EWJ August 62 2025 web - Journal - Page 15
would interfere with the investigation in any way.
Assuming that is not the case, it may be appropriate to
send a communication to all affected staff, emphasising that the dawn raid should not be discussed outside the company (including with the media) and
otherwise explaining the need to cooperate courteously with the investigation but not to volunteer to
provide information to the search team without first
speaking with the core team handling the dawn raid
internally. Staff should also be clearly advised not to
conceal or destroy any documentation that may be relevant to the investigation and that there are criminal
sanctions for such acts.
Investigators are also not entitled to read documents
that are subject to legal professional privilege. There
may also be data privacy concerns regarding the provision of some documents to investigators. Where
there is any disagreement on such issues, a practical
solution would be to set aside the document or the location which is said to contain the sensitive material
for further discussion at the end of the raid.
Management of a dawn raid
Can (and should) employees shadow the
investigators?
Yes, your employees and/or your legal team (whether
internal or external) are permitted to shadow investigators. It is advisable to appoint a team of shadowers
who are familiar with dawn raid procedures at the
outset of the investigation, allocating (so far as possible)
a shadower to each member of the search team. Each
shadower should be briefed on the scope of the search
(established with reference to the warrant) and the investigating team’s powers, in particular in relation to
the review and copying of documents.
Can the company keep a record / take copies of
documents reviewed by investigators?
Yes and in any event, this is best practice.
Can investigators take copies of documents?
Yes, the SFO / FCA will have the right to copy documents. They also have the right to remove original
copies of documents if they insist on doing this.
Can investigators bring in forensic IT experts?
Yes, investigators will almost certainly use forensic IT
experts to search, copy or “image” company IT
systems and servers. These experts may look not only
at the company’s IT servers but also at desktop
computers, laptops and other mobile devices. The
investigators may require temporary interruptions to
the company’s IT systems to enable their search.
Non-cooperation with a dawn raid
What are the consequences of non-cooperation with
the investigating bodies during the dawn raid?
SFO investigation
A firm or individual who fails to cooperate with an investigation by the SFO opens itself up to the risk of
criminal prosecution and penalties under section 2
CJA. This provides for:
l up to six months in prison and/or a fine for any person who fails (without a reasonable excuse) to comply
with the requirements imposed on them by the SFO;
As the investigation progresses, each shadower can be
tasked with keeping a detailed list of the documents
reviewed and copied and locations searched, as well
as any questions asked. In terms of questions, as a general rule the investigation team should be allowed to
ask specific factual questions (for example regarding
the location of documents) but efforts should be made
to postpone any substantial interviews or queries on
the underlying facts to a later date.
l up to two years in prison and/or a fine for any
person who makes a statement to the SFO, which they
know to be false or misleading, or recklessly make such
a statement; and
What documents can investigators request during a
raid?
What documents can the investigators ask to see
and what are the limits on this (including in relation
to irrelevant or privileged documents)?
Generally, the investigators will have the right to
require any documents or data to be produced which
they consider to be relevant to the subject matter of
the investigation. The scope of “documents” the FCA
/ SFO can ask to see is broad, including physical and
electronic documents.
l up to seven years in prison and/or a fine for any
person who knows or suspects that an investigation is
likely to be carried out and falsifies, conceals, or destroys documents that are known or suspected to be
relevant to the investigation.
FCA investigation
Various offences in relation to non-cooperation are set
out in section 177 FSMA. This provides that:
l if a person fails without reasonable excuse to comply with an FCA investigation requirement, the court
may deal with that person (and in the case of a body
corporate, any director or officer) as if they were in
contempt of court;
Investigators will not typically be permitted to see
documents or data that are irrelevant to the investigation. Whilst this will be immediately obvious in some
cases, shadowers should also pay close attention to the
time period of the investigation and the dates on
which documents were produced. If there is a disagreement with the investigators as to whether a document is relevant, the company should proceed with
caution, bearing in mind that insisting on the exclusion of disputed documents from the ambit of the
search may leave the company open to claims that
they have obstructed the investigation. A cost benefit
analysis should be undertaken in those circumstances
and in any event, a minute should be made to record
the dispute surrounding the document(s).
EXPERT WITNESS JOURNAL
l a person who knows or suspects that an investigation is being or is likely to be conducted will be guilty
of an offence if: (a) they dispose of a document which
they know or suspect is or would be relevant to such
an investigation; or (b) they cause or permit the falsification, concealment, destruction or disposal of such
a document, unless in either case they show that they
had no intention of concealing facts disclosed by the
documents from the investigator;
13
AUGUST/SEPT 2025
