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Published 4 July 2016
On 6 June 2016, the SFO issued new guidance on the conduct of compelled interviews conducted under s.2 of the Criminal Justice Act 1987 ("the Act"). The new guidance represents a change of emphasis with the onus placed on the interviewee to justify the attendance of a legal adviser.
When the SFO investigates corporate wrongdoing, it has a number of ways in which it may seek to obtain evidence. One of the most effective routes to find out what has happened is to interview current and former employees of the corporate entity that is under investigation. Where those people are not themselves suspected of criminal wrongdoing, this is done, primarily pursuant to s.2 of the Act.
s.2 gives the SFO the power to compel a person to attend an interview and to answer questions or otherwise provide information. Subject to certain qualifications, it is a criminal offence to fail to attend a s.2 interview, to refuse to answer questions or to provide false or misleading information. The quid pro quo is that whatever you say in a s.2 interview cannot be used against you in criminal proceedings of which you are the subject.
In contrast to other types of interview conducted by the criminal authorities, the interviewee has no right to be accompanied by a legal adviser to a s.2 interview. Up until recently, the SFO would allow a legal adviser to attend provided that, (i) their attendance did not unduly delay or in any way prejudice the investigation; and (ii) the legal adviser understood their role, which is different to the role in interviews conducted under caution. This earlier guidance also provided that lawyers acting for the corporate entity under investigation may ask to be present when the employee is interviewed but that this may not always be appropriate and sometimes there may be a conflict of interests between the employee and the corporate entity.
In 2014, the lawfulness of the SFO's policy on attendance of legal advisers to s.2 interviews was challenged. The SFO had refused to allow GSK's legal advisers to attend s.2 interviews of 3 of its employees. The SFO said that their presence might stand to prejudice the investigation. This was based on two primary concerns, (i) that the employee may be less likely to be candid in their answers to questions, and (ii) that the legal advisers may have a duty to inform GSK of the details of the interview.
In February 2015, the High Court found that the SFO's policy was lawful and further that in this particular instance it had exercised the policy reasonably.
It is fair to say that the SFO was particularly nonplussed by this challenge and promised to issue fresh guidance on the request to be accompanied by a legal adviser to a s.2 interview. It has now done so. On 6 June, the SFO issued 3 pieces of guidance; internal guidance, guidance for the interviewee and guidance for the lawyer representing the interviewee.
The new guidance represents a more restrictive as well as a more prescriptive approach. The following points are to be noted:
What is quite apparent from the new guidelines is that the SFO will rarely, if ever, agree to allow the lawyers representing the corporate entity under investigation to attend a s.2 interview of its employees. It will, however, invariably be in the corporate entity's best interests to have legal representation prior to and during a s.2 interview. Consequently, there would appear to be a greater need for corporates who find themselves under investigation to have available a panel of independent legal advisers capable of representing the interests of their employees in s.2 interviews.
It is hoped that the SFO will adopt a practical and pragmatic approach to policing its new guidance. However, it is possible that some issues may arise:
As stated above, the new guidance is primarily aimed at the exclusion of the lawyers representing the corporate entity under investigation. There is no expectation that the interviewee is going to be routinely denied being accompanied by a legal adviser to s.2 interviews. Corporates will, however, need to consider the appointment of independent advisers at an earlier stage than they may have previously considered may be necessary.
DAC Beachcroft's White Collar Crime Unit acts for individuals subject to s.2 interview requests as well as in the exercise by criminal authorities of their of other investigatory and prosecutorial powers.
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