On the 4th May 2017 the Law Society issued a practice note intended to remind practitioners of the considerations which should apply when representing a client required by the Serious Fraud Office (SFO) to attend an interview under Section 2 of the Criminal Justice Act 1987.
Background to Section 2 Interviews
In June 2016 the Serious Fraud Office (SFO) attempted to limit the involvement of defence solicitors when assisting witnesses in fraud investigations. Under Section 2 of the Criminal Justice Act 1987 (CJA 1987) an individual with relevant information can be required to “answer questions or furnish information in relation to a fraud investigation”. Failure to comply is a criminal offence.
Guidance issued by the SFO last year attempts to limit the solicitors role as well as suggesting a lengthy set of wide reaching undertakings that will be sought by the SFO prior to the interviews.
The guidance of June 2016 reiterates the fact that the Police and Criminal Evidence Act (PACE) has no legal force in Section 2 interviews.
It also confirms that a “lawyer” will be allowed to attend the interview “if the case controller believes it likely that they will assist the purpose of the interview or provide essential assistance to the interviewee by way of legal advice or pastoral support”.
The guidance appears to rule out the attendance of a paralegal or accredited police station representative, however experienced.
Undertakings and Defence Requirements
Now comes the difficult bit. It is the requirement of the representative to demonstrate by way of undertaking that:
- They are not retained or under a duty to disclose to another person or employer who may come under suspicion;
- They may advise the interviewee on matters of legal professional privilege; and
- The decision to exclude a representative lies with the head of decision although if the interview has already begun it lies with the case controller.
The undertakings likely to be required cover the following:
- That your firm does not represent any individual or legal person who is a suspect in the investigation.
- All pre-disclosure documents and documents provided in the interview will be kept confidential.
- No relevant documents will be discussed with anyone other than your clients without the authority of the SFO.
- Documents will not be copied.
- All documents will be kept securely at the solicitor’s office at all times until returned to the SFO.
- All documents will be returned to the SFO after the Section 2 interview.
- Whilst a note may be taken of the interview, it cannot be transcribed or otherwise recorded.
- The lawyer will not disclose the content of the interview or discuss it with anyone other than the client without the written authority of the SFO.
The undertakings are given on the basis that the firm will be bound by the undertakings until further notice, they will ensure systems are deployed to ensure compliance monitoring enforcement of the undertakings and the undertakings are made in accordance with the meaning of the solicitors undertakings as set out in the SRA Code of Conduct 2011.
It is a further requirement that the solicitor acknowledges the parameters of the role in interview and that breach of the parameters is likely to lead to exclusion. The guidance then describes the parameters which restrict the lawyers role to legal advice or essential assistance, the fact that generally no more than one lawyer will be allowed in the interview and that no audio or video recording is allowed.
Law Society Guidance 4th May 2017
The Law Society’s guidance is their view of good practice in this area. It is not intended to be the only standard of good practice and it contains a disclaimer. It also reminds practitioners of principles requiring solicitors to:
- Uphold the rule of law and administration of justice;
- Not allow independence to be compromised;
- Act in the best interests of each client; and
- Provide a proper standard of service to clients.
The undertakings that may be sought by the SFO will restrict the actions a solicitor can take when acting for someone interviewed under Section 2 CJA 1987. The Society accepts that practitioners may have little choice but to agree with the conditions imposed by the SFO so as to avoid prejudicing their client’s position. In any event there is no absolute right to legal representation during a Section 2 interview (see the High Court case of R (Lord & Others) v SFO (2015) EWHC86).
Parameters of a Lawyer’s Role
A solicitor is not allowed to do anything that may undermine the free flow of information with the interviewee. Guidance suggests that the lawyer’s role will be to advise the client about legislation and to ensure fairness during the process.
This may include:
- Ensuring adequate opportunity is given to answer questions.
- Answers are not misconstrued.
- Welfare is preserved.
- Questions are clear and fair.
- Questions do not breach legal professional privilege.
- Undue pressure is not exerted.
- Time is given to consider documents.
- A client is not at risk of violating Section 2 (14) CJA 1987.
- The lawyer is able to advise their client on whether there is a reasonable excuse not to answer questions.
It is not intended to rehearse the Law Society’s Guidance in detail but these undertakings could be problematic. It is important to look at each undertaking and apply it to each case, ambiguity should be removed and appropriate limits in time and scope should be included. Your client must be made aware that the undertakings have been requested and irrelevant undertakings should not be agreed upon.
It is absolutely crucial to go through each undertaking and consider whether it is legitimate in the circumstances of your case and think through the implications of that undertaking with particular regard to your client’s case. It is important to remember that whilst your client has an obligation to attend and participate in the Section 2 interview the SFO will often see a lawyer’s presence as a benefit. They will not want to lose your co-operation and there is no reason why you cannot make representations in relation to any requested undertakings if they do not appear appropriate in the circumstances of your client’s case.
The SFO’s operational guidance can be found at the following link and the Law Society practice note can be found here.
Specialist Serious Fraud Office Solicitors (London & Manchester)
Written by Matthew Claughton. Matthew is a specialist fraud lawyer with vast experience of attending Section 2 Interviews. If you require a specialist fraud lawyer to attend a Section 2 Interview please contact Matthew Claughton by email at matthewclaughton@olliers.com or by telephone on 0161 827 7010.
