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Part IU.K. Fraud

Serious Fraud OfficeU.K.

1 The Serious Fraud Office.E+W+N.I.

(1)A Serious Fraud Office shall be constituted for England and Wales and Northern Ireland.

(2)The Attorney General shall appoint a person to be the Director of the Serious Fraud Office (referred to in this Part of this Act as “the Director”), and he shall discharge his functions under the superintendence of the Attorney General.

(3)The Director may investigate any suspected offence which appears to him on reasonable grounds to involve serious or complex fraud.

(4)The Director may, if he thinks fit, conduct any such investigation in conjunction either with the police or with any other person who is, in the opinion of the Director, a proper person to be concerned in it.

(5)The Director may—

(a)institute and have the conduct of any criminal proceedings which appear to him to relate to such fraud; and

(b)take over the conduct of any such proceedings at any stage.

(6)The Director shall discharge such other functions in relation to fraud as may from time to time be assigned to him by the Attorney General.

[F1(6A)The Director has the functions conferred on him by, or in relation to, [F2Part 2, 4, 5, 7] or 8 of the Proceeds of Crime Act 2002 (c. 29) ([F3confiscation proceedings in England and Wales and Northern Ireland, civil recovery proceedings, money laundering and investigations]).]

(7)The Director may designate for the purposes of subsection (5) above any member of the Serious Fraud Office who is—

(a)a barrister in England and Wales or Northern Ireland;

(b)a solicitor of the [F4Senior Courts]; or

(c)a [F5solicitor of the Court of Judicature of Northern Ireland].

(8)Any member so designated shall, without prejudice to any functions which may have been assigned to him in his capacity as a member of that Office, have all the powers of the Director as to the institution and conduct of proceedings but shall exercise those powers under the direction of the Director.

F6(9). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F6(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(12)Any member so designated who is a barrister in Northern Ireland or a [F5solicitor of the Court of Judicature of Northern Ireland] shall have—

(a)in any court the rights of audience enjoyed by [F5solicitors of the Court of Judicature of Northern Ireland] and, in the Crown Court in Northern Ireland, such additional rights of audience as may be given by virtue of subsection (14) below; and

(b)in the Crown Court in Northern Ireland, the rights of audience enjoyed by barristers employed by the Director of Public Prosecutions for Northern Ireland.

(13)Subject to subsection (14) below, the reference in subsection (12)(a) above to rights of audience enjoyed by [F5solicitors of the Court of Judicature of Northern Ireland] is a reference to such rights enjoyed in the Crown Court in Northern Ireland as restricted by any direction given by the Lord Chief Justice of Northern Ireland under section 50 of the M1Judicature (Northern Ireland) Act 1978.

(14)For the purpose of giving any member so designated who is a barrister in Northern Ireland or a [F5solicitor of the Court of Judicature of Northern Ireland] additional rights of audience in the Crown Court in Northern Ireland, the Lord Chief Justice of Northern Ireland may direct that any direction given by him under the said section 50 shall not apply to such members.

(15)Schedule 1 to this Act shall have effect.

(16)For the purposes of this section (including that Schedule) references to the conduct of any proceedings include references to the proceedings being discontinued and to the taking of any steps (including the bringing of appeals and making of representations in respect of applications for bail) which may be taken in relation to them.

(17)In the application of this section (including that Schedule) to Northern Ireland references to the Attorney General are to be construed as references to him in his capacity as [F7Advocate General for Northern Ireland].

Textual Amendments

F2Words in s. 1(6A) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 4(a); S.I. 2018/78, reg. 5(1)(b)

F3Words in s. 1(6A) substituted (27.4.2017 for specified purposes, 31.1.2018 for E.W. in so far as not already in force) by Criminal Finances Act 2017 (c. 22), s. 58(5)(6), Sch. 5 para. 4(b); S.I. 2018/78, reg. 5(1)(b)

F6S. 1(9)-(11) repealed (31.7.2000) by 1999 c. 22, s. 106, Sch. 15 Pt II (with Sch. 14 paras. 7(2), 36(9)); S.I. 2000/1920, art. 2(c)

Marginal Citations

2 Director’s investigation powers.U.K.

(1)The powers of the Director under this section shall be exercisable, but only for the purposes of an investigation under section 1 above, [F8or, on a request made by the Attorney General of the Isle of Man, Jersey or Guernsey, under legislation corresponding to that section and having effect in the Island whose [F9 an authority entitled to make such a request],] in any case in which it appears to him that there is good reason to do so for the purpose of investigating the affairs, or any aspect of the affairs, of any person.

