31 August 2016
3 min read
The Serious Fraud Office’s guidance regarding interviews conducted under Section 2 of the Criminal Justice Act 1987 means that lawyers’ attendance at SFO-compelled interviews will not be guaranteed. Lawyers will have to argue why they should be able to attend and – if allowed to attend – agree to restrictions on their role in the interview.
Under section 2 of the Criminal Justice Act 1987, the SFO can compel people to attend interviews; which are not carried out under caution and not subject to the Police and Criminal Evidence Act (PACE).
The Section 2 interview is a very powerful tool for the SFO, as it carries certain conditions. Not cooperating with a Section 2 interview can carry a penalty of up to two years’ imprisonment. Interviewees must answer questions fully and truthfully. Section 2 does not allow you to refuse to answer a question, as with an interview under caution.
In 2015, the High Court upheld an SFO decision to prevent lawyers acting for a company under investigation also acting for some of the company’s employees. The SFO had argued that this would have prejudiced its investigation. After this High Court ruling, the SFO began work on new guidance regarding the conditions under which lawyers can be present at section 2 interviews.
This guidance, published in 2016, states that a lawyer may only accompany a person to a Section 2 interview if “the SFO believes it likely they will assist the purpose of the interview and/or the investigation, or that they will provide essential assistance to the interviewee by way of legal advice or pastoral support’’. Anyone wanting their lawyer to attend the Section 2 interview with them must now meet certain conditions. Within either seven days of the interview start date or three days after the person received the letter inviting them to attend the interview, they must give the SFO:
The SFO’s latest guidance – which has been devised as separate documents to interviewees and lawyers - removes the presumption that a lawyer can be present, gives the SFO the discretion to allow one to attend and forces the interviewee and their solicitor to justify why the legal representative should be present.
The implications for interviewees are clear: legal representation is not an automatic right. But there may also be a major implication for the SFO itself; due largely to paragraph 8 (b) (1) of the guidance document to lawyers. This paragraph states that the lawyer must give an undertaking that they do not represent “any individual or legal person who is a suspect in the investigation’’.
In such cases, it is unlikely that the SFO will make known the identities of everyone it regards as a potential suspect. So how can a lawyer know that they do not represent a suspect? And what will happen if, on that basis, a solicitor refuses to give such an undertaking?
Much may depend on the SFO’s willingness to be pragmatic from case to case or flexible in its use of paragraph 8 (b) (1). If it cannot take such an approach, it may face difficulties.
For example, part of the SFO’s guidance states that a lawyer must confirm that they are not retained by - and do not owe a duty of disclosure to - any other person who may come under suspicion during the course of the investigation. And yet the SFO wants lawyers attending section 2 interviews to give an undertaking they do not represent anyone who is a subject in the investigation. The difference between “may’’ and “is’’ could prove troublesome for the SFO.
What access to Section 2 interview transcripts will lawyers gain if they are barred from attending? And if the answer is none, what grounds are there for this? What happens if an interviewee discloses privileged information when their lawyer has not been allowed to attend? These are all questions yet to be properly addressed.
Some of these questions may be answered as problems arise. But some of them may also be answered by the challenges to them that some more resourceful solicitors devise.
For that reason alone, it is in any interviewee’s interest to make sure that they appoint as their legal representative someone with vast experience of challenging SFO assumptions. Having dealt with the SFO on many major cases, I believe it has to be someone who is capable of mounting strong, “out of the box’’ arguments against the restrictions that have been imposed. Someone who can foresee the implications of this guidance and the possible legal twists and turns it may prompt in the future. Someone who refuses to be cowed by the restrictions that have been misleadingly called “guidance’’.
* This guidance was amended on 28 February 2019 to allow an additional legal representative to attend the interview for the sole purpose of taking notes. This does not permit the recording or transcribing of the interview.