1. What is serious or complex fraud?

There is no simple definition, so that what follows is intended merely as a guide. English law does not have a specific offence of fraud. Instead, it has a large number of individual fraud offences, all of which require that the accused was dishonest; and that he acted, or intended to act, so as to harm the rights of others. We agree that this itself sounds complex and so it may be easier to give some examples! Thus stealing, obtaining money or other property by deception, and falsifying accounts, are all examples of fraud offences. It is likely that the facts of most fraud cases which you are investigating will fit into one or more of our fraud offences.

Whether or not a fraud is serious is a question of fact. At the Serious Fraud Office, we use as a rough guide the figure of GBP 1 million being lost or at risk of being lost as a result of the fraud. This figure is not final in deciding whether a fraud is serious, however, so that if the amount involved in your fraud is less than GBP 1 million, you should still consider asking us about it. Other factors, apart from the amount of money involved, can make a fraud serious - for example, widespread public concern, or the involvement of prominent local citizens.

Whether or not a fraud is complex is, again, a question of fact. For example, if it involves a large number of financial transactions, particularly transactions across national boundaries, then it is likely to be complex. If, on the other hand, it involves a single transaction, it is unlikely to be complex.

Note that it is not necessary to show that a fraud is both serious and complex, only serious or complex.

The question whether or not a case is one of serious or complex fraud has to be decided according to English law; but we are permitted to take into account relevant factors in the overseas country.

2. What can the Serious Fraud Office do to help?

The Serious Fraud Office has coercive powers (called "Section 2 powers" after the section in the Act of Parliament creating them) which enable us to do the following:

(a) Require any person (including, for example, a company or bank) to produce to us any relevant documents, including confidential documents. If the person is a lawyer, he cannot be required to produce documents to which legal privilege attaches. Legal privilege is a specialised subject in itself: but documents are not legally privileged just because they are confidential, nor are they legally privileged if they are held with the intention of furthering a criminal purpose. A lawyer can always be required to give the name and address of his client.

(b) Require any person (including, for example, a company or bank) to answer any relevant questions, including questions about confidential matters. The position with a lawyer and legal privilege is as at (a) supra.

(c) Where we determine that to require a person to produce relevant documents would be likely to result in that person destroying them, hiding them or taking them out of the country, so as to frustrate your criminal investigation, we may apply to a court for a warrant to search that person's house or business premises and seize the documents. However, before granting a search warrant, a magistrate will expect us to satisfy him that we have considered other means of obtaining the material, such as service of a notice for production. This means that we need to understand what may have led you to believe that a search warrant is the only way in which you will be able to recover the documents. The position with a lawyer and legal privilege is as at (a) supra. A search warrant cannot authorise the seizure of documents covered by legal privilege.

Apart from the use of coercive powers, the Serious Fraud Office can help you obtain publicly available information (for example, about companies); and can interview persons voluntarily (ie without using coercive powers) if they agree to this.

3. Who may ask for help?

This depends primarily on who is allowed to make a request for help under the law of your country. The United Kingdom can receive a request for help from an overseas criminal court or tribunal, an overseas prosecutor, or any other overseas authority which appears to have the function of making requests for help in criminal cases.

4. How do I make a request for help?

All requests for the exercise of coercive powers must be made by a Letter of Request sent to the United Kingdom Central Authority (United Kingdom Central Authority) as follows:

The Officer in Charge
United Kingdom Central Authority
Home Office
Queen Anne's Gate
London SW1H 9AT

Telephone: international code + 44-171-273-4083
Fax: international code + 44-171-273-4400

5. At what stage in my investigation may I send a Letter of Request?

Generally speaking, the United Kingdom can receive a Letter of Request provided either that a criminal offence has been committed in your country or that there are reasonable grounds for suspecting that a criminal offence has been committed in your country, and that you are investigating it. It is not necessary that any person should yet have been charged with committing a criminal offence, or that you should have formally commenced proceedings.

6. What should the Letter of Request contain?

Apart from paragraph (i) infra, there are no particular formalities which the United Kingdom requires in a Letter of Request; the important thing is that it should be in plain, concise English. You should understand, however, that where you want us to use our coercive powers, your Letter of Request and any supplementary Letters of Request are the only documents upon which we can rely. It is not, in other words, enough for us to tell an English court that we have used our coercive powers because of something which you have told us verbally, but which is not written down in the Letter of Request. We cannot overemphasise the importance of this legal requirement.

