The New SFO Guidance and Procedures for Section 2 Interviews
Melanie Zwennes explains the impact of the new Guidance and Procedures for Section 2 Interviews.
On 6 June 2016 the SFO published a new guidance for lawyers advising those required to attend for interview under Section 2 of the Criminal Justice Act 1987 ("CJA"). This replaces the old SFO guidance. The new guidance has been published following the decision of the High Court in the case of R (Lord) and Others v The SFO  EWHC 86 ("Lords"). However, it is arguable that there were combinations of factors which led to the publication of this new guidance, some of which will be considered in this article.
What are Section 2 interviews?
Under Section 2 of the CJA 1987, the SFO can compel "a person whose affairs are to be investigated or any other person whom he has reason to believe has relevant information to answer or otherwise furnish information with respect to any matter relevant to the investigation". Failure to comply without reasonable excuse is a criminal offence. The PACE provisions do not apply because these are not interviews conducted under caution. However, if at any time during the course of a Section 2 interview there is need to caution the interviewee, the interview will be stopped and the PACE provisions will apply accordingly.
The old SFO guidance
The old SFO guidance had been in practice for many years and has been until now, a tool by which numerous Section 2 interviews have been conducted since 1988. Under the old guidance, the basis on which the SFO could exclude the attendance of a lawyer to a Section 2 interview was if their attendance would prejudice or delay the investigation. However, the old guidance did not set out how the SFO would execute its discretion to exclude a lawyer from attendance nor did it stipulate any preconditions for the lawyers to comply with before being permitted to attend the interviews. It simply stated that the SFO would permit a lawyer to attend at an interview to represent a witness.
Possible deficiencies of the old guidance
Some may argue that there were possible deficiencies of the old guidance which in some way, restricted the SFO from obtaining information under Section 2 interviews as it set out to do. Some of the possible deficiencies that could be argued are as follows:-
- The attendance of legal representatives at times, acted as a hindrance to witnesses being forthcoming with information
- The attendance of legal representatives in mass numbers at interviews, obstructed witnesses, or led to witnesses occasionally being influenced in their answers to question and thereby less forthcoming in providing information
- Lawyers of the interviewee's employers would at times request permission to attend the interviews. Where lawyers of the interviewee's employers were not permitted to attend the interviews, they would request update briefing of the interview from the interviewee's representative who was permitted to attend the interview. As a result, documents and witness evidence were being shared with suspects and other witnesses thereby contaminating the investigation.
In the case of Lords the SFO refused to permit 3 senior employees to be accompanied in the Section 2 interview by lawyers from the same law firm that represented the corporate.
The SFO's new guidance
The new guidance can be seen as an extension of the old guidance. The SFO are still able to exclude a lawyer from attendance on the basis of prejudice or delay. However, in addition to this, the SFO has now introduced undertakings which a lawyer has to abide by in order to be permitted to attend a Section 2 Interview.
Under the new guidance, a lawyer will not generally be permitted to attend an interview with a witness. A lawyer will only be allowed to attend the interview if the SFO "believes it likely that they will assist the purpose of the interview and/or investigation, or that they will provide essential assistance to the interviewee by way of legal advice or pastoral support". In advance of the interview, the lawyer will have to make an application to the SFO explaining why it has met the conditions. The lawyer has to give a written undertaking that disclosure of documents and the contents of the interview will not be made to anyone other than the Section 2 interviewee without the SFO's prior written consent. There may be circumstances where the client's best interests are served by speaking to a third party. Should the SFO subsequently refuse the lawyers consent to speak to a third party the lawyer may be precluded from acting in the client's best interests.
It is arguable that there are possible ways by which a witness can circumvent this disclosure undertaking. The undertaking does not prohibit a witness from speaking to a third party. A witness could speak directly to a third party about the interview and report back to their lawyers or they could appoint a new lawyer who has not given the undertaking. In doing so, the witness is able to speak to a third party about the content of the interview.
The lawyer must give written acknowledgement prior to the interview that he or she will respect certain parameters of interview, and that they will not do anything to undermine the free flow of full and truthful information which the interviewee is obliged to give. It may be argued by some that there are occasions where a lawyer may need to interject during an interview where they are concerned that an interviewee is not being treated fairly; they are being misunderstood or misconstrued in their answers, or they have to speculate about events which are not within their knowledge. Such occasions, will therefore, understandably and arguably disrupt the 'free flow' of information. Therefore, this notion of "free flow information" may not have taken into account such circumstances which may arise during an interview.
Under the new guidance only one lawyer will be allowed to attend the interviews apart from in exceptional circumstances.
The SFO's new guidance has undoubtedly the hallmarks of upholding best practice required by all lawyers during a Section 2 interview. The new guidance deals with some of the deficiencies of the old guidance for example, by limiting the number of lawyers permitted to attend interviews and to some extent limiting disclosure risk.
However, there are some concerns about how the SFO will apply this guidance. In particular:
- Some witnesses may be discouraged from providing a witness statement and attending court to give evidence if they are refused legal representatives during the Section 2
- Many individuals who are faced with a Section 2 are often on the threshold of being regarded as a suspect. In such circumstances it must be fair that they are represented
- There is a risk that a client's best interest will be impacted upon, in circumstances where their lawyers are refused consent to speak to a third party.
These are early days and therefore we are yet to assess the full impact of this guidance and how in practice it will be implemented.