The Serious Fraud Office (SFO) guidance for interviews conducted under Section 2 of the Criminal Justice Act 1987, which was issued last year, includes one crucial point: 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 allowed to and even agree to restrictions on their role in the interview, should they be given permission to accompany their client.
Recently, the Law Society has criticised what it calls these “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.
Under section 2 of the Criminal Justice Act 1987, the SFO can compel any person to attend interviews.
* Are not carried out under caution.
* Are not even subject to the Police and Criminal Evidence Act (PACE), which covers the vast majority of UK law enforcement interviews.
* Carry a penalty of up to two years’ imprisonment for a person that fails to cooperate.
* Do not allow a person to refuse to answer a question.
* Only allow a lawyer to accompany the person being interviewed 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’’.
It could be argued that such a situation is one where a person has most need of a solicitor. Yet 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 – even though it could be extremely difficult to know who is or may become a suspect.
* 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.
In its guidance, the Law Society urges solicitors to be very careful about giving undertakings where it may be difficult to foresee just how events may develop. Another contentious issue is what access to transcripts will be granted to solicitors prevented from attending the interview. And what if a client discloses privileged information in an interview that their solicitor has not been allowed to attend?
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.
* Has experience of, and ability in, challenging SFO assumptions – whether they are allowed into the interview or not.
* Is capable of establishing whether there are reasonable grounds for their client not to comply with an SFO request for a Section 2 interview.
* Can devise the best response 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.
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’’.
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.
This prompted the SFO to send out its guidance. But lawyers must have the confidence and willingness to challenge the SFO’s stance on preventing legal representatives accompanying their clients for such interviews. For their part, the client has to make sure they choose the right solicitor.