Investigatory powers of the Director of Public Prosecutions

The Director of Public Prosecutions (DPP) is responsible for all criminal prosecutions in England and Wales and has the power to intervene in a prosecution when they deem it necessary. The DDP has several powers to utilise in the course of an investigation which come under Sections 60-70 of the Serious Organised Crime and Police Act 2005 (‘the Act).

This article will explore the various powers available to the DPP.

The power to issue a disclosure notice

The DPP has the power to issue a disclosure notice under section 60 of the Act. This power can be enforced by the DPP or delegated to an authorised prosecutor. The delegation can be as wide/narrow as the DPP determines is appropriate. The DPP or the authorised prosecutor must sign the notice.

A disclosure notice is detailed in s.62(3) of the Act and can require the recipient to answer questions, produce documents and produce information relevant to an investigation.

A notice needs to state how, when and where it is to be complied with and can require immediate compliance. It should name an authorised person to serve the notice to the recipient and to receive documentation from them.

Under s.62(1) of the Act, there must be reasonable grounds to suspect an offence has been committed under 61(1) and (2); that the individual subjected to the notice has information relevant to the investigation and reasonable grounds exist to believe.

The notice should be as specific as possible and detail; types of documents required, dates of documents and named individuals. The notice may be served by, delivering it to him, leaving it at his proper address or sending it by post to him at that address.

Disclosure notices must ensure a reliable form of certification of postal service is in place. If a notice cannot be complied with and a new date or venue is agreed, a new notice must be issued. Once a warrant is executed it should be returned and filed accordingly.

Scope of the powers

The powers only apply to the following:

• The lifestyle offences listed in Schedule 2 of the Proceeds of Crime Act 2002 in England and Wales
• Offences under sections 15 – 18 of the Terrorism Act 2000 (offences relating to fund-raising, money laundering etc.)
• Any offence under section 170 of the Customs and Excise Management Act 1979 (fraudulent evasion of duty) or section 72 of the Value Added Tax Act 1994 (offences relating to VAT) which is a qualifying offence
• Any offence under section 17 of the Theft Act 1968 or any offence at common law of cheating in relation to the public revenue, which is a qualifying offence
• Any offence under the Bribery Act 2010
• Any offence under section 45 or 46 of the Criminal Finances Act 2017 (failure to prevent the facilitation of UK tax evasion offences or foreign tax evasion offences)
• Any offence under regulations under section 1 of the Sanctions and Anti-Money Laundering Act 2018 (Sanctions Regulations) which is specified by those regulations by virtue of section 17(8) of that Act
• An offence under section 199 of the Economic Crime and Corporate Transparency Act 2023 (failure to prevent fraud offences)
• 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.

A qualifying offence is an offence certified in the opinion of the Investigating Authority as follows:

• In the case of an offence in paragraph (d) 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;
• In the case of an offence under section 17 of the Theft Act 1968 the offence involved or would have involved a loss or gain, or potential loss or gain, of an amount not less than £5,000.

Requiring A Person to Answer Questions s62(3)(a)

Section 62(3)(a) of the Act enables the DPP/authorised prosecutor to compel the individual whom the notice is served on to answer questions relevant to the investigation.

Interviews in accordance with s. 62(3)(a) of the Act are conducted by a constable or the National Crime Agency (NCA). These interviews are not conducted under PACE so there is no obligation to provide disclosure of questions pre-interview although a description of the desired information ought to be provided in the notice. Documentation is sometimes provided to assist the interviewee though.

Interviews will usually be conducted at police or NCA facilities due to capability to record the interview but can be conducted at other premises if feasible. The police or NCA will be responsible for providing transcripts if requested.

Following R v Director of Serious Fraud Office, ex parte Smith [1993] AC1, HL, the House of Lords determined that the power of the Serious Fraud Office to oblige a witness to answer questions is an ongoing power post-charge.

Production Of Documents – section 63

When a disclosure notice has been served an authorised person can:

• Seize copies/extracts from documents in accordance with the terms of the disclosure notice
• Compel the recipient to give an explanation for the documents.

Documents seized in accordance with s63(3) can be held as long as deemed necessary by the DPP/authorised prosecutor whilst they are relevant to the investigation.

Section 63(4) details that where there are reasonable grounds to think that documents seized may be required to be produced for legal proceedings and otherwise unavailable, documents can be retained until such proceedings concluded.

Section 63(5) provides that if the individual served the disclosure notice to provide documents fails to do so they can be required to state to the best of their knowledge what the documents are.

Section 70 details that documents seized must be produced in a readable form which includes encrypted data that must be produced in a legible format.

Exceptions to Requiring of Information – section 64

The exceptions include:

• Legal professional privilege Section 64(1) – (4)
• Section 11 PACE excluded material Section 64 (5)
• Confidential banking information Section 64(8)
• Restrictions on use of statements

A statement pursuant to s.62 or s.63 cannot be used in any other proceedings other than:

• Proceedings pursuant to section 67 failing to comply with a disclosure notice
• Proceedings for an offence of giving a false declaration or statement contrary to s.5 Perjury Act 1911
• Proceedings for some other offence where a statement is made which is inconsistent with the relevant statement and evidence relating to that statement is adduced/ a question is asked about it.

Power To Enter and Seize Documents S.66

An application for a search warrant should be made to a Magistrates’ Court under section 66 of the Act. This is required to be laid on oath by the DPP/authorised prosecutor.

Section 66 (2) details the requirements to authorise a search warrant. The powers authorised by the warrant come under s.66(3).

Documents seized under this section can be retained as long the DPP deems it required to do so for the purposes of the warrant.

Non-compliance

An offence is committed if an individual without reasonable excuse fails to comply with requirement under s.62 or s.63 of the Act, or if he makes a statement which is false or misleading or reckless as to whether its false or misleading. On indictment, the offence carries a maximum sentence of two years imprisonment on indictment or unlimited fine or both. On summary conviction the offence carries 12 months’ imprisonment or a fine not exceeding £5,000 or both.

An offence is also committed If the individual wilfully obstructs any person in the exercise of any rights conferred by a warrant under section 66. This offence is summary only. This offence carries a maximum sentence of 51 weeks imprisonment or fine not exceeding £5,000 or both.

Offences under the Act are arrestable under s.24 of the Police and Criminal Evidence Act 1984 as amended by section 110 of SOCPA.

Disclosure notice or search warrant?

The prosecutor is responsible for deciding whether to issue a disclosure notice or apply for a search warrant. The prosecutor will consider whether the person would allow entry or cooperate with a disclosure notice and whether the intervention would lead to a failure to co-operate. The prosecutor will need explain their reasoning to persuade a magistrate of the need for a warrant.

Legal professional privilege

Where it is argued that material is subject to legal professional privilege it may contested by prosecutors. Prosecutors may argue this is done to frustrate the investigation although some may be simply unsure which material is subject to legal professional privilege. This can be resolved by arbitration. If the person is unwilling to engaged in arbitration/negotiation it is possible to obtain a warrant to obtain the material.

Obstructing the investigation

Specific provisions are not detailed in the legislation, but statutory or common law provisions can be used against a person who obstructs the investigation.

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