Searches by the Serious Fraud Office
SEARCHES BY THE SERIOUS FRAUD OFFICE
The Serious Fraud Office (SFO) investigates possible instances of serious or complex fraud (which may involve breaches of the Crimes Act 1961, or the Secret Commissions Act 1910). This note explains what to do if the SFO tries to execute at your premises a search warrant issued under sections 6 or 10 of the Serious Fraud Act 1990.
BEFORE THE SEARCH
- Ask the lead SFO officer for identification, and a copy of the search warrant.
- Advise senior management.
- Seek legal advice (including as to the validity of the search warrant).
- Instruct your team members to co-operate with the SFO officers executing the search. Anyone who resists, obstructs or delays the search could face imprisonment for up to 3 months, or a fine of up to $5,000.
DURING THE SEARCH
- Try to foster a co-operative working relationship with the SFO officers.
- Bear in mind that the SFO officers may:
- Use reasonable force to gain entry and break open anything
- Seize any document or thing that is reasonably believed to be relevant to the investigation or evidence of serious or complex fraud (“document” can capture any written material, images, computers, mobile phones, USB drives etc)
- Access any computer or other device, or require any person to help them do so
- Take copies of any documents that may be lawfully seized (e.g. by cloning devices)
- However, a search warrant does not permit the SFO officers to:
- Arrest any person, or require them to answer any substantive questions
- Search any area not specified in the search warrant
- Seize any irrelevant or privileged material other than in accordance with conditions set out in the search warrant (e.g. that the material be placed in a sealed envelope pending determination of claims to privilege)
- Assign a team member to assist each of the SFO officers, and take notes (especially in relation to any searching or cloning of computers or other devices).
AFTER THE SEARCH
- Exchange contact details with the lead SFO officer.
- Ask the lead SFO officer to provide an inventory of any documents or other things seized.
- Tell the lead SFO officer which materials you regard as privileged.
- Prepare a note of the events. Mark it “LEGALLY PRIVILEGED AND CONFIDENTIAL”.
- Consider your other obligations (e.g. advise the NZX, contact clients, notify insurers, issue a press release, convene a board meeting, or commence your own investigation). You should seek legal advice as to whether there is any information concerning the search which you must keep secret.
- Seek legal advice about follow-up steps (e.g. challenge the search warrant, resolve privilege claims, return documents or things seized, or seek further details).