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Director's Investigatory Powers

Under Sections 60-70 Of The Serious Organised Crime And Police Act 2005

Introduction

Part 2, Chapter 1 of the Serious Organised Crime and Police Act 2005 ("the Act") confers on the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the Lord Advocate [Note: These offices are collectively termed "investigating authority" in the Act and are defined at s.60(5)] similar powers currently conferred on the Director of the Serious Fraud Office (SFO) by section 2 of the Criminal Justice Act 1987 to compel individuals to co-operate with investigations by producing documents and answering questions.

This document contains guidance on the law, practice and procedure. It is recognised that good practice will develop as greater use is made of these powers and real life situations result in adaptation of procedures. However, we have drawn from the experience of the SFO in developing the recommended procedures and systems so, to that extent, they are tried and tested.

Investigatory Powers Under Sections 60-70 Of The Serious Organised Crime And Police Act 2005

1. Power To Issue A Disclosure Notice

1.1 Section 60 empowers the Director of Public Prosecutions ('DPP'), to issue a disclosure notice in connection with an investigation to which this part of the Act applies.

This power can be exercised either in person or by a prosecutor to whom the power has been delegated ('authorised prosecutor'). Subject to this limitation the delegation may be as wide or narrow as the DPP sees fit.

The power cannot be delegated to a constable or a member of staff of the National Crime Agency ('NCA') [Note: All references to a member of staff of SOCA in this guidance mean staff who are for the time being designated under section 43 of the Act.].

What is a disclosure notice?

1.4 A disclosure notice is defined in Section 62(3) as a notice in writing requiring the person to whom it is given to do all or any of the following:

a. answer questions with respect to any matter relevant to the investigation;

b. provide information with respect to any such matter as is specified in the notice;

c. produce such documents, or documents of such descriptions, relevant to the investigation as are specified in the notice.

1.5 The notice will also stipulate where, when and how these requirements should be met. The notice may contain a requirement to do any of these things immediately [Note: S.62(4).].

1.6 The notice does not confer any right of entry. To enter premises without invitation express or implied, a search warrant is required.

1.7 A disclosure notice must be signed by the DPP or an authorised prosecutor.

Offences to which the power applies

1.8 Section 61 restricts the application of the new power to the following offences:

a. the lifestyle offences listed in Schedule 2 of the Proceeds of Crime Act 2002 in England and Wales [Note: Section 61(1) (a) and (b)] (Drug trafficking, money laundering, directing terrorism, people trafficking, arms trafficking, counterfeiting, intellectual property offences, offences in relation to pimping and brothels, blackmail and offences of attempting, conspiring, inciting, aiding abetting, counselling or procuring such an offence);

b. offences under sections 15 - 18 of the Terrorism Act 2000 [Note: Section 61(1)(c)](Terrorist funding offences);

c. offences under section 170 of the Customs and Excise Management Act 1979 or section 72 of the Value Added Tax Act 1994, which is a qualifying offence [Note: Section 61(1) (d)];

d. any offence under section 17 of the Theft Act 1968 or any common law offence of cheating in relation to the public revenue, which is a qualifying offence [Note: Section 61(1)(e)];

e. an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit or conspiring to commit any of the offences set out in paragraphs (c), (d) or (e) above which is a qualifying offence.

What is a qualifying offence?

1.9 A qualifying offence is one which the DPP or authorised prosecutor certifies in his/her opinion:

  • in the case of an offence under section 170 of the Customs and Excise Management Act 1979 or section 72 of the Value Added Tax Act 1994 or an offence of cheating the public revenue, the offence involved or would have involved a loss, or potential loss, to the public revenue of an amount not less than £5,000 [Note: Section 61(2)(a)]
  • in the case of an offence under s.17 of the Theft Act, the offence involved or would have involved a loss or gain, or potential loss or gain of an amount not less than £5,000 [Note: Section61(2)(b)].

