Tuesday, October 21, 2014
What do I do if I receive a Serious Organised Crime and Police Act 2005 disclosure notice?
The Police and HMRC are increasingly using their powers under the Serious Organised Crime and Police Act 2005 to require information from innocent parties who are not accused of a criminal offence but who can be compelled by law to provide information whether they like it or not.
What is a Section 62 disclosure notice?
Section 62 of SOCPA defines when a disclosure notice may be used and what it can demand. A disclosure notice may be used when it appears to the Investigating Authority—
(a) that there are reasonable grounds for suspecting that an offence to which this Chapter applies has been committed,
(b) that any person has information (whether or not contained in a document) which relates to a matter relevant to the investigation of that offence, and
(c) that there are reasonable grounds for believing that information which may be provided by that person in compliance with a disclosure notice is likely to be of substantial value (whether or not by itself) to that investigation,
A disclosure notice does not require any great specificity (see R v Secretary of State ex p Finnifest) however the CPS internal guidance does recommend that specifics are given.
A disclosure notice under s62 allows the prosecutor to require the person subject to the notice to answer any questions about any matter relevant to the investigation. The interview is not subject to the terms of the Police and Criminal Evidence Act 1984 (“PACE”) but the interview will be tape recorded. As can be seen the notice should and does assert the grounds for the issue of the notice and the time, place and manner in which the information must be provided.
As the interview is not a PACE interview there is no requirement to wait until a solicitor arrives for an interview to commence and there is in fact no obligation to allow a solicitor to be present although it is usually allowed. There is no right to silence when s62 powers are used, making compliance compulsory.
When documents are required to be produced the person requiring them can take copies or extracts from the documents and ask the person producing them to provide an explanation about them (s63(2)) and the documentation may be retained for as long as is necessary for the investigation or until legal proceedings are concluded. Under s70 the documentation provided must be in legible form.
It is an offence for a person having received the notice to fail to comply with its terms without reasonable excuse and it is a further offence to make a false or misleading reply to a material particular whether that was done knowingly or recklessly. The exceptions to compliance with a notice are set out in s64 and are:
- A person may not be required under section 62 or 63 to answer any privileged question, to provide any privileged information, or to produce any privileged document,
- Except that a lawyer may be required to provide the name and address of a client of his.
- A person may not be required under section 62 to produce any excluded material (as defined by s11 of PACE.
Under s65 a statement made by a person in response to a requirement imposed under section 62 or 63 may not be used in evidence against him in any criminal proceedings unless the person is being prosecuted for an offence under section 67 of the act (failure to comply with a notice) or for an offence under s5 of the Perjury Act 1911 (c 6) (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath), or for an offence under [s44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (c 39)] (false statutory declarations and other false statements without oath) or at common law for an offence of attempting to pervert the course, or defeat the ends, of justice.
This does not apply to documents produced which may be used against the person producing them (AG’s reference No 7 of 2000 as approved by C plc v P (the AG intervening)) in that case the court heard that the documents produced which were obtained under compulsion but did not contain compulsorily made statements did not violate P’s right to a fair trial and were therefore admissible.
Complying with the terms of disclosure notice is taken seriously and under s67 of the Act failure to comply with the terms of a disclosure notice carries a term of imprisonment of up to 51 weeks. Offering false or misleading answers carries a term of imprisonment of up to 2 years.
What can the recipient of a disclosure notice do?
Firstly check if the disclosure notice is valid. Your lawyer should check to see if the notice itself is procedurally valid and if the person who signed the notice has had power delegated to him to issue the notice by the DPP. It is also important to check that the matter under investigation involves qualifying offences for the purposes of s61(2) and the potential loss is over £5,000.
The question of the validity of the notice may relate to whether the matters are relevant to the investigation and/or whether the information will be of substantial value to the investigation. The above matters are very general and have a relatively low hurdle especially the question of whether the matters are ‘relevant to the investigation’.
Can you avail yourself of any of the exceptions to the notice?
The exceptions in s64 relate to privileged material and excluded material.
The Act defines privileged material as material which is subject to Legal Professional Privilege. That privilege only attaches to communications between legally qualified entities and those whom they are instructed to represent.
As to s11 of PACE ‘excluded material’ means “personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which he holds in confidence.”
‘Personal records’ these are defined under s12 of PACE as being documentary or other records concerning an individual and relating to his physical or mental health or to spiritual counselling given to him or counselling given to him for his personal welfare.
Are there any other methods of challenge to the notice?
Article 8 of the Human Rights Act states that everyone has a right to respect for his private and family life, his home and his correspondence. It is the “correspondence” part of this right that applies to recorded information that is often sought under disclosure notices. Article 8 states that public authorities should not interfere with this right except where the law permits them to and when it is necessary in a democratic society. It could be argued that the notice is a breach of Article 8. Such a breach could form the basis of a judicial review on the basis that the issuing of the notice was unlawful and in breach of the Human Rights Act.
It may also be arguable in some circumstances that compliance with a notice is in breach of the common law duty of confidentiality. The common law duty recognises that some information has a quality of confidence, which means that the individual or organisation that provided the information has an expectation that it will not be shared with or disclosed to others. For information to have a quality of confidence it is generally accepted that:
- it it is not “trivial” in its nature
- it is not in the public domain or easily available from another source
- it has a degree of sensitivity
- it has been communicated for a limited purpose and in circumstances where the individual or organisation is likely to assume an obligation of confidence. For example information shared between a solicitor/client, health practitioner/patient, etc.
However, as with the Human Rights Act, confidentiality is a qualified right. The prosecution are able to override a duty of confidence when it is required by law, or if it is in the public interest to do so.
It is open to launch Judicial Review proceedings on the basis of a breach of Article 8 or a breach of our duty of confidentiality.
Non compliance with the notice
A final option available to a recipient of a notice is simply not to comply with the notice on the basis that compliance is not necessary on a strict basis. The act states that an offence is only committed if non compliance is without reasonable excuse.
There is not judicial or statutory definition of reasonable excuse. In keeping with other analogous statutes the defence places an ‘evidential burden’ on the recipient- they have to evidentially raise the defence, the prosecution would then have a legal burden of disproving the reasonable excuse to a criminal standard (‘sure’ or ‘beyond reasonable doubt’). One may argue that the factual matrix of the case with a breach of Article 8 rights and the breach of the duty of confidentiality on their own and in combination amount to a reasonable excuse for non compliance with the order. It would be for a court to consider whether this were in fact a reasonable excuse.
This is a high risk strategy. It involves wilful non compliance with the notice and the facing criminal proceedings and running a statutory defence. Factors to weigh into the equation are the fact that non compliance carries a potential 51 week prison sentence and that defending the prosecution is potentially expensive by way of both prosecution and defence costs.
If you receive a disclosure notice it is vital that you receive expert legal representation as soon as possible as the ramifications of non-compliance can be serious and as outlined above the law in respect of this is by no means straightforward.
If you have received a disclosure notice contact Quentin for a no obligation discussion.