New Guidance on when lawyers can attend an SFO section 2 interview

3 short guidance notes to replace the SFO Operational Handbook that previously governed interviews under Section 2 of the Criminal Justice Act 1987.

On 6 June 2016, the SFO issued 3 short guidance notes to replace the Operational Handbook that had previously governed interviews under Section 2 of the Criminal Justice Act 1987 (Section 2). These guidelines vary the SFO's policy regarding the attendance of lawyers at Section 2 interviews. We summarise the key points relevant to interviewees, their lawyers and D&O insurers below. Section 2 gives the SFO power to compel the interviewee to attend an interview and answer questions or furnish information relevant to its investigation. It is a crime to (i) fail, without reasonable excuse, to provide answers; and (ii) make a statement recklessly or deliberately which is known to be false or misleading.

Old Protocol

Under the old protocol, lawyers were permitted to attend SFO interviews provided that their attendance did not unduly delay, or in any way prejudice, the investigation. There was, if you like, a presumption in favour of allowing legal representation at SFO interviews.

New Protocol

The new 'guidance' requires a lawyer seeking to attend an SFO interview to submit written representations within the later of at least 7 days prior to the interview date or 3 days after the Section 2 Notice is served on the interviewee, setting out: 

• why their attendance will assist the purpose of the interview or that they will provide essential assistance to the interviewee by way of legal advice or pastoral support;
• the undertakings required as set out in the SFO Guidance for lawyers; and
• written acknowledgement that they understand the parameters of the role of a lawyer in the interview and that any breach of the parameters will likely lead to the expulsion of the lawyer from the interview.

In line with the old protocol, where it is determined that the attendance of the lawyer would cause delay, they are likely to have their application refused. Only the SFO Head of the Division can choose to refuse the lawyer's attendance before an interview. The case controller is able to exclude the lawyer from the interview once it has begun.

If a lawyer is granted permission to attend, their role is to provide legal advice or essential assistance to the interviewee, including advising on any Legal Professional Privilege issues that may arise. Otherwise, they must not do anything to undermine the free flow of information which, by law, the interviewee is required to give.

Points of interest for lawyers

There are a number of potential difficulties and points of interest which arise from the new guidance. In particular:

• There is a conflict between 2 of the 3 guides as to when a lawyer can attend an interview. On the one hand, the undertakings require that a lawyer undertakes that they do not represent any individual who is a suspect in the investigation. Contrast this with the guidance provided about legal representation, which states that a lawyer may not attend if they are unable to demonstrate that they are not retained by someone who may come under suspicion. This is a subtle but difficult position to reconcile. Practically speaking if a lawyer is representing more than one witness in an investigation, it would be difficult for a lawyer to know with certainty that they do not act for someone who may become a suspect. Further, what information is the SFO prepared to provide in order to help a lawyer provide this undertaking?
• Important terms such as ‘legal advice’ and ‘essential assistance’ are not defined. Whilst some advice clearly falls within this ambit, it is difficult to be sure what a lawyer can and cannot advise on during a Section 2 interview. If the lawyer oversteps what the SFO considers to be its remit, then the case officer may exclude the lawyer from the interview. This is a potentially serious result considering the ambiguity arising from the SFO wording. 
• In instances where a lawyer has been prevented from attending or excluded during the course of an interview, what use, if any, can the SFO make of privileged information inadvertently provided by the interviewee?

Points of interest for D&O insurers

• Interviewees and lawyers are bound by strict confidentiality requirements, which mean they are not, without the SFO's permission, allowed to disclose anything said or seen in the interview. This also captures pre-disclosure documents and documents provided during the interview. This may obstruct a D&O insurer from being able to assess and manage costs incurred in an investigation.
• Lawyers cannot act for a suspect and a witness. Therefore, this is likely to lead to an increase in the numbers of lawyers acting on any one SFO investigation, which will significantly increase the overall defence and investigation costs.
• The lawyer must serve notice to the SFO within the later of 7 days before the interview date or three days after the date of the SFO letter notifying the interviewee that they are being requested to interview. This may leave a very tight deadline for lawyers to respond and so it is possible that costs will have to be incurred without the D&O insurer's consent. This raises the risk of the D&O insurer losing some control over costs and/or the individual being in breach of the terms and conditions of their D&O policy if consent is required.
• In keeping with usual practice, the SFO will only allow one lawyer to attend the interview unless the SFO's express permission is obtained. This should help D&O insurers to at least restrict costs related to the SFO interview.

Conclusion

The new SFO guidance has removed the presumption in favour of legal representation at Section 2 interviews and replaced it with a discretionary power on the part of the SFO to allow a lawyer to attend. This places a burden upon the lawyer in order to obtain SFO permission to attend the interview and to give a number of legally binding undertakings. The likely result of this step-change in the SFO's approach is (1) some individuals will be interviewed without legal representation; (2) some lawyers may find themselves in breach of the onerous undertakings; and (3) D&O insurers may find themselves receiving an increase in investigation costs which may be incurred without permission.