1.10 A document certifying the above will be required. [Note: Section 61(3).] This document should not be attached to the disclosure notice. It should, however, remain on the prosecution file and can be produced at court, subject to public interest immunity or editing if required. The disclosure notice should contain a reference to the fact that the certificate has been issued.

2. The Criteria For Issuing A Disclosure Notice

2.1 Section 62(1) empowers the DPP or authorised prosecutor to give a disclosure notice or to authorise a constable or a member of staff of NCA [Note: The Act uses the collective term "appropriate person".] to give such a notice to a person where:

a. there are reasonable grounds for suspecting that a person has committed an offence set out in section 61(1) and (2);

b. that the person subject to the notice has information which relates to a matter relevant to the investigation of the offence; and

c. there are reasonable grounds for believing that information which may be provided by the person subject of the notice is likely to be of substantial value (whether or not by itself) to the investigation.

2.2 The disclosure notice should be issued by the DPP or authorised prosecutor and should name the authorised person(s) i.e. the constable or a member of staff of NCA authorised to give the notice to the recipient and ask questions, receive information and/or documentation.

3. Requiring A Person To Answer Questions s62(3)(a)

3.1 Section 62(3)(a) authorises the DPP or authorised prosecutor to require the person to whom the notice is given to answer questions with respect to any matter relevant to the investigation.

3.2 An interview conducted under this section will be carried out by a constable or a member of staff of NCA. This is not an interview under the regime created by the Police and Criminal Evidence Act 1984 (PACE). Therefore, there is no requirement that disclosure should be made of any questions to be asked of the witness in advance of the interview or pre interview disclosure, although a description of the information required should be given in the notice.

[Paragraphs 3.3 - 3.7 redacted]

Advance information

3.8 While there is no obligation to provide any documentation to the interviewee in advance of the interview, in some cases it may be expedient to disclose documentation in advance of the interview in order to refresh the interviewee's memory.

3.9 In R v Director of Serious Fraud Office ex parte Maxwell (Kevin), The Times, October 9 1992 it was held that the proposed interview with the defendant pursuant to section 2 was part of the investigative process and there was no obligation on the investigator to show the person interviewed any information already available. The court recognised that in some cases an investigator might find it helpful to disclose such information, but in other cases it might be damaging.

Practicalities

3.10 Interviews will normally take place at police or NCA premises, where tape recording facilities are available. However, they can be arranged at other venues such as the interviewee's home address if this is practicable and convenient.

3.11 Interviews should be tape recorded in order to avoid subsequent disputes over what was said. It will be the responsibility of the police or NCA to provide typed transcripts where the prosecutor or the court requests one.

3.12 Before the interview begins, an explanation of the purpose of the interview should be provided to the person being interviewed.

Power to compel a witness continues after charge

3.13 In the case of R v Director of Serious Fraud Office, ex parte Smith [1993] AC1, HL, the House of Lords ruled that the power of the SFO to compel a witness to answer questions continues after a defendant has been charged.

4. Production Of Documents - S 63

4.1 Where a disclosure notice has been given, an authorised person [Note: 'Authorised person' means any constable, designated SOCA member of staff or revenue and customs officer who is the person by whom the notice is given or who is authorised by the DPP. Director RCPO or Lord Advocate for the purposes of section s.63(6).] may:

a. take copies of, or extracts from documents produced in compliance with the notice; and

b. require the person producing them to provide an explanation of any of them.

Retention periods

4.2 Documents produced under these powers may be retained for as long as the DPP or authorised prosecutor considers it necessary to retain them (rather than copies) in connection with the investigation for the purposes of which the disclosure notice was given [Note: Section 63(3)].

4.3 Where the DPP or authorised prosecutor has reasonable grounds to believe that such documents may have to be produced for the purposes of any legal proceedings and that they might otherwise be unavailable for those purposes, they may be retained until the proceedings are concluded [Note: Section 63(4)].

