Aziz Rahman explains why the SFO’s insistence that

solicitors cannot be present for interviews under Section 2 of the Criminal

Justice Act can be and should be challenged.

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.