Section 2 notices: here and now?
Section 2(2) and (3) of the Criminal Justice Act 1987 (‘CJA 1987’) empower the Director of the Serious Fraud Office (‘the SFO’) to give notice in writing requiring a person under investigation or any other person whom the Director has reason to believe has relevant information to (a) answer questions or furnish information (s. 2(2)); or (b) produce documents (s. 2(3)). In what is often referred as a ‘here and now’ notice, the recipient may be required to do what the SFO’s notice requires ‘forthwith’ (see R (Rawlinson and Hunter) v Central Criminal Court  EWHC 2254 (Admin),  1 WLR 1634, at ). What, in the context of a ‘here and now’ notice, does ‘forthwith’ mean?
Criminal Justice Act 1987
Section 2(2) sets out the power to compel a person to answer questions or furnish information (with emphases added):
(2) The Director may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.
Section 2(3) sets out the equivalent power to compel a person to produce (a specified class of) documents:
(3) The Director may by notice in writing require the person under investigation or any other person to produce at such place as may be specified in the notice and either forthwith or at such time as may be so specified, any specified documents which appear to the Director to relate to any matter relevant to the investigation or any documents of a specified class which appear to him so to relate
Where a court is satisfied on the basis of information on oath that there are reasonable grounds for believing that a person has failed to comply with an obligation under s. 2(2) or (3), it has the power to issue a search warrant under s. 2(4)(a)(i). A warrant may also be issued if there are reasonable grounds to believe that it is not practicable to serve a notice under s. 2(3), or if doing so might seriously prejudice the investigation (s. 2(4)(a)(ii)-(iii)).
Furthermore, if a person fails to comply with such an obligation without reasonable excuse, he or she will be guilty of an offence under s. 2(13): the offence is punishable with six months’ imprisonment and/or an unlimited fine.
The Oxford English Dictionary defines ‘forthwith’ as meaning ‘immediately’ or ‘without delay’. However, the Privy Council observed in the nineteenth century in R v Price (1854) PC 203, 14 ER 78 that ‘when used in an Act of Parliament’, the word ‘has been construed to mean “in a reasonable time”’, or, alternatively, ‘as soon as the party who is to perform the act “can reasonably perform it”.’ In In re Southam (1881) 19 Ch D 169, Lush LJ was clear that the word ‘has not a fixed and absolute meaning’, and Sir George Jessel MR agreed:
I think that the word “forthwith” must be construed according to the circumstances in which it is used. Where, as in Hyde v Watts, there is a covenant to insure a man’s life, there must of necessity be some delay, for the act could not be done in a moment. But where an act which is required to be done “forthwith” can be done without delay, it ought to be so done.
In R v Secretary of State for Social Services, Ex p Child Poverty Action Group  2 QB 540, the Court of Appeal (Balcombe, Woolf and Russell LJJ) considered the duty imposed on the Secretary of State for Social Services under ss. 98-99 of the Social Security Act 1975, as amended, to ensure that any claim for income support and certain other benefits was ‘submitted forthwith to an adjudication officer for determination’. The Court of Appeal found that that duty arose only when the Department of Health and Social Security had obtained the basic information to enable a claim to be determined: the Secretary of State was under no duty to have an adjudication officer available immediately to deal with the claim and a decision on the claim could be lawfully reached after the stipulated time period if it was not practicable for it to be reached earlier. Woolf LJ implicitly rejected the submission that ‘forthwith’ should simply mean ‘immediately’ (at 553D-E):
So far we have not separately considered the sense in which the word ‘forthwith’ is used in section 98(1). It can have many meanings according to the context. However, as already pointed out, none of those meanings in the present context could require the department to submit to the adjudication officer a claim form which did not provide the material needed for a determination. In the context of section 98 the presence of the word ‘forthwith’ indicates that the department is required, once that material is available, to submit the claim to the adjudicator as soon as reasonably possible. Because of the requirement to deliver the claim forthwith the department, in deciding what steps it should take in order to make the claim suitable for submission and in carrying out those steps, is under an obligation to bear in mind the need for expedition.
In s. 2(2)-(3) CJA 1987, ‘forthwith’ does not necessarily mean ‘immediately’: it is more likely to mean ‘as soon as reasonably possible’ in all the circumstances, and, in particular, without deliberate and unnecessary delay. A court determining this question would bear in mind that:
(i) the powers set out in s. 2(2)-(3) are designed for use in complex and document-heavy SFO prosecutions, where some material may inevitably take some time to locate;
(ii) if an application for a search warrant under s. 2(4) could routinely be made as soon as the SFO served ‘here and now’ notice, this would be (a) disproportionate where there has been insufficient time to comply, given the intrusive nature of a search warrant; and (b) probably ineffectual if the material is indeed difficult to locate;
(iii) it is unattractive to suggest that prima facie criminal liability arises under s. 2(13) if an immediate response is clearly impracticable, even if a person would probably have a ‘reasonable excuse’ defence in any event (the ‘reasonable excuse’ defence still has an important function if, for instance, it is not possible to provide the document at all, a circumstance anticipated by s. 2(3)(d)).
Although the meaning of ‘forthwith’ has not been judicially determined in the context of a ‘here and now’ notice, it is likely to mean ‘as soon as reasonably possible’. This will be a question of fact: although it may sometimes mean ‘immediately’, this will not necessarily be the case. If an immediate response is impracticable, the better view is that prima facie liability does not attach for the offence under s. 2(13); in the alternative, the person in question would be likely to have a defence of ‘reasonable excuse’. If a response has not been immediately forthcoming but it is not yet ‘reasonably possible’ to provide one, it would, for the same reason, be inappropriate for an application for a search warrant to be granted by a court under s. 2(4); and, until such an application is granted, the SFO have no right of entry simply because a ‘here and now’ notice has been served.