THE SFO AND SECTION TWO INTERVIEWS: WHY ROBUST DEFENCE IS NEEDED

Last year, the Serious Fraud Office (SFO) issued guidance for interviews conducted under Section 2 of the Criminal Justice Act 1987.

The crucial point in this guidance was that lawyers are not guaranteed to be permitted to attend interviews that their clients are compelled to go to. If a lawyer wishes to attend then, under the guidance, they must argue why they should be able to attend and even agree to restrictions on their role in the interview should they be allowed to accompany their client.

Interviews

The guidance is of huge importance. It could be argued that it skews the whole process in the SFO’s favour.

In recent weeks, the Law Society has criticised what it calls “inappropriate restrictions’’ and has even gone as far as to publish its own guidance for solicitors on what it calls an attempt by the SFO to limit the role of legal representatives in Section 2 interviews.

Under section 2 of the Criminal Justice Act 1987, the SFO can compel any person to attend interviews.

It states: “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 attend before the Director at a specified time and place and answer questions or otherwise furnish information with respect to any matter relevant to the investigation.’’

The change in the SFO guidance stems from a High Court case where three GlaxoSmithKline employees challenged the SFO’s initial refusal to allow them to have legal representation at Section 2 interviews. The High Court upheld the SFO decision; which prompted the SFO to send out its guidance.

These interviews are not carried out under caution and are not even subject to the Police and Criminal Evidence Act (PACE), which covers the vast majority of UK law enforcement interviews.

Failure to cooperate with a Section 2 interview can lead to up to two years’ imprisonment. And, unlike interviews under caution, Section 2 does not allow you to refuse to answer a question.

In such circumstances, it could be argued, a person has a great need for a legal representative to be present. Yet the SFO 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’’.

Conditions

Any person who wants a lawyer to attend a Section 2 interview with them must meet certain conditions. Within either seven days of the interview start date or three days of the person receiving the letter inviting them to attend the interview, they must give the SFO:

• The lawyer’s name and reasons why their presence is needed at the interview.
• A written undertaking from the lawyer that they do not represent anyone who is a suspect in the investigation.
• A written declaration from the lawyer that they will comply with confidentiality restrictions and not “undermine’’ their client’s legal obligation to provide “full and truthful’’ information.

The guidance removes the presumption that a lawyer can be present at an interview and gives the SFO the discretion to allow one to attend - forcing the interviewee and their solicitor to produce reasons why the legal representative should be allowed to attend.

Difficulties

Difficulties could also arise over the requirement – in paragraph 8 (b) (1) of the guidance – that lawyers must give an undertaking that they do not represent anyone individual or legal person who is a suspect in the investigation. As the SFO is unlikely to announce every person that it views as a possible suspect, it is extremely difficult for a lawyer to know if they represent one.

Such a potential problem is echoed by the Law Society. Its guidance urges solicitors to be very careful about giving undertakings where it may be difficult to foresee just how events may develop.

Similar potential difficulties surround what access to transcripts will be granted to solicitors prevented from attending the interview. If none is granted, what grounds does the SFO have for taking this stance? And what if a client discloses privileged information in an interview that their solicitor has not been allowed to attend?

While questions and possible problems surround the SFO’s guidance, there is one certainty: any person facing such an interview has to appoint a legal representative who can maximise the scope for mounting a robust defence to any allegations made by the SFO. It has to be a solicitor with experience of, and expertise in, challenging SFO assumptions – whether they are allowed into the interview or not.

Only by having a solicitor capable of devising strong, innovative and insightful challenges to the restrictions imposed last year can a client have any chance of achieving the best outcome in the face of the SFO’s “guidance’’.

Representation

The interviews that the SFO believes do not require a solicitor to be present are not simple, informal discussions where a person’s opinions or knowledge are sought. They involve the person being interviewed facing the possibility of prosecution – and a lack of appropriate legal representation could prove extremely damaging to their hopes of establishing their innocence.

The Law Society’s guidance argues that the SFO cannot “dictate how the practitioner should conduct himself or herself in the performance of their professional role as their client’s legal adviser and representative’’. It adds that a solicitor must “act in good faith and do the best for your client’’ and “must not feel inhibited from intervening to provide advice’’.

A legal representative should, according to the Law Society’s Guidance, make sure they meet their client privately if a Section 2 interview is scheduled; in order to advise them when not to answer questions.

If the Law Society guidance achieves anything, let’s hope that it gives lawyers greater confidence and willingness to challenge the SFO’s stance on preventing legal representatives accompanying their clients at such interviews. Solicitors need to decide their course of action on a case-by-case basis. There is no one-size-fits-all approach to what is a very unusual situation that the SFO is looking to benefit from.

In the first instance, a shrewd defence solicitor should, in such situations, be looking to see if reasonable grounds can be found for their client not to comply with an SFO request for a Section 2 interview. Only then should they consider acceding to the SFO’s demands that their client is interviewed without legal representation.

In these circumstances, choosing the right solicitor and the right approach is vital.