[F10(1A)The authorities entitled to request the Director to exercise his powers under this section are—

(a)the Attorney-General of the Isle of Man, Jersey or Guernsey, acting under legislation corresponding to section 1 of this Act and having effect in the Island whose Attorney-General makes the request; and

[F11(b)the Secretary of State acting under section 15(2) of the Crime (International Co-operation) Act 2003, in response to a request received from a person mentioned in section 13(2) of that Act (an “overseas authority”).]

(1B)The Director shall not exercise his powers on a request from the Secretary of State acting in response to a request received from an overseas authority within subsection (1A)(b) above unless it appears to the Director on reasonable grounds that the offence in respect of which he has been requested to obtain evidence involves serious or complex fraud.]

(2)The Director may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other person whom he has reason to believe has relevant information to [F12answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith].

(3)The Director may by notice in writing require the person under investigation or any other person to produce at [F13such place as may be specified in the notice and either forthwith or at such time as may be so specified,] any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified [F13description] which appear to him so to relate; and—

(a)if any such documents are produced, the Director may—

(i)take copies or extracts from them;

(ii)require the person producing them to provide an explanation of any of them;

(b)if any such documents are not produced, the Director may require the person who was required to produce them to state, to the best of his knowledge and belief, where they are.

(4)Where, on information on oath laid by a member of the Serious Fraud Office, a justice of the peace is satisfied, in relation to any documents, that there are reasonable grounds for believing—

(a)that—

(i)a person has failed to comply with an obligation under this section to produce them;

(ii)it is not practicable to serve a notice under subsection (3) above in relation to them; or

(iii)the service of such a notice in relation to them might seriously prejudice the investigation; and

(b)that they are on premises specified in the information,

he may issue such a warrant as is mentioned in subsection (5) below.

(5)The warrant referred to above is a warrant authorising any constable—

(a)to enter (using such force as is reasonably necessary for the purpose) and search the premises, and

(b)to take possession of any documents appearing to be documents of the description specified in the information or to take in relation to any documents so appearing any other steps which may appear to be necessary for preserving them and preventing interference with them.

(6)Unless it is not practicable in the circumstances, a constable executing a warrant issued under subsection (4) above shall be accompanied by an appropriate person.

[F14(6A)Where an appropriate person accompanies a constable, he may exercise the powers conferred by subsection (5) but only in the company, and under the supervision, of the constable.]

(7)In [F15this section] “appropriate person” means—

(a)a member of the Serious Fraud Office; or

(b)some person who is not a member of that Office but whom the Director has authorised to accompany the constable.

(8)A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him—

(a)on a prosecution for an offence under subsection (14) below; or

(b)on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.

[F16(8AA)However, the statement may not be used against that person by virtue of paragraph (b) of subsection (8) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of that person in the proceedings arising out of the prosecution.]

[F17(8A)Any evidence obtained by the Director for use by an overseas authority shall be [F18given to the overseas authority which requested it or given to the Secretary of State for forwarding to that overseas authority)].

F19(8B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8C)Where any evidence obtained by the Director for use by an overseas authority consists of a document the original or a copy shall be [F20forwarded], and where it consists of any other article the article itself or a description, photograph or other representation of it shall be [F20forwarded], as may be necessary in order to comply with the request of the overseas authority.]

[F21(8D)The references in subsections (8A) to (8C) above to evidence obtained by the Director include references to evidence obtained by him by virtue of the exercise by a constable [F22or by an appropriate person], in the course of a search authorised by a warrant issued under subsection (4) above, of powers conferred by section 50 of the Criminal Justice and Police Act 2001.]

(9)A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.

(10)A person shall not under this section be required to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business unless—

(a)the person to whom the obligation of confidence is owed consents to the disclosure or production; or

(b)the Director has authorised the making of the requirement or, if it is impracticable for him to act personally, a member of the Serious Fraud Office designated by him for the purposes of this subsection has done so.

[F23(10A)Nothing in this section is to be read as enabling a person to secure the disclosure by a telecommunications operator or postal operator of communications data without the consent of the operator.

(10B)In subsection (10A) “communications data”, “postal operator” and “telecommunications operator” have the same meanings as in the Investigatory Powers Act 2016 (see sections 261 and 262 of that Act).]

(11)Without prejudice to the power of the Director to assign functions to members of the Serious Fraud Office, the Director may authorise any competent investigator (other than a constable) who is not a member of that Office to exercise on his behalf all or any of the powers conferred by this section, but no such authority shall be granted except for the purpose of investigating the affairs, or any aspect of the affairs, of a person specified in the authority.

(12)No person shall be bound to comply with any requirement imposed by a person exercising powers by virtue of any authority granted under subsection (11) above unless he has, if required to do so, produced evidence of his authority.

(13)Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(14)A person who, in purported compliance with a requirement under this section—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular,

shall be guilty of an offence.

(15)A person guilty of an offence under subsection (14) above shall—

(a)on conviction on indictment, be liable to imprisonment for a term not exceeding two years or to a fine or to both; and

(b)on summary conviction, be liable to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.

