SFO publish new operational guidance for those attending, advising or conducting an interview under section 2 of the Criminal Justice Act 1987 (CJA 1987).
On 6 June 2016 the SFO published new operational guidance for those attending, advising or conducting an interview under section 2 of the Criminal Justice Act 1987 (CJA 1987).
In 2015 the previously stagnant approach taken in section 2 interviews evolved when the Divisional Court in R (Lord & others) v SFO  EWHC 865 (Admin) endorsed the SFO’s recent decision to exclude a lawyer from being present in an interview where they deemed their presence would prejudice the investigation as they acted for the corporate suspect as well as a number of witnesses.
Guidance previously issued by the SFO only allowed for the exclusion of a lawyer where their presence could prejudice the investigation or would cause delay, however the new guidance goes far beyond the previous criteria. Despite being issued under the facade of guidance and with no statutory founding, the SFO set out a list of mandatory requirements which a lawyer must comply with in order to be present at an interview.
The new guidance includes the following provisions:
- A lawyer will only be allowed to attend the interview by making a written application to the SFO in advance providing an explanation as to how they will “provide the essential assistance to the interviewee by way of legal advice or pastoral support.” Quite what the SFO expect the lawyer to say in this application is uncertain. One would imagine that to provide detail beyond confirming they will provide “legal advice or pastoral support” will impeach on instructions protected by legal professional privilege. Furthermore – what is an individual’s recourse if the application is rejected on the basis that the SFO doesn’t agree that either pastoral or LPP advice is warranted?
- The lawyer is required to give an undertaking to confirm they are not retained by, or owe a duty of confidence to any other person “who may come under suspicion during an investigation.” The lawyer will only be able to confirm whether or not they represent anyone else at that point, it is often only the SFO who truly know whether that person may or may not “come under suspicion during an investigation” at some unknown point in the future.
- A formal undertaking must also confirm that all pre-disclosure documents and documents provided during the interview will be kept confidential between the firm and the interviewee and will not be discussed with anyone else without written authority of the SFO. The lawyer is not permitted to make copies of the material provided and at the end of the interview process all material disclosed must be returned to the SFO. There is an obvious risk that such material could attract LPP if the lawyer has annotated the papers whilst taking instructions from their client. Arguably a more practical approach would be for the lawyer to confirm they will destroy the material as opposed to returning the material.
- Under the new guidance the SFO has the right to exclude a lawyer from the interview if, during the interview it is perceived that “they do anything to undermine the free flow of information…”. Presumably repeatedly having to request clarification as to an unclear line of questioning, or provide a word of caution as to an unduly badgering or repetitive line of questioning could be deemed by some case controllers to “undermine the free flow of information”, but would be viewed by most responsible defence lawyers as simply doing their job.
It is evident that this guidance raises numerous difficulties for the lawyer and it will be for the individual lawyer to make representations to the SFO that certain aspects of this guidance should not be imposed. However it is too early to know whether the SFO are going to adopt a pragmatic and flexible approach with their implementation and whether they will be looking at these issues on a case by case basis.
Amy is a criminal litigator with experience in serious and complex general crime and white collar crime. She has worked on a range of cases prosecuted by the Crown Prosecution Service , SFO, Revenue and Customs, and Trading Standards. She has defended investigations and prosecutions for large scale drug offences, money laundering, sexual offences, serious violence and murder. She is also experienced in confiscation proceedings.
Amy is a solicitor advocate (Higher Courts Criminal) and represents clients at the police station, Magistrates and Crown Court.