The Serious Fraud Office (SFO) has published new guidance on the presence of lawyers at section 2 interviews in criminal investigations conducted under section 2 of the Criminal Justice Act 1987, typically with potential witnesses.

The SFO guidance follows the decision of R (Lord and Others) v SFO[1], in which it was ruled that the SFO had been entitled to exclude lawyers, acting for a company under investigation, from also representing employees of that company who were not suspects at their section 2 witness interviews. There is very clearly a fine line between balancing the interests of the employee with those of a company.

The SFO guidance, however, goes a great deal further than this decision. Under the new guidance, a lawyer is only permitted to attend a section 2 interview if they meet certain ‘ground rules’; that is if the SFO case controller believes that they:

  1. will assist the purpose of the interview and/or investigation; or
  2. provide essential assistance to the interview by way of legal advice or pastoral support.

The right to have a lawyer present in a criminal interview has been a long standing right and is fundamental to a just and fair judicial system. The SFO guidance goes some way to fetter this right as the discretion is on the part of the SFO to determine what the purpose of the interview and/or investigation is.

What does “essential assistance” mean? This term is undefined. The only clarification of “essential assistance” in the SFO guidance is that it does not equate to anything that “undermines the free flow of information” unless for the purposes of “protecting or maintaining the interviewee’s legal professional privilege”, which suggests it will be interpreted restrictively.

Should a lawyer seek to attend a section 2 interview with an interviewee, they must serve on the SFO, in advance of the interview, their reasons why they should be present; written acknowledgment of the SFO guidance ground rules; and a series of written undertakings by the lawyer’s firm, one of which is that the lawyer does not discuss the contents of the interview with any third party, including the company, without the SFO’s prior written consent.

These requirements are overtly prescriptive in light of the fact lawyers are already subject to Rules of Conduct by the Solicitors Regulation Authority and, ultimately, they may mean that lawyers are excluded from attending section 2 interviews, which would give rise to numerous challenges. Without lawyers being able to interject or intervene at an interview regarding the interview process, or to advise the witness of their legal rights, witnesses are at risk of giving inconsistent and unclear information which does not assist the investigation and, potentially, being lead into criminal liability. A witness’ lack of valid legal representation (either because their lawyer is excluded from attending or has an almost entirely passive role in exchange for the privilege of attending) could also mean that witnesses are less inclined to cooperate in an interview and/or investigation.

The new guidance seems to create an antagonistic and unhelpful approach with regards to witnesses and their lawyers and is seemingly in conflict with the SFO’s statement at the start of the new guidance that “interviews under section 2 must be conducted with great care to ensure that they are carried out fairly.”

The SFO has shown its teeth recently and made some good improvements, but it could be said that this new guidance is overstepping the mark. It will be interesting to see the extent to which the guidance is relied on by the SFO in practice or whether the guidance is challenged.