(16)Where any person—

(a)knows or suspects that an investigation by the police or the Serious Fraud Office into serious or complex fraud is being or is likely to be carried out; and

(b)falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of documents which he knows or suspects are or would be relevant to such an investigation,

he shall be guilty of an offence unless he proves that he had no intention of concealing the facts disclosed by the documents from persons carrying out such an investigation.

(17)A person guilty of an offence under subsection (16) above shall—

(a)on conviction on indictment, be liable to imprisonment for a term not exceeding 7 years or to a fine or to both; and

(b)on summary conviction, be liable to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or to both.

[F24(18)In this section—

(19)In the application of this section to Scotland, the reference to a justice of the peace is to be construed as a reference to the sheriff; and in the application of this section to Northern Ireland, subsection (4) above shall have effect as if for the references to information there were substituted references to a complaint.

Textual Amendments

F9Words in s. 2(1) substituted (3.2.1995) by 1994 c. 33, s. 164(2)(a); S.I. 1995/127, art. 2(1), Sch. 1

F10S. 2(1A)(1B) inserted (3.2.1995) by 1994 c. 33, s. 164(2)(b); S.I. 1995/127, art. 2, Sch. 1

F16S. 2(8AA) inserted (14.4.2000 for E.W.N.I., 1.1.2001 for S.) by 1999 c. 23, s. 59, Sch. 3 para. 20 (with s. 63(2), Sch. 7 paras. 3(3), 5(2)); S.I. 2000/1034, art. 2(a); S.S.I. 2000/445, art. 2

F17S. 2(8A)-(8C) inserted (3.2.1995) by 1994 c. 33, s. 164(2)(c); S.I. 1995/127, art. 2, Sch. 1

F18Words in s. 2(8A) substituted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), s. 94(1), Sch. 5 para. 12(b); S.I. 2004/786, art. 3(1)(2) (with savings in S.I. 2004/787, art. 3)

F20Word in s. 2(8C) substituted (26.4.2004) by Crime (International Co-operation) Act 2003 (c. 32), s. 94(1), Sch. 5 para. 12(d); S.I. 2004/786, art. 3(1)(2) (with savings in S.I. 2004/787, art. 3)

Modifications etc. (not altering text)

C1S. 2(5): powers of seizure extended (1.4.2003) by Criminal Justice and Police Act 2001 (c. 16), ss. 50, 138(2), Sch. 1 para. 44 (with ss. 52-54, 68); S.I. 2003/708, art. 2(a)

[F262ADirector's pre-investigation powers in relation to bribery and corruption: foreign officers etcU.K.

(1)The powers of the Director under section 2 are also exercisable for the purpose of enabling him to determine whether to start an investigation under section 1 in a case where it appears to him that conduct to which this section applies may have taken place.

(2)But—

(a)the power under subsection (2) of section 2 is so exercisable only if it appears to the Director that for the purpose of enabling him to make that determination it is expedient to require any person appearing to him to have relevant information to do as mentioned in that subsection, and

(b)the power under subsection (3) of that section is so exercisable only if it appears to the Director that for that purpose it is expedient to require any person to do as mentioned in that subsection.

(3)Accordingly, where the powers of the Director under section 2 are exercisable in accordance with subsections (1) and (2) above—

(a)the reference in subsection (2) of that section to the person under investigation or any other person whom the Director has reason to believe has relevant information is to be read as a reference to any such person as is mentioned in subsection (2)(a) above,

(b)the reference in subsection (3) of that section to the person under investigation or any other person is to be read as a reference to any such person as is mentioned in subsection (2)(b) above, and

(c)any reference in subsection (2), (3) or (4) of that section to the investigation is to be read as a reference to the making of any such determination as is mentioned in subsection (1) above.

(4)Any reference in section 2(16) to the carrying out of an investigation by the Serious Fraud Office into serious or complex fraud includes a reference to the making of any such determination as is mentioned in subsection (1) above.

[F27(5)This section applies to any conduct—

(a)which, as a result of section 3(6) of the Bribery Act 2010, constitutes an offence under section 1 or 2 of that Act under the law of England and Wales or Northern Ireland, or

(b)which constitutes an offence under section 6 of that Act under the law of England and Wales or Northern Ireland.]]

Textual Amendments

3 Disclosure of information.E+W+N.I.

(1)Where any information [F28to which section 18 of the Commissioners for Revenue and Customs Act 2005 would apply but for section 18(2)] has been disclosed by [F29Her Majesty’s Revenue and Customs] to any member of the Serious Fraud Office for the purposes of any prosecution of [F30an offence relating to a former Inland Revenue matter], that information may be disclosed by any member of the Serious Fraud Office—

(a)for the purposes of any prosecution of which that Office has the conduct;

(b)to [F31the Crown Prosecution Service] for the purposes of any prosecution of [F30an offence relating to a former Inland Revenue matter]; F32...

