Partner Abdulali Jiwaji and Associate Johnny Shearman’s article has been published in FTSE Global Markets, 15th August 2016, and can be found here.

It is often assumed that an individual being interviewed by an investigative body, whether under caution or voluntarily, has a fundamental right to legal representation and advice. However, the publication of new guidelines by the Serious Fraud Office (“SFO“) on the presence of lawyers and the conduct of interviews conducted pursuant to section 2 of the Criminal Justice Act 1987 (the “New Guidelines“) calls into question this assumption. This article will consider the New Guidelines which were issued following the case of Lord v the SFO[1].

Lord v the SFO – the facts

Whilst s.2 interviews have been a powerful tool deployed by the SFO since the late 1980s, their means as a way of retrieving information in relation to an investigation has remained largely untested. That was until 2014 when the SFO’s policy on s.2 interviews was challenged in the case of Lord v the SFO.

In 2014, GlaxoSmithKline was under investigation by the SFO in connection with alleged acts of bribery and corruption. As part of the investigation, the SFO issued notices to three senior employees of GSK requiring them to attend s.2 interviews. Upon receiving the notices, the three employees instructed the law firm Arnold & Porter LLP to attend the interviews to provide legal advice, as necessary. However, the SFO declined to permit A&P’s presence at the interviews. While the SFO agreed that the presence of lawyers at s.2 interviews was permitted in principle, the SFO objected to A&P as their presence might stand to prejudice the investigation given that they were also the lawyers for GSK. It was that decision by the SFO which the employees sought to challenge by way of judicial review.

The court ultimately held that the SFO had acted reasonably in refusing to permit the attendance of A&P, given that the firm acted on behalf of GSK. In his decision, Lord Justice Davis stated:

It would clearly be entirely self-defeating if an interview had to go ahead and actual prejudice had to be established before the SFO could react. In my view, the SFO was entitled to look at whether there was potentially a real risk of prejudice to the investigation before deciding as it did: and that is precisely the process it adopted“.

Davis LJ also confirmed that the European Convention of Human Rights had not been contravened given that the employees had not been arrested or detained. Further, he affirmed that no common law right was conferred for a lawyer to be present during questioning for those subject to a s.2 interview. Following the court’s decision, the SFO reviewed the guidance contained in its Operational Handbook.

The New Guidelines

The New Guidelines replace those contained in the SFO’s Operational Handbook. Unlike the former SFO guidance, the New Guidelines do not automatically permit the attendance of a lawyer. Instead a lawyer will only be permitted to attend a s.2 interview if the case controller believes they will assist the purpose of the interview and/or investigation, or that they will provide essential assistance to the interviewee. The original concept of refusing to permit the attendance of a lawyer on the basis of “prejudice” or “delay” remains, and in addition several other grounds are now included. These further grounds are highlighted below.

Pursuant to the New Guidelines, prior to attending a s.2 interview, a lawyer must provide written undertakings on behalf of their firm stating that the firm does not represent any corporate or individual who is a suspect in the investigation. Where a lawyer is “unable to demonstrate (by giving appropriate undertakings) that they are not retained by, or otherwise due a duty of disclosure to any other person (natural or legal) whom may come under suspicion during the course of the investigation, including the interviewee’s employer, they are likely to be allowed to attend the interview“. This amendment is drafted as if to assume that a lawyer is in a position to know all existing or potential suspects in any given investigation, which seems highly unlikely. For a lawyer to undertake that they are not retained by any persons who may come under suspicion during the course of the investigation is to assume that the lawyer has full knowledge of the investigation and the foresight to predict who may or may not come under suspicion.

Under the New Guidelines it is now stipulated that only one lawyer will be allowed in a s.2 interview, unless expressly agreed by the SFO. The New Guideline also requires further undertakings to be given by the lawyers confirming that they will respect certain parameters so as to not undermine the free flow of full and truthful information which the interviewee, by law, is required to give. There is clearly scope for tension here between this restriction and the duty of the lawyer to act in the best interest of its client, and to step in if concerned that an interviewee is being treated unfairly.

It is difficult to assess the impact of the SFO’s New Guidelines at this early stage and there is certainly scope for further issues to go before the courts. However, what is clear is that the SFO’s New Guidelines set it apart from other investigative bodies such as the Financial Conduct Authority. The New Guidelines have effectively removed the presumption that an interviewee has the unfettered right to legal representation. By removing the presumption, the dynamics in advance of a s.2 interview have shifted significantly in favour of the SFO. This means we may see the courts dealing with this subject matter again soon, and the courts will no doubt expect the SFO to approach any matters involving exercise of a discretion rationally and reasonably.