4.4 If a person, who is required by a disclosure notice to produce any documents, does not produce the document in compliance with the notice, an authorised person may require that person to state, to the best of his knowledge and belief, where they are. [Note: Section 63(5)]

Definition of Documents - s.70

4.5 For the purposes of this section, a document includes information recorded in both legible and illegible forms. Any documents produced under these provisions must be produced in legible form. For example, data which is encrypted must be produced in a format that can be read.

5. Restrictions On Requiring Information - S.64

5.1 Section 64 provides exceptions to the requirement under sections 62 and 63 to answer questions, provide information or produce documents.

Legal professional privilege [Note: Section 64(1) -(4)]

5.2 A person may not be required under sections 62 and 63 to answer any question, provide any information or produce any document which he/she would be entitled respectively to refuse to answer, provide or produce on the grounds of legal professional privilege in proceedings in the High Court, although a lawyer may be required to provide the name and address of a client of his.

5.3 For example, transactions conducted by a solicitor in a conveyancing matter, are very unlikely to be covered by legal professional privilege in High Court proceedings and will be obtainable. In the experience of the SFO they are frequently the subject of a disclosure notice.

Section 11 PACE excluded material [Note: Section 64 (5)]

5.4 A person may not be required to produce any 'excluded material' as defined in section 11 of PACE [Note: Confidential personal records relating to any business or profession, confidential journalistic material, human tissue or tissue fluid held confidentially for the purposes of treatment or diagnosis.]. Any application to obtain such material will still have to be made to a judge under Section 9 and Schedule 1 of PACE.

Confidential banking information [Note:Section 64(8)]

5.5 A person may not be required to disclose any confidential banking information or documentation unless the person to whom the duty of confidence applies consents or the DPP specifically requires or authorises it. There is no requirement for the DPP personally to authorise a notice as section 60 of the Act allows for delegation of the power. Acknowledgement of the fact that the information required is confidential banking information should be included in the internal authorisation and the notice.

5.6 These exceptions also apply to relevant documentation or information found following the execution of a warrant obtained under section 66 of the Act [Note: Section 66(9)].

6. Restrictions On Use Of Statements - S.65

6.1 A statement made by a person pursuant to a requirement in Section 62 or 63 may not be used in evidence against him in any criminal proceedings other than:

a. proceedings for an offence pursuant to section 67 [failing to comply with a disclosure notice - see below];

b. proceedings for an offence of giving a false declaration or statement contrary to s.5 Perjury Act 1911;

c. proceedings for some other offence (i.e. not the one investigated) where the person, when giving evidence, makes a statement inconsistent with the relevant statement and evidence relating to that statement is adduced, or a question is asked about it by or on behalf of the person.

7. Power To Enter And Seize Documents S.66

7.1 Section 66 allows an application to be made to magistrates for a search warrant. An information on oath must be laid by the DPP or authorised prosecutor. It is important to note that this definition does not include a constable or a member of staff of NCA. They cannot therefore apply for a warrant. However, the warrant itself will be addressed to a police constable or member of staff of NCA.

7.2 To issue a warrant under this section, the magistrate must be satisfied that:

a. the person has been required by a disclosure notice to produce documents but has not done so; or

b. it is not practicable to give a disclosure notice requiring their production; or

c. the giving of such a notice might seriously prejudice the investigation into an offence to which this chapter applies [Note: Section 66(2)].

and he is satisfied that the documents are on the specified premises.

7.3 The warrant will authorise an appropriate person to [Note: Section 66(3)]:

a. enter and search the premises, using such force as is reasonably necessary;

b. to take possession of any documents appearing to be documents of a description specified in the information, or to take such steps as appear necessary for preserving or preventing interference with such documents;

c. in the case of documents recorded in other than in a legible form, to take possession of any computer disk or other electronic storage device which appears to contain the information in question, or to take such steps as appear necessary for preserving or preventing interference with that information;

d. to take copies of or extracts from documents or information falling within (b) or (c) above;

e. to require any person on the premises to provide an explanation of any such documents or information or to state where any such documents or information may be found;

f. to require any such person to give the appropriate person such assistance as he may reasonably require for the taking of copies or extracts.

