Serious or Complex Fraud

Serious Fraud Office (SFO) Prosecutions

The SFO is a specialist prosecuting authority tackling the top level of serious or complex fraud, bribery and corruption.

The SFO is unusual in that it both investigates and prosecute cases.

Consideration for an SFO investigation will take into account the actual or intended harm that may be caused to:

• the public; or
• the reputation and integrity of the UK as an international financial centre; or
• the economy and prosperity of the UK.

The SFO can reach a UK Deferred Prosecution Agreement (DPA). This is an agreement reached between a prosecutor and an organisation which could be prosecuted, under the supervision of a judge.

The agreement allows a prosecution to be suspended for a defined period provided the organisation meets certain specified conditions.

DPAs can be used for fraud, bribery and other economic crime. They apply to organisations, never individuals.

The key features of DPAs are:

• They enable a corporate body to make full reparation for criminal behaviour without the collateral damage of a conviction (for example sanctions or reputational damage that could put the company out of business and destroy the jobs and investments of innocent people).
• They are concluded under the supervision of a judge, who must be convinced that the DPA is ‘in the interests of justice’ and that the terms are ‘fair, reasonable and proportionate’
• They avoid lengthy and costly trials
• They are transparent, public events

Section 2 Notices

Section 2(3) of the CJA provides that “The Director [of the SFO] may by notice in writing require the person under investigation or any other person to produce … any specified documents which appear to the Director [of the SFO] to relate to any matter relevant to the investigation or any documents of a specified description which appear to him so to relate”.

It is a criminal offence to fail to comply with section 2(3) of the CJA without a “reasonable excuse”.

Section 2 notices are attractive to the SFO because the SFO alone may determine whether to compel a recipient to produce documents and may serve the notice directly upon the recipient and enforce non-compliance. It requires no court or other third-party intervention, thereby providing a rapid, effective, and largely self-regulated method of compelling the production of documents.

Kings Solicitors can provide immediate advice on dealing with a Section 2 Notice.

The basis of any Section 2 Notice will be clear on the face of the Notice.

However, Section 2 Notices may include broad requests for documents and information. Kings Solicitors can assess the scope of the notice and its interpretation.

Penalties for Non-Compliance

Section 2 Notices carry the risk of criminal penalties. Failure to comply, the provision of false or misleading statements, the destruction, concealment, falsification and/or disposal of relevant documents, all trigger criminal liability.

Timing

A Section 2 Notice will normally contain a date for an interview or deadline for the provision of documents/information.

Here and Now Notices

The Section 2 powers can be used to demand information immediately. This is commonly known as a “here and now”. Here and now powers are used for the information to be provided immediately, for example, during the course of a raid/search, to obtain the location of documents, the combination of a safe, or the password of a mobile phone or computer.

Kings Solicitors can provide immediate advice and deal with the SFO on timing to agree reasonable amount of time to comply.

Safeguards & Legal Professional Privilege

A Section 2 Notice cannot compel the production of material subject to Legal Professional Privilege.

Kings Solicitors can remove the burden and stress of having to cope with the information request. Contact Kings Solicitors for a free initial consultation. Kings Solicitors can provide expert immediate advice and deal with the SFO on your behalf.