Aziz Rahman explains compulsory SFO interviews under S2 of the Criminal Justice Act 1987.
The SFO is a creature of statute. That same statute, the Criminal Justice Act 1987, also provided the SFO Director with the power to compel people to attend interview and answer questions. Section 2 of the Act provides that the Director:
“may by notice in writing require the person whose affairs are to be investigated (“the person under investigation”) or any other 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.’’
According to operational guidance published in June 2016 by the SFO, the purpose of a s2 interview is “to establish facts by obtaining from the interviewee full and truthful answers to the questions asked.”
For those on the wrong end of a s2 notice, the good news is that the SFO may be treating the interviewee as a potential witness rather than a suspect – indeed, that is stated in the guidance document sent out with the s2 notice. The questions must be answered. It is not like a police interview, which is governed by the Police and Criminal Evidence Act 1984 (PACE).
In those interviews the interviewee is always a suspect and they are always cautioned. Frequently, suspects in such interviews exercise their right not to incriminate themselves as guaranteed under Article 6 of the European Convention on Human Rights. There is no such right in a s2 interview: saying ‘no comment’ will just lead to a separate criminal charge of failing to answer the questions. The corollary of that is that none of the answers given in a s2 interview can be used against the person being interviewed in criminal proceedings; as that would violate the right of that person not to incriminate himself.
In 2015, the High Court upheld the SFO’s decision to refuse to allow a lawyer to be present at one of its s2 interviews. That was the case of R (Lord and ors) v SFO  EWHC 865 – in a renewed application for permission for Judicial Review.
That case concerned the SFO’s investigation into GlaxoSmithKline PLC (GSK) and possible acts of bribery and corruption. Section 2 notices were issued to three senior employees of GSK. In that case both the firm and the three employees were represented by the same firm of solicitors. The three employees wanted to be represented at their s2 interviews. The SFO refused those requests. The SFO stated that they believed that that might prejudice their investigation. The High Court upheld the SFO’s approach and since then the SFO has produced policy guidance on the issue.
The new guidance provides that a lawyer may only accompany an interviewee to their s2 interview 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”. Other hurdles must also be cleared, and the upshot is that the SFO hold the whip-hand as the lawyer must prove his or her presence is appropriate.
If an interviewee wants their lawyer to attend a s2 interview, the SFO must be provided with the following information, either within seven days prior to the interview or three days after the interviewee receives a letter inviting them to attend a s2 interview (whichever is the later):
The name of the lawyer and “reasons why their presence in the interview will assist the purpose of the interview and/or investigation, or that they will provide essential assistance to the interviewee by way of legal advice or pastoral support”.
A written undertaking from the lawyer in question in the name of their law firm that the firm “does not represent any individual or legal person who is a suspect in the investigation” and that they will abide by a series of confidentiality restrictions, including not sharing or making copies of any documents provided by the SFO to the interviewee in advance of their interview.
The SFO, emboldened by the success in Lord, has taken a robust approach to the issue of lawyers being present at s2 interviews. The practical reality, of course, is that any employee who is determined to pass on information gleaned from an interview to another suspect could easily do so without involving the lawyer.
However, that robust approach from the SFO must be recognised at an early stage. There are potential problems for both lawyers and their clients when involved in any SFO investigation involving a corporate and its employees. Representation at this stage can be crucial. For example, experienced solicitors at a s2 interview might be able to gauge whether a non-conviction disposal might be on the cards; e.g. a Deferred Prosecution Agreement. But that is for the company, not the employee.
The trick for the lawyers is to make those professional and ethical judgments in a timely manner and in a way that maximises the potential benefit to the client. This is not easy and requires the early input of lawyers experienced in complex SFO investigations.