Brian Swan, Partner at Stokoe Partnership Solicitors, examines the Serious Fraud Office’s (SFO) new guidance for Section 2 interviews in Criminal Law & Justice Weekly, Solicitors Journal and The Barrister.

Brian’s articles have been featured in the following publications:

Criminal Law & Justice Weekly, 23rd July 2016
Solicitors Journal, 26th July 2016
The Barrister, 31st August 2016

Interviews and Serious Fraud Office Guidance

Brian Swan suggests that s.2 of the CJA interviews undermine legal representation

In June, the SFO issued new guidance for interviews conducted under s.2 of the Criminal Justice Act. The guidance itself notes that these interviews are “a serious step in any case”, however it has made moves to exclude interviewees’ lawyers unless the SFO deems that they will provide “essential assistance by way of legal advice or pastoral support”. The guidance in no way quantifies “essential”, and leaves the door open to rampant abuse of a central tenant of the criminal justice system – the right to legal representation.

Section 2 interviews are typically held with potential witnesses, who are deprived of the ability to refuse to answer a question, on either the basis of avoiding self-incrimination or a duty of confidence to a third party. The only acceptable reasons for withholding information are that providing the information would break legal professional privilege (LPP) or in exceptional circumstances where a reasonable excuse exists. Given the criminal liability that can be placed on an individual in these interviews, it seems to fly in the face of justice to deny an interviewee legal representation.

The key change from previous guidance on the matter is the change in procedure from lawyers being generally able to attend to them having to prove to the SFO that it is “likely that they will assist the purpose of the interview and/or investigation” or that they will provide “essential assistance”. Lawyers now have to provide a written request to the SFO’s Head of Division, who must agree with the reasoning for why attendance would be desirable for the investigation.

Mechanisms also now exist for the SFO’s case controller to expel legal representation from the interview, with no oversight from the Head of Division nor method of appeal. The only interaction with the interview noted as permitted for legal representatives in the guidance is advising on matters of LPP. Otherwise, they must avoid doing “anything to undermine the free flow of information” in the interview. As with the rest of the guidance, no clarity is issued on what constitutes a reason to suspend the lawyer’s access – a “perceived infraction” or “obstruction of the interview process generally” is enough to see legal representatives excluded and witnesses adrift without legal advice.

Interviewees, then, are presented with a situation in which even if they are permitted to have a legal representative alongside them, this can be taken away at a moment’s notice. They will then have to answer all questions put to them without the benefit of legal advice. Essentially, witnesses will have to choose between a hamstrung solicitor that has been allowed to attend, or a solicitor that could be excluded from the interview once the SFO perceives them to have overstepped their mark.

The confrontational nature of this new guidance highlights a mistrust of defence lawyers. The SFO has included a proviso that lawyers are “unlikely to be allowed to attend the interview” where they are unable to show they are not retained by or owe a duty of disclosure to any other person or corporate that may come under suspicion during the investigation. Firms are no longer to be trusted to manage any potential conflicts. The SFO is assuming that, where one firm represents suspects and witnesses no processes exist to prevent a conflict of interest occurring. In a more sinister interpretation, it suggests that the SFO feels that firms may not have the ethical integrity to avoid these conflicts.

Assuming that solicitors are unable to abide by the restrictions imposed by their ethics and criminal law sees the SFO eschewing a cooperative approach to investigations. Denying individuals legal representation in such a manner is unlikely to garner sympathy for the SFO’s work. Indeed, if an individual feels the SFO has unfairly denied them access to a central tenant of our criminal justice system, it is not unreasonable to expect them to refuse to sign the proffered witness statement or to testify at trial. There is potential for this new guidance, then, to backfire on the SFO, directly hampering investigations by reducing cooperation with witnesses and by reducing dialogue with firms involved.