Lawyer says SFO is abusing its power

Border arrest alerts issued before targets charged

An Auckland lawyer is accusing the Serious Fraud Office of abusing its power by initiating border arrest alerts on targets before they are charged.

The SFO says such alerts are issued only if there is sufficient evidence to support a charge punishable by jail.

Maria Cole, of Blackstone Chambers, said she was aware of two cases where the SFO had asked police to issue border arrest alerts despite no charges being laid. That meant the targets were unable to leave the country without being arrested.

“What you’ve got is an abuse of power going on,” Cole told the Herald. “Arresting someone without a warrant is a very serious issue. The police only do it . . . in very defined circumstances.

“Effectively what’s happening is that person is not being arrested for the offence — they’re being arrested for the fact that they’re trying to leave the country and yet the Serious Fraud Office hasn’t made up its mind yet whether to charge this person or not.”

If SFO investigators were satisfied a person should be charged, they should charge them, not investigate “at their leisure” by initiating an arrest alert. This was particularly true if they knew where the person lived and worked.

“It’s one of those situations where you can’t have your cake and eat it too. If they have decided that . . . the person has committed an offence then at that point it’s their decision whether to charge him or not.”

Her client had actually wanted to be arrested so he could be in the court system and apply for a bail variation to let him travel. He had even volunteered to go to the SFO offices to be charged, but was refused.

He was in a “legal limbo” where he could neither be arrested and deal with the charges, nor book his flights because he would be held at the airport and miss his plane.

In another case, Cole said a client was in a similar situation for 14 months before charges were laid.

She was concerned there was no public database on how regularly arrest alerts were issued without charges being laid.

The SFO said it had a memorandum of understanding with police that explicitly provided that the SFO could ask police to place border arrest alerts on people being investigated.

“Notwithstanding such a request . . . a police officer may only arrest someone if he or she has good cause to suspect that person had committed an offence punishable by imprisonment.”

Arresting someone without a warrant is a very serious issue. Maria Cole, lawyer

The SFO said there were several factors that could support the decision to hold off arresting someone, even if there was enough evidence.

For example, while there might be evidence to support some charges against an individual, the full scope of offending would not be likely to be known until the investigation was complete.

“While the person may not yet have been charged, the presence of an arrest alert means the SFO considers (and the police agree) that there is sufficient evidence to support a charge punishable by imprisonment against that person. The placing of an alert is therefore not arbitrary or unfair,” an SFO statement said.

The SFO said it generally sought border arrest alerts only if a person was a flight risk.