Today, the Law Society has issued a practice note to provide guidance for solicitors acting in compelled interviews under section 2 Criminal Justice Act 1987 – so called “s2 interviews”.
The last two years have seen significant changes in the way that the SFO deals with the presence of legal advisers. In 2015, the Serious Fraud Office (SFO) removed their Operational Handbook from the SFO website. This coincided with a judicial review of a decision by the Serious Fraud Office (SFO) to refuse to permit three employees of a company under investigation to be represented by that company’s lawyers R (Lord & others) v SFO  EWHC 86. The handbook was replaced in June 2016 with new operational guidance.
This guidance sets out a series of “parameters” and other conditions governing the circumstances in which legal representatives will be permitted to attend a s2 interview, including the number of lawyers who may attend (usually one), notification of the name and firm of the lawyer, the observance of “ground rules” during the interview, and the reasons why their presence in interview “will assist the purpose of the interview and/or investigation’ or “will provide essential assistance to the interviewee by way of legal advice or pastoral support”. The guidance also details a long list of written undertakings that will be required from the lawyer’s firm prior to the interview. Failure to comply with any of the SFO’s demands may lead to the lawyer’s attendance at the interview being refused.
Many defence practitioners were concerned by the radically new approach adopted by the SFO, mindful of the draconian nature of s2 powers and the potentially serious consequences for those who are compelled to attend and answer questions. A unilateral requirement to limit the typical role of a legal adviser - to provide legal advice - was seen as an unfair and unnecessary imbalancing of the process in favour of the SFO. Moreover, it was feared that compliance with the guidance could put the lawyer in breach of their professional obligations to their client.
Those with experience of acting in SFO investigations and attending s2 interviews are acutely aware that those compelled to attend are at peril of prosecution and imprisonment if they are deemed not to have complied with the statutory requirements. s2 interviews are not merely a soft intelligence-gathering tool and should not be treated lightly by any of the parties involved.
The Law Society’s Practice Note aims to address the professional conduct implications of the SFO’s guidance on lawyers and the need to consider the lawyer’s duties to their client and the profession.
The Practice Note warns practitioners of the need to ensure that any agreements or undertakings entered into with the SFO do not compromise their ability to comply with their professional obligations.
Whilst noting that practitioners “will be aware” that their clients have no right to legal representation during a s2 interview - High Court in R (Lord & others) v SFO  EWHC 86 – the Law Society states in robust terms that “it does not, however, follow … that the SFO…can dictate how that practitioner should conduct himself or herself in the performance of their professional role as their client’s legal adviser and representative.”
It underlines that “your professional obligations are at all times defined by the SRA rather than by the SFO”.
Addressing the aforementioned parameters, the Practice Notes states that: “in considering whether you can agree to act within these parameters, you must bear in mind your duty to act in good faith and do the best for your client”.
The Law Society recognises that many practitioners may feel that they have “no choice” but to agree with any conditions imposed by the SFO on their attendance at a s2 interview, “in order to avoid any prejudice to their client’s position which might otherwise arise”. In terms of the undertakings required, the Practice Note takes a detailed look at some of the considerations relevant to the specific undertakings sought by the SFO. It offers both practical advice – such as defining time limits – and guidance on principles – such as conflicts and confidentiality.
The Practice Note offers useful guidance on:
- Undertakings in general, and the dangers of giving undertakings in a case where matters may progress in a way that is difficult to foresee.
- The solicitor’s duty of confidentiality, in particular in light of the SFO’s requirement to for solicitors to give an undertaking that they do not represent a suspect in the investigation
- Obligations in relation to documentation and the way in which a solicitor’s professional obligations may come into conflict with the undertakings sought by the SFO
- The SFO’s requirement that an undertaking be given not to transcribe or record the interview, and the difficulties this may cause in allowing a solicitor to properly advise their client
- The role of the solicitor in the interview – “you must not feel inhibited from intervening to provide advice”. The Practice Note sets out what that advice might include. It goes on to state that if a solicitor is excluded by the SFO in circumstances where you legitimately intervene during questioning “you should ensure that you have time to consult with your client in private before leaving, in order to advise on the circumstances in which it would be proper not to answer questions.”
The key message from the Law Society is that the publication of the SFO’s guidance does not override the need for the lawyer to consider on a case-by-case basis whether any request from the SFO is appropriate and can be adhered to without undermining the lawyer/client relationship or their professional duties. Any terms requested should be explained to the client and, if not considered appropriate or practical, should be negotiated with the SFO. If the SFO’s requests are unreasonable, consideration should be given to whether this provides the client with a reasonable excuse not to comply with the request. The lawyer should conduct themselves as they see fit to represent their client before, during and after the interview in order to act in their client’s best interests.