By Sharon Fryer
A number of official bodies have the power to enter and search your premises (including vessels), without any advance notice, to investigate potential breaches of the legislation which they are tasked with enforcing.
You may think of these investigations (often called “dawn raids” although they can happen at any time of day) in the context of financial crimes – insider dealing, tax fraud, cartels and the like. However, a dawn raid could also be carried out by:
- Marine Accident Investigation Branch (“MAIB”) inspectors – investigating marine accidents;
- Health and Safety Executive inspectors – to monitor/investigate health and safety at work;
- Environment Agency inspectors – to investigate or control pollution; and
- Environmental Health officers – enforcing food safety and hygiene laws.
Investigators in any of these areas can exercise broad powers under their respective authorising legislation, which may include power to enter and search premises, carry out examinations and investigations,, take measurements, photographs and samples of materials, take originals or copies of documents, and require individuals to answer their questions.
In relation to the first of these, which is the type of investigation most closely linked to shipping, the MAIB inspectors have the express power to enter both premises on both land and ships and can make dawn raids in circumstances where they believe there is a “dangerous” situation.
It is very unlikely that senior management will be the first people the investigators see upon arrival. So, it is important to have a plan in place, in case of any such investigation, and to communicate that plan to all staff. The plan should make sure everyone knows what they need to do, to make sure you comply with your legal obligations in a way that minimises the impact on the business and appropriately protects your confidential and legally-privileged material.
A good plan should include taking steps to:
- Require investigators to produce the document which authorises the search, setting out its purpose and scope;
- Alert key staff and, ideally, legal advisers, as soon as possible;
- Ensure that all potential evidence is preserved, including suspending any normal document destruction schedules;
- Identify any material which may be protected against disclosure, to avoid inadvertently releasing anything which the investigators are not entitled to require;
- Identify key people to speak to investigators – while investigators have power to speak to whoever they choose, it is in everyone’s interests that they should speak to those best able to give accurate answers;
- Arrange appropriate facilities and supervision for the investigators, so that they can carry out their work effectively, and to ensure they stay within their permitted scope;
- Keep a record of what the investigators do at the premises and the matters revealed by their search; and
- Following the search, review what has been revealed and plan next steps.
While investigators do not have to delay starting their work until the key staff have arrived, or carry it out in a way to suit the business, if you show yourself to be calm and well-organised, and offer sensible, practical ways for them to do their job, the process can be made much more efficient and less disruptive.