High Court agrees with SFO that Corporate Counsel do not have a right to attend s. 2 Criminal Justice Act "Compelled" Interviews
Published 28 May 2015
It is widely known that the commercial practices of Glaxo Smith Kline PLC ("GSK") are being investigated by the Serious Fraud Office ("SFO") for possible criminal violations and that investigations are ongoing in a number of other jurisdictions.
Indeed, in September 2014 a court in China fined GSK China Investment Co Ltd ("GSKCI") £297 million for having found that GSKCI "offered money or property to non-government personnel in order to obtain improper commercial gains". In return for assisting the Chinese authorities with their investigation and entering guilty pleas, the English employee was given a three year suspended sentence and a deportation order and the four Chinese employees were given suspended sentences.
As part of the SFO's ongoing investigation, it had served notice on three of GSK's English employees requiring them to attend at the SFO's offices in order to answer questions and furnish information relevant to the investigation in accordance with the provisions of Section 2 of the Criminal Justice Act 1987 ("CJA"). This provides the SFO with statutory powers to require a person or entity to provide information for the purposes of an investigation. It is a power used where evidence is sought from persons regarded as witnesses and applied to people being suspected of criminal wrongdoing. The Individual is compelled to answer questions, but in return for which they get protection from self incrimination.
Although the three English employees confirmed they would comply with the notice, they advised the SFO that they wished to be accompanied at the interview by a solicitor and that they had retained the same firm which was representing GSK.
Initially, the SFO refused the three English employees any legal representation at the interviews, but this stance was later modified as a result of subsequent communications and the presence of lawyers representing the individuals at the interviews was permitted, save that the SFO would not agree to allow those lawyers representing GSK to attend the interviews with them.
In response, the three English employees ("the Applicants") sought permission to apply for judicial review on the basis that by its decision (1) the SFO had breached a common law right to be accompanied at the interview by a solicitor of his choice, (2) it was contrary to the SFO's policy, and (3) was irrational.
This application was heard by the Divisional Court, which held that the SFO acted lawfully in refusing to permit the Applicants to be accompanied at interviews with the SFO by the lawyers acting for the company under investigation in an on-going corruption inquiry.
In relation to the three grounds relied upon by the Applicants, it was held that these were unarguable because:
- Common law did not confer any right for a person to be accompanied by a lawyer at an SFO interview. If such a right was to exist, it needed to be created by parliament, and it was quite apparent from the actual provisions of the CJA that no such right is conferred on those subjected to a S2 interview;
- The SFO's policy was to permit the attendance of legal advisers at S2 interviews providing that their attendance does not unduly delay, or in any way prejudice the investigation, and that they could refuse to permit a legal adviser to attend at a S2 interview but only with good reason. For example, solicitors acting for companies under investigation did ask to be present when an employee is interviewed, but this was not always appropriate as a conflict may exist between the interests of an employer and an employee. In these circumstances, the SFO had formed the view that the presence of GSK's solicitors at the S2 interview would or might realistically prejudice the investigation, and the Court rejected the suggestion that the SFO should show that allowing solicitors to attend had actually prejudiced the investigation. The SFO was therefore entitled to look at whether there was potentially a real risk of prejudice to the investigation before deciding as it did; and
- There was no obvious bar to the Applicants seeking advice from GSK's solicitors' before the interview (if those solicitors felt in a position to give it), or from telling GSK, or its solicitors about the contents of the interviews after they have taken place, and the Applicants were free to instruct alternative solicitors to attend at the interview.
The reasons why the High Court agreed with the FCA's views on the attendance of Corporate Counsel is well understood and is based, in essence, on the potential for conflict that exists in their role in attending s.2 interviews. It is the interviewee's confidentiality in that interview that needs to be preserved, and Corporate Counsel would be in conflict with their duties to the individual and their Corporate Client. The individual also has to be mindful of the protection afforded to him under s.2 and the need to feel able to speak freely, which may be curtailed by the presence of Corporate Counsel.