The following additional points may be helpful:

(a) Set out details of your organisation and who you are, and aver that you are permitted under the law of your country to make requests to foreign authorities for assistance in criminal cases.

(b) Set out a short account of your investigation, what you believe has happened, the amount of money which is involved, and why you believe that the fraud is serious or complex.

(c) Which criminal offences in your country appear to have been committed? Please give us sufficient details so that we can be satisfied that they would constitute one or more offences of fraud if the crime had taken place in the United Kingdom. It is also important that you clearly explain the relevance of the enquiries you wish to pursue in the United Kingdom to the offences you believe to have been committed.

(d) When using our coercive powers, we have to declare names of persons under investigation. If you have already charged persons with criminal offences, we could name them. It is not necessary for us to name a natural person, however, and if, for example, you are investigating a fraud involving a company or a bank, it is permissible for us merely to name that company or bank. This may be important if you are trying to keep your investigation confidential, and the persons whom you propose to charge do not know about it. You should explain fully what the situation is.

(e) We are often asked whether it is necessary to send copies of documents with the Letter of Request. Documents may be helpful in explaining what it is that you are investigating. Clearly if you want a document to be shown to a witness, you do need to send a copy.

(f) It is extremely important that you tell us exactly what it is that you want us to do. Here are some examples:

§ If you want us to obtain documents from a bank, please tell us the name and address of the bank, the sorting code if you know it, all details which you have about the account (including its number), and the type of documents which you want (if in doubt, it is sufficient to ask for "all documents relating to the account"). In the UK Banks are not obliged to have an alphabetical register of the names of account holders. Accordingly, it is difficult to trace an account unless you are able to supply the account number.

§ If you want us to obtain a search warrant, we need to know why you believe that simply requiring the documents to be produced would not be enough (see 2(c) supra). We need to have all the information on which to make our determination. We must know, for example, the identity of the person or entity who occupies the premises and his/its link to your investigation. We also need as much information as possible about the occupier as, when seeking a warrant from a court, we will need to satisfy the court that a warrant is necessary and, for example, to explain what grounds there are for believing that the occupier will not co-operate without a search warrant.

§ If a search is to take place, it is particularly helpful if an English speaking prosecutor or police officer from your country can be present. We need to have details about this person (full name, rank, experience) either in the Letter of Request or in a supplementary Letter of Request. Such a person may not physically search for material but can accompany those searching in order to advise as to the relevance of material at the scene. This can assist greatly in ensuring that we recover the key documents on your behalf. Unfortunately, for legal reasons, a person who has diplomatic status (eg a member of staff of your Embassy in London) is not permitted to be present at a search.

§ If you want us to interview a person, what do you want us to ask him about? If the interview is likely to be complicated, we would particularly welcome the presence and assistance of an English speaking prosecutor from your country who, in appropriate circumstances, may be granted "Section 2 powers" and permitted to question the person directly. Again, we need to have details about this person (full name, qualifications, experience) either in the Letter of Request or in a supplementary Letter of Request. The interviews will still be conducted in English so it is essential that your representative is fluent.

(g) Please give us as much information as possible about persons whom you want us to find and interview, or from whom you want us to obtain documents. This includes, insofar as you have them, full names, addresses, dates of birth, telephone numbers, and if you think it would help, a photograph. It is equally important to give us as much information as possible about premises which you want us to search, including the persons who are likely to be there.

(h) How do you want us to authenticate documents for use in your court? Please tell us what your courts require. We will normally provide photocopies of documents, which can be certified by a member of the Serious Fraud Office. If an original document is particularly important (eg because of a signature), we can sometimes provide this. When we interview a person, we can tape record the interview, which you could then have transcribed. Alternatively, we could draw up a witness statement for the person to sign. Do you want a witness statement to be authenticated, either by a member of the Serious Fraud Office or someone else? If so, please tell us who you would like to authenticate it.