7.4 A person executing a warrant under this section may take other persons with him if it appears necessary to do so. The application need not name those persons, (it should name the constable/member of staff of NCA to whom it is addressed) but it should contain the numbers of persons who will be accompanying the named officer and their respective functions (not all may be law enforcement officers). The warrant must be produced for inspection by the owner or occupier of the premises, if required to do so.

7.5 It should be noted that Section 16(5) of the Police and Criminal Evidence Act 1984 requires that the original search warrant must be produced to the occupant of the premises. This is confirmed by the case of R v Chief Constable of Lancashire ex parte Parker [1993] 2 ALL ER 56.

7.6 If the premises are unoccupied or the occupier is temporarily absent they must be left as effectively secured against trespassers as they were found to be.

Presence of defence representatives at searches

7.7 There is no provision in the Act for defence representatives to be present at a search and there is therefore no requirement for a search to be delayed pending the arrival of legal representation. However, the occupier may be afforded a reasonable opportunity to obtain legal advice if he/she wishes to do so. It is a matter of judgement whether and if so for how long a search should be halted whilst the occupier obtains advice.

7.8 A search team should act reasonably whilst ensuring that the object of the search is not compromised.

Retention of Documents

7.9 A document or storage device seized pursuant to this section may be retained for as long as the DPP or authorised prosecutor considers it necessary to retain it (rather than a copy) in connection with the investigation for the purposes of which the warrant was sought [Note: Section 66(7)].

7.10 If the DPP or authorised prosecutor has reasonable grounds for believing that such document or device may have to be produced for the purposes of any legal proceedings and that it might otherwise be unavailable for those proceedings, it may be retained until the proceedings are concluded. [Note: Section 66(8)]

Offences for non-compliance

7.11 A person commits an offence if:

a. without reasonable excuse [Note: "Reasonable excuse" is not defined and will depend on the circumstances of each case.], he fails to comply with a requirement imposed on him under section 62 (disclosure notices) or section 63 (production of documents);

b. in purported compliance with a requirement imposed on him under section 62 or 63 he makes a statement which is false or misleading in a material particular and does so knowing that it is false or misleading or being reckless as to whether it is false or misleading [Note: Either way offence. Carries maximum sentence of two years imprisonment on indictment or unlimited fine or both. On summary conviction, 12 months imprisonment or fine not exceeding £5,000 or both.];

c. he wilfully obstructs any person in the exercise of any rights conferred by a warrant under section 66 [Note: Offence summary only. Carries maximum sentence of 51 weeks imprisonment or fine not exceeding £5,000 or both.].

Arrest

7.12 Pursuant to section 24 of the Police and Criminal Evidence Act 1984 as amended by section 110 of SOCPA, these offences are arrestable.

Disclosure notice or search warrant?

7.13 A decision will need to be made as to whether it is appropriate to issue a disclosure notice or apply for a search warrant. The police or members of staff of NCA will need to provide the prosecutor with sufficient information to enable the prosecutor to make a reasoned decision.

7.14 Consideration will need to be given as to whether it is anticipated that the witness would permit entry to the premises and co-operate with a disclosure notice and whether prejudice would be caused to the investigation by a failure to co-operate. If there is a more than fanciful doubt that that recipient will comply with the notice then a warrant may be the preferred option.

7.15 Prosecutors will have to be able to justify this decision in order to persuade a magistrate that a warrant is necessary.

[Paragraphs 7.16 - 7.17 redacted]

Service of a disclosure notice - s.69

7.18 The notice may be given to a person by:

a. delivering it to him

b. leaving it at his proper address

c. sending it by post to him at that address

7.19 A body corporate can be personally served by giving the notice to the secretary or clerk of that body. For a partnership it can be given to a partner or a person having control or management of the partnership business. In the case of an unincorporated association it can be given to an officer of the association.

7.20 For the purposes of this section the proper address of a person is his usual or last known address, whether residential or otherwise. However, in the case of a body corporate, it is the registered or principle office in the UK, in the case of a partnership or an unincorporated association it is the principle office in the UK.

