On 4 May, the Law Society published a practice note in response to the Serious Fraud Office's revised operational guidance on the presence of an interviewee’s legal adviser at a section 2 interview (section 2 Criminal Justice Act 1987). In this article we look at the tension between SFO policy and the professional conduct to which solicitors are bound.

The Director of the SFO has the power, under section 2 CJA 1987, to serve a notice requiring a person "whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith". When the power is exercised what takes place is commonly referred to as a section 2 interview.

A section 2 interviewee does not have the protections of PACE but the potential consequences are such that many people who have been through the process have taken a legal adviser with them.

On 6 June 2016, the SFO published revised operational guidance on the presence of an interviewee's legal adviser at a section 2 interview. There are guidance notes for both interviewees and lawyers. The guidance indicates that it is up to the SFO whether to allow a legal adviser to attend, and the legal adviser will only be permitted to attend on the SFO's terms. Those terms include a requirement to provide various undertakings.

The SFO guidance followed a decision by the Divisional Court in R (on the application of Lord) v Director of the Serious Fraud Office. Lord and others had attempted to challenge an SFO decision to reject their choice of solicitor, under the previous version of the SFO operational guidance. The challenge failed, with the decision confirming that there is no right to have a lawyer present, and so the SFO, in allowing interviewees to bring a legal adviser, could set the terms under which to grant permission. The guidance goes much further than the previous version: it requires representatives to justify their attendance and submit in advance to SFO terms which endure with uncertain effect.

The Law Society has now published its own guidance in the form of a practice note for solicitors representing clients at section 2 interviews. The Law Society note is clear that solicitors are bound by professional conduct guidance, not by the policies of the SFO. The note spells out the ways in which the standard SFO requirements may be at odds with a solicitor's duties including the obligation to act, lawfully, in the best interests of the client.

Among the standard undertakings required in the SFO guidance for lawyers is that the representative's firm "does not represent any individual or legal person who is a suspect in the investigation". The SFO operational guidance is worded even more widely: it says this:

Where a particular lawyer is unable to demonstrate (by giving appropriate undertakings) that they are not retained by, or otherwise owe a duty of disclosure to any other person (natural or legal) who may come under suspicion during the course of the investigation, including the interviewee’s employer, they are unlikely to be allowed to attend the interview.

It remains to be seen whether the SFO is willing to provide a list of suspects, which is what the Law Society suggests, so that the representative knows whether this undertaking may be given.

Presumably, in requiring this undertaking, the SFO can be taken to make a representation that the interviewee is not a suspect, or at least not at that stage, because if he or she was the adviser he or she could not be asked to give the undertaking. The SFO does conduct section 2 interviews with individuals whose status as a suspect or potential witness has yet to be determined, and the SFO guidance notes that, in the event an interviewee becomes a suspect, the section 2 interview must end. Conversely, the SFO guidance is silent on what happens to the undertakings required at the section 2 stage if the client then becomes a suspect. The Law Society note points out some of the difficulties this may cause. 

The SFO consulted the professions before issuing this guidance and undoubtedly received observations on the various difficulties identified in the practice note. It is therefore not only unfortunate but deeply problematic if SFO policy could lead to practitioners being pressured to depart from professional guidance.

The Law Society practice note is a detailed list of points which solicitors should work through before agreeing terms with the SFO. It reflects the need for solicitors to make their own professional judgements about whether what they sign up to would prevent them from acting in accordance with their duties. Solicitors should never give undertakings lightly, must resist standard terms which would bring them into conflict with their professional duties and should endeavour to agree terms appropriate to the case.