(c)to the Director of Public Prosecutions for Northern Ireland for the purposes of any prosecution of [F30an offence relating to a former Inland Revenue matter] [F33; and

(d)in order to comply with a requirement imposed under paragraph 7 of the Schedule to the Crown Prosecution Service Inspectorate Act 2000,]

but not otherwise.

(2)Where the Serious Fraud Office has the conduct of any prosecution of an offence which does not relate to inland revenue, the court may not prevent the prosecution from relying on any evidence under section 78 of the M2Police and Criminal Evidence Act 1984 (discretion to exclude unfair evidence) by reason only of the fact that the information concerned was disclosed by [F29Her Majesty’s Revenue and Customs] for the purposes of any prosecution of [F30an offence relating to a former Inland Revenue matter].

(3)Where any information is subject to an obligation of secrecy imposed by or under any enactment other than an enactment contained in the M3Taxes Management Act 1970, the obligation shall not have effect to prohibit the disclosure of that information to any person in his capacity as a member of the Serious Fraud Office but any information disclosed by virtue of this subsection may only be disclosed [F34by a member of the Serious Fraud Office—

(a)for the purposes of any prosecution in England and Wales, Northern Ireland or elsewhere, or

(b)in order to comply with a requirement imposed under paragraph 7 of the Schedule to the Crown Prosecution Service Inspectorate Act 2000,

and] may only be disclosed by such a member if he is designated by the Director for the purposes of this subsection.

(4)Without prejudice to his power to enter into agreements apart from this subsection, the Director may enter into a written agreement for the supply of information to or by him subject, in either case, to an obligation not to disclose the information concerned otherwise than for a specified purpose.

(5)Subject to subsections (1) and (3) above and to any provision of an agreement for the supply of information which restricts the disclosure of the information supplied, information obtained by any person in his capacity as a member of the Serious Fraud Office may be disclosed by any member of that Office designated by the Director for the purposes of this subsection—

(a)to any government department or Northern Ireland department or other authority or body discharging its functions on behalf of the Crown (including the Crown in right of Her Majesty’s Government in Northern Ireland);

(b)to any competent authority;

[F35(c)for the purposes of any criminal investigation or criminal proceedings, whether in the United Kingdom or elsewhere]

(d)for the purposes of assisting any public or other authority for the time being designated for the purposes of this paragraph by an order made by the Secretary of State to discharge any functions which are specified in the order.

(6)The following are competent authorities for the purposes of subsection (5) above—

(a)an inspector appointed under Part XIV of the M4Companies Act 1985 F36...;

(b)an Official Receiver;

(c)the Accountant in Bankruptcy;

[F37(d)the official receiver for Northern Ireland;]

[F38(e)a person appointed under—

(i)section 167 of the Financial Services and Markets Act 2000 (general investigations),

(ii)section 168 of that Act (investigations in particular cases),

(iii)section 169(1)(b) of that Act (investigation in support of overseas regulator),

(iv)section 284 of that Act (investigations into affairs of certain collective investment schemes), or

(v)regulations made as a result of section 262(2)(k) of that Act (investigations into open-ended investment companies),

to conduct an investigation;

(f)a body corporate established in accordance with section 212(1) of the Financial Services and Markets Act 2000 (compensation scheme manager);]

(l)any body having supervisory, regulatory or disciplinary functions in relation to any profession or any area of commercial activity; F39...

(m)any person or body having, under the law of any country or territory outside the United Kingdom, functions corresponding to any of the functions of any person or body mentioned in any of the foregoing paragraphs.

[F40(n)any person or body having, under [F41a] treaty to which the United Kingdom is a party, the function of receiving information of the kind in question,

(o)any person or body having, under the law of any country or territory outside the United Kingdom, the function of receiving information relating to the proceeds of crime]

(7)An order under subsection (5)(d) above may impose conditions subject to which, and otherwise restrict the circumstances in which, information may be disclosed under that paragraph.

[F42(8)In subsections (1) and (2) “former Inland Revenue matter” means a matter listed in Schedule 1 to the Commissioners for Revenue and Customs Act 2005 except for paragraphs 2, 10, 13, 14, 15, 17, 19, 28, 29 and 30.]

Textual Amendments

F37S. 3(6)(d) substituted (N.I.) (1.10.1991) by S.I. 1989/2405 (N.I. 19), arts. 1(2), 381, Sch. 9 Pt. II para. 57; S.R. 1991/411, art. 2.

F38S. 3(6)(e)(f) substituted (1.12.2001) for s. 3(6)(e)-(k) by S.I. 2001/3649, arts. 1, 308

Marginal Citations