Partner Andrew Smith and Anna Rothwell, of Counsel have written for Law360 on when to refuse answering a UK investigators question, following the Supreme Court judgment on R (on the application of KBR Inc.) v Director of the Serious Fraud Office, which held that a foreign company cannot be compelled pursuant to Section 2(3) of the Criminal Justice Act to produce documents held overseas.
An uninformed interviewee might assume that this obligation is absolute; that every question without exception must be answered. This assumption is unhelpfully, and perhaps unsurprisingly, perpetuated by the SFO in the guidance it sends to prospective interviewees, which embellishes the statutory obligation by asserting that “Section 2 CJA gives the SFO power to compel you to answer all questions on any matters relevant to the investigation fully and accurately,” they write.
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