Common Questions and Answers About Our Capabilities
To find out more about how we can assist during an SFC investigation, we set out below a list of common enquiries we receive from clients and our approach to addressing these enquiries as follows.
SFC investigation notices are issued by the SFC under section 183 or section 179 of the SFO. These sections give SFC investigators certain powers. A notice issued under s. 183 may, for example, require you to attend an SFC interview and answer questions, to produce documents and answer written questions or to provide all reasonable assistance to SFC investigators.
We have extensive experience advising clients on the scope of the SFC’s investigation powers. We can advise you on whether the SFC’s requests are within their jurisdiction, how to manage the timeline for an SFC investigation and how to manage the flow of information to the SFC. We can help you identify whether there is any risk that your answers to the SFC’s questions may incriminate you and how to exercise you privilege against self-incrimination.
Each investigation notice is subject to statutory secrecy obligations under the section 378 of the SFO. This section prohibits you from disclosing to anyone anything about the investigation. However, you may consult a lawyer about the investigation without breaching these secrecy obligations.
In cases where your firm is under investigation, we can advise on how to handle the disclosure of information between members of the firm to comply with statutory secrecy requirements and how to protect information and communications with affiliates and staff from being disclosed, such as by maintaining legal professional privilege and common interest privilege.
In cases where you are personally under investigation, such as when you have received a section 183 notice under a section 182 investigation, we can advise on the persons to whom you can disclose information about the investigation and on what information you can disclose.
We have extensive experience dealing with indemnity coverage issues in the context of an SFC investigation. We can assist with understanding whether you may be entitled to indemnity insurance, whether under a D&O Insurance policy or a professional indemnity insurance (also known as professional liability insurance or professional services insurance) policy. We can assist with taking steps necessary to claim entitlement under applicable insurance coverage. We can advise you on complying with statutory secrecy obligations in making a claim for insurance coverage and negotiate terms of coverage with the insurer.
SFC investigations tend to follow established patterns.
We can help you understand what stage the SFC investigation team is likely to be at and what steps they are likely to take going forwards. As a result, we can help you to prepare in advance for what is likely to happen with the SFC investigation in the future.
At the same time, we can help you understand whether what is happening in the SFC investigation is or is not following the traditional pattern.
Each SFC investigation focuses on particular possible breaches of the SFO or other regulatory requirements.
We work with you to understand the role you may have played in the matters which are the subject of the SFC investigation and to identify whether you may have breached any regulatory requirement. Where there is a possibility that the SFC may allege a breach, we advise you on the scope of these regulatory requirements.
We help you identify the facts which SFC investigators may focus on in assessing whether there has been a breach and to identify the facts which may mitigate against a finding of a breach.
We help you understand the context of the events which occurred from the SFC’s perspective. We help you shape a narrative which is not only consistent with the actual events which took place but also is as compliant as possible with regulatory requirements. Consistent with this narrative, we help you make decisions about what information to volunteer to the SFC.
SFC investigators may issue a notice under section 183 of the SFO requiring you to attend an interview. SFC interviews are formal interviews which are tape-recorded. An SFC investigator will ask questions and will expect you to answer those questions.
We can help you to prepare for the interview by helping you to make your case.
Where the SFC interviewer pursues a line of questioning which is outside the case we have helped you to prepare, we can stop the interview to confer privately with you. During this private conference, we can guide you through what activity or regulatory requirement the SFC may be targeting and help you to identify facts which may mitigate any finding of a breach of that requirement.
We can help you ensure that you have given sufficient emphasis to facts which you have previously disclosed to us and which we know are important for your case. We can thus help ensure that the permanent record of the SFC interview not only provides a truthful account but also contains the evidence needed to pre-empt a prosecution or to facilitate a defence against prosecution in the future.
We can help you decide whether or not it is in your interest to try to reach a settlement with the SFC and if so, when you should consider proposing a settlement. We understand the SFC’s practices for co-operation and have worked with a number of clients to advise on the possibility of admitting liability under a settlement.