(i) For legal reasons which we can explain to you in more detail if necessary, you must include in your Letter of request the following two undertakings:

"If the United Kingdom Secretary of State for the Home Department decides to refer this Letter of Request to the Serious Fraud Office, I undertake that:-

(I) No document or other information obtained will be used other than in criminal prosecutions arising from the investigation set out in this Letter of Request, without the prior consent of the Secretary of State for the Home Department; and

(II) No statement made by any person to the Serious Fraud Office on foot of their coercive powers will be used against that person in a prosecution without the prior consent of the Secretary of State for the Home Department."

The undertaking at (I) is commonly required by most countries when granting legal assistance of this sort. The undertaking at (II) only becomes important if you ask us to interview a person whom you subsequently decide to prosecute (which would be unusual). In the United Kingdom, whilst we are permitted to question such a person in one of our own cases, we cannot normally use his answers against him. Because, of course, the English law which prevents us using the answers does not apply in your country, it is necessary for you to give the undertaking at (II) in every case so as to achieve the same effect. Otherwise the person being interviewed might have a good excuse for refusing to answer our questions.

7. Can the Serious Fraud Office obtain evidence anywhere in the United Kingdom?

No, only in England and Wales, and Northern Ireland. There are similar powers in Scotland which are exercised by the Crown Office. If you need evidence in Scotland, we can put you in touch with the Crown Office. There are also similar powers in Jersey, Guernsey and the Isle of Man, and again, we can put you in touch with the appropriate authorities if necessary.

8. By what method should the Letter of Request be sent?

This is primarily a matter of the law of your country. It may be that your law permits you to despatch a Letter of Request by post or by international courier (such as DHL) direct to the United Kingdom Central Authority. On the other hand your law may require you to pass a Letter of Request through diplomatic channels. Any of these methods are acceptable to the United Kingdom Central Authority, indeed in a case of urgency, the United Kingdom Central Authority is prepared to accept a Letter of Request by fax. May we simply emphasise that in all bureaucracies, including our own, documents can go astray unless guided to the right place? You need, by whatever means, to ensure that your Letter of Request does in fact arrive at the United Kingdom Central Authority. There are examples of Letters of Request taking up to four months to arrive through diplomatic channels! Obviously an international courier or a fax machine are the most reliable, and quickest, methods. Where it is necessary to send further information urgently to the United Kingdom Central Authority (eg before a search), use of a fax machine is essential.

9. Can requests be made in money laundering or fiscal fraud cases?

Money laundering as such is normally dealt with by the police rather than the Serious Fraud Office. However many frauds include laundering the proceeds of the fraud; and insofar as you are really investigating a serious or complex fraud, the Serious Fraud Office can help. If you are in any doubt, then please contact us and we will be happy to discuss the case with you.

As far as serious or complex fiscal fraud is concerned, the Serious Fraud Office can only help you in three situations:

(a) if you have already instituted criminal proceedings for the fiscal fraud; or

(b) if your country and the United Kingdom are signatories to a Treaty (eg the Special Protocol on Fiscal Matters to the European Convention on Mutual Assistance in Criminal Cases) under which they agree to assist each other in the prosecution of fiscal offences; or

(c) the conduct constituting the fiscal offence would constitute an offence of the same or a similar nature if it had occurred in the United Kingdom.

10. Is it necessary for the legal system of the overseas country to be able to reciprocate if there were a similar United Kingdom request?

No. The United Kingdom does not require reciprocity, although naturally we hope that our partners will assist us where possible, if necessary amending their law in order to do so.

11. May I contact the Serious Fraud Office for advice before sending my Letter of Request?

Yes. We encourage early contact, either by personal visit or, more usually, by telephone, fax or letter. We are always happy to advise on the text of a Letter of Request. Because responsibilities within the Serious Fraud Office change from time to time, we suggest that the best approach is to contact either by telephone, fax or letter:

The Lawyer in Charge of International Requests
The Serious Fraud Office
Elm House
10-16 Elm Street
London WC1X 0BJ

Telephone: international code + 44-171-239-7272
Fax: international code + 44-171-837-1689

Should you have difficulty reaching us by telephone, a fax message is often the solution, giving your name and telephone details and a convenient time when we might telephone back to you.

If you wish us to apply for search warrants, then we will require a substantial amount of background information and we would particularly welcome early contact with you, especially a visit, in order to plan the operation.

Seeking Assistance in Criminal Matters from the United Kingdom Guidelines for judicial and prosecuting authorities (Second Edition)