·       Serious Fraud Office (SFO)

·       His Majesty’s Revenue & Customs (HMRC)

·       Financial Conduct Authority (FCA)

·       The police

·       The Competition Markets Authority (CMA)

What assets can they seize?

The NCA has the power to seize assets that they believe have been acquired through unlawful conduct. They don’t necessarily need to carry out a raid to do this.

The assets they can seize may include cars, jewellery, and TVs for example. If the person cannot explain how they acquired these assets through legitimate means, then the NCA may be able to seize them. See our article on Unexplained Wealth Orders (UWOs) for more information.

But other authorities rely on raids to seize assets or evidence that they are looking for as part of an investigation. During a raid, the authority will seize things like computers, servers, notebooks, hard copy documents, and mobile phones.

Can you challenge the legality of a raid?

Yes, you can challenge the legality of a raid, in the right circumstances.

The investigating authority must apply to court to get a search warrant to raid the premises. They can’t turn up out of the blue without one. One way to challenge the legality of a raid is to challenge the legitimacy of the search warrant.

For example, when they apply for the warrant, the authority must disclose relevant matters to the court such as (i) what they are searching for, and (ii) their intentions for the search.

Sometimes an authority will want to plant listening devices in a premises. While they don’t need to tell the owner of the premises about this, they do have to tell the court that they intend to plant these devices. If they don’t disclose all the relevant issues, then the search warrant can be challenged and it may be deemed to be invalid.

You can also challenge the scope of the raid. The search warrant will give the authority permission to search for and seize certain assets. But it may be the case that the authority goes beyond their remit and seizes additional assets. In some circumstances, the authority may exceed its scope by seizing personal possessions. That may be another ground for challenge.

You may be able to challenge the authority’s conduct during the raid. They have to follow certain rules and one of those rules is to leave the schedules to the warrant at the searched premises. If they don’t do that, then it could be a breach.

What to do during a raid

When the authority turns up at the premises the investigation team must present the warrant and explain the remit for the raid. Don’t feel rushed into it. Take your time to check the warrant and look for things like:

·       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?

Once you’re happy with the answers to those questions, the authority is at liberty to conduct the search.

When an investigation begins, it’s very important that you stop any routine destruction of documents. It could be a criminal offence if you don’t. Make sure all of your employees are aware of this and they know that it is a serious offence to delete or destroy documents.

You can appoint ‘shadowers’ to follow the inspectors as they conduct their search. These shadowers don’t obstruct the search in any way. They take notes about the evidence that is being examined and removed. They’ll make notes about any questions that were asked, and jot down which answers were given. It’s good practice to have a thorough note-taking exercise during the investigation.

Who should be present during the investigation?

It's usually a good idea to have a legal adviser present if you can. They may be an in-house lawyer, or you could call an external lawyer (like us) to attend the site. A lawyer will make sure that the raid is carried out within the remit of the warrant, and make sure the procedures are being carried out correctly.

The other thing that a lawyer can help you with is identifying ‘legally privileged’ material. The authority is not allowed to seize this material. It’s usually communication between the client and the lawyer and your lawyer will be able to challenge the authority if they try to take it.

You’ll also want to have a senior manager on site to oversee the investigation, and someone from IT to help the authority access digital documents. You should also have your compliance officer there and someone from your internal communications team.

How can you prepare for a dawn raid?

You can’t plan for a specific date and time when a dawn raid might happen. But you can prepare your business and staff with some dawn raid training. It helps to reduce the panic if a raid happens out of the blue. Your front-of-house staff understand what’s going on, and your ‘shadowers’ understand their task from the outset.

If you’d like any help with your training programme in this area, or you have any questions about the seizure of assets, please give us a call at Harewood Law. We have an experienced team of solicitors who can advise you in this area.

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Harewood Law work on both privately funded and serious Legal Aid cases across Leeds, Bradford, Halifax, Wakefield, Huddersfield, across West Yorkshire and the UK. Contact Harewood Law today.

0333 3448377 | info@harewoodlaw.com