This is a pre-investigation power in relation to bribery and corruption. It is a power which enables directors of the SFO to have a look at the facts and assess whether there is anything material to warrant a launch of a full scale investigation.
How and when does the SFO use this power
It is a power that is used before a formal investigation has begun. It helps to deal with the problems of international/overseas bribery and corruption cases where there is not enough information to go on to start an investigation. This power therefore allows for pre-investigation to take place to assess evidence to conclude whether a full scale investigation should be commenced by the SFO. It is an evidence gathering power.
The SFO relies on these powers to gather information at a pre-investigation stage. If it were not for these powers the SFO would not be able to do the following at the pre-investigation stage:
- compel the production of documents;
- require answers to questions; or
- search premises.
The SFO use their powers under section 2A to carry out pre-investigations of companies in relation to overseas bribery and corruption where it has grounds to suspect that bribery has been committed but does not have enough information to decide on whether it can embark on a full investigation. The test which the SFO has to be satisfied before using such powers is therefore very low.
Safeguards of the Section 2A powers
It is important to understand that:
- It is not a power intended to speculate fishing expeditions.
- The directors must have some basis for considering that actual corruption may have occurred.
- It must be proportionate.
- It should be used for a limited period of time. This means that where there is sufficient information gathered to determine that a full scale investigation can be opened the power must cease to be used.
Failure to comply with Section 2A, just as with other Section 2 powers, carries a separate criminal liability.
Section 2A is a significant and conducive power available to the SFO to help in the gathering of evidence in cases of possible overseas corruption and bribery where there is insufficient evidence to determine whether or not to launch or open a full scale investigation. It is arguable that without it there would be numerous missed opportunities to conduct an investigation due to insufficient evidence.
It is however a power which must be used with care, caution and in compliance with adherence to the safeguards to avoid any abuse of power.