Youths

7.21 The Act applies to youths. However, there should be compelling reasons for requiring youths to produce documents, provide information and, in particular, answer questions. A copy of the notice should also be served on the parent or guardian at the same time it is served on the youth. Where a youth is required to answer questions he/she should have an appropriate adult with him/her.

8. [Section 8 redacted]

9. Levels Of Authorisation

9.1 It is for the Director of Public Prosecutions to decide on the extent to which Crown Prosecutors can exercise these powers and the level at which authorisation must take place.

[Paragraphs 9.2 - 9.4 redacted]

10. Drafting The Notice

Contents of the notice

10.1 A notice should not be couched too widely but should confine itself to a particular class of documents immediately relevant to the point at issue, particularly having regard to the venue and period of notice. The notice should therefore be as specific as possible, having regard to the nature and circumstances of the investigation and should specify the categories of documents to be produced. For example:

a. types of document sought (e.g. bank statements, invoices);

b. dates of documents (e.g. between relevant dates, or a period);

c. particular persons involved (e.g. correspondence, internal memoranda, meeting notes involving X and Y).

10.2 Documents may be requested in electronic form.

10.3 When specifying time in the notice it should be borne in mind that locating voluminous documentation may place a considerable burden on the recipient. For this reason it may be desirable to contact in advance the person on whom the notice is to be served and ask them to provide a reasonable time in which the documentation can be retrieved. The notice can then be dated accordingly.

10.4 Where the notice requires a person to attend and answer questions, it should set out date, time and location and provide a short explanation as to the purpose of the interview. The notice does not need to set out all the questions that will be asked - clearly new questions will arise as an interview takes its course. However, the notice should set out the areas to be explored and give some estimate as to how long the interview is likely to last.

10.5 It is good practice for the production order or warrant specifically to exclude material to which LPP attaches, using the following wording:

"other than those documents which any person would be entitled to refuse to disclose or produce in the High Court on the grounds of legal professional privilege."

10.6 A full note should be made of all telephone conversations and all correspondence should be retained on file.

[Paragraphs 10.7 - 10.8 redacted]

Legal professional privilege

10.9 Prosecutors may be faced with assertions - possibly blanket assertions - that material is subject to legal professional privilege. This does not have to be taken at face value.

10.10 Such assertions are not necessarily made with the intention of frustrating the investigation. Some recipients of disclosure notices may simply be uncertain about what constitutes material that is subject to legal professional privilege and consider that they are preserving their position by claiming privilege. In such cases it may be possible to resolve issues by negotiation.

10.11 Where it is not possible to do so, then an independent lawyer should be appointed, if the recipient agrees, to arbitrate, on the understanding that both sides will abide by his/her views. The recipient should be able to instruct the lawyer as to his/her views.

10.12 If the recipient is not prepared to agree to negotiation then it may be necessary to obtain a warrant to obtain the disputed material. In such circumstances the material should be sealed and the opinion of an independent lawyer sought.

Obstructing the investigation

10.13 It should be noted that there is no offence of tipping off or disclosing information likely to prejudice an investigation attached to these provisions, as there is pursuant to section 342 of the Proceeds of Crime Act 2002. This does not of course preclude the use of similar statutory or common law provisions.

11. Office Processes

Registering notices and warrants

11.1 Disclosure notices are formal legal documents. It is essential that every office sets up administrative systems to ensure that the legal requirements are complied with and that it can be shown that they have been complied with.

11.2 The following basic practices should be adopted.

11.3 A reliable form of certification of postal service must be in place, so that there can be no doubt as to whether or not a notice was actually sent out.

11.4 If it is not possible for a notice legitimately to be complied with and a new date or venue is agreed, a new notice must be issued. Written or oral amendments may cause difficulties in proving any non-compliance. The original notice should be formally cancelled and a new notice registered.

11.5 Warrants, once executed, should be returned and filed accordingly.

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