As promised, following the SFO's success in the High Court last year defending its decision to prohibit specific lawyers accompanying witnesses to an interview because the lawyers also represented the subject of the investigation (the witnesses’ employer) (R (Lord & others) v SFO  EWHC 865), the SFO has published new guidance on its process for handling requests for witnesses interviewed under section 2 of the Criminal Justice Act (“CJA”) 1987 to be accompanied by a lawyer. The guidance was published on 6 June 2016 and is available on the SFO’s website (links provided below).
Section 2 Criminal Justice Act 1987 - requirements
Section 2 gives the Director of the SFO (or his delegate) the power to “require a person whose affairs are to be investigated … 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…”
Failure to comply with a requirement to attend an interview or otherwise provide information, without reasonable excuse, can lead to prosecution and result in imprisonment and/or a fine. The interviews, however, are not under caution and the PACE Codes do not strictly apply.
SFO’s new operational guidance
The SFO’s new guidance comprises three separate notes: (1) internal guidance; (2) guidance for interviewees; and (3) guidance for lawyers advising those required to attend for interview under section 2 of the CJA 1987.
The guidance reiterates some of the points made by the SFO, and accepted by the court in Lord, such as the SFO’s discretion as to whether any lawyer should be allowed to attend with the witness. The guidance notes, however, go further and state that a lawyer will be allowed to attend only if the SFO case controller believes that it is likely the lawyer “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…” This apparent “criteria” is slightly concerning and seems unnecessary in circumstances where any individual forced to attend a compelled interrogation by the SFO would undoubtedly benefit from, at the very least, "pastoral support”.
Key points and ground rules
Most interesting is the guidance for lawyers as this sets out what is expected from an interviewee or their lawyers in advance of the interview to seek permission for a lawyer to attend. Written notification must be served on the SFO at least 7 days prior to the date of the interview, or 3 days after the date on which the SFO’s guidance note accompanying the section 2 notice is received (whichever is later), and the notification must include:
- The name of the particular lawyer and the reasons why their presence in the interview will assist the purpose of the interview and/or the investigation, or that the lawyer concerned will provide essential assistance to the interviewee by way of legal advice or pastoral support;
- written undertakings from the legal firm relating to, amongst other things, confidentiality of information and documents, and confirmation that the firm does not represent or owe any duty of disclosure to any individual or company who is a suspect, or may in the future become a suspect, of the investigation; and
- written acknowledgment of the parameters of the role of the lawyer in the interview, namely that the lawyer may only provide “legal advice or essential assistance”, must not do anything to undermine the free flow of full and truthful information, and generally that only one lawyer will be permitted to attend the interview. Exceptionally, an additional lawyer may be permitted to attend solely for the purpose of taking a note.
The SFO’s new guidance is noticeably different in its tone and level of prescription from the SFO’s previous policy and practice, as set out in its Operational Handbook. This is perhaps not surprising given the more robust approach taken by David Green CB QC since taking the reins of the SFO in 2012, and the issues that arose in Lord . However, the undertakings, in particular, may be viewed as excessive and unnecessary in circumstances where lawyers are already bound by legal and ethical duties of confidentiality and to avoid conflicts of interest. Various details will need to be hammered out between the SFO and law firms. For example, the first undertaking (that the firm does not represent any individual or legal person who is a suspect in the investigation) presumes that the firm will be in a position to know all existing (or indeed potential) suspects in an investigation. Will the SFO actively inform the firm of all existing and/or potential suspects to enable the firm to safely give this undertaking? Also, what if the corporate employer is a major corporation regularly employing a range of law firms? Will any individual legal adviser’s firm be required to undertake that the firm has never represented the corporate in any capacity? Or only in a capacity that is relevant to the investigation? If the former, this could vastly reduce the pool of potential legal advisers available to individuals who get caught up in SFO investigations into major corporates.
It is difficult to determine at this stage the practical impact this new guidance will have on employees who are required to attend interviews pursuant to section 2, as well as any corporate employers who are, or may come under, suspicion in due course; perhaps it will simply result in earlier appointment of separate legal representatives for individual employees. Importantly, the guidance does not appear to restrict consultation prior to the interview, which may be important, for example, to ensure that the employee’s independent lawyer understands any corporate legal privilege issues that might arise during the interview.