Lawyers in s2 interviews; are we all pastors now?

In June 2016, after a period of experimentation, the SFO promulgated an amended set of policies concerning the exercise of its power to conduct compelled interviews under Section 2 (s2) of the Criminal Justice Act 1987 (CJA). Part of this package is a document entitled “Presence of an interviewee’s legal adviser at a section 2 interview”. This expounds the SFO’s view as to their proper role whilst attending a s2 interview with their interviewee client. This article considers whether this guidance should cause such lawyers sitting alongside their client, in one of the SFO’s fetid basement interview rooms, to act differently to how they acted previously. It is evident from both the tone and substance of this SFO initiative that it believes they should.

The precursor to this SFO initiative was the Administrative Court’s judgement in the Lord case handed down 18 months ago (a ruling refusing permission and not a fully argued application). Davis L.J. upheld the SFO’s contention that s2 interviewees are not entitled to be represented during their interview by a lawyer of their choice. Accordingly, the SFO was entitled to refuse admittance to a lawyer against whom it harboured a reasonably founded particular objection or suspicion. A valid objection could be where the lawyer’s firm also represents a suspect in the same SFO investigation if their joint representation caused “a real risk of prejudice to the investigation” (para 23 of judgment). The Judge in the Lord case, however, did not hold that the SFO could object to the presence of a lawyer as a matter of principle. The ratio of this case is that to be lawful, a refusal to admit the interviewee’s nominated lawyer has to be specific and reasonable.

During his tenure as Director of the SFO, David Green has frequently contended that when it comes to obtaining information from witnesses, lawyers are, sometimes unwittingly and sometimes not, an impediment or contaminant in the evidence gathering process. Prior to this new s2 policy Mr Green had continuously sought to implement this rhetoric. For example, in the past when companies have self-reported a discovery of potential fraud within their organisations to the SFO, increasingly the SFO’s immediate reaction is to stipulate that co-operation with it means that only it possesses the authority to debrief any potential witness of fact and that the company’s lawyers should not engage with such individuals.

It is apparent that Mr Green’s adverse perception of lawyers representing witnesses was emboldened by the judgment in Lord. Thus, an opportunity had arisen enabling the SFO to reinforce its position. This new policy extrapolates from the Lord judgement.

Appreciating that a blanket ban on lawyers attending s2 interviews would probably be overturned on a judicial review, this policy is intended not to transgress this line, but to get as close to it as possible.  The gist of the policy is as follows: the SFO possesses a broad discretion to refuse admittance or to expel lawyers from s2 interviews. The corollary of this is an entitlement to impose stringent conditions which a prospective attendee lawyer must abide by in order to be afforded access to the interview.

At their core, these conditions are twofold. Firstly, a suite of undertakings severely restricting what use the lawyer can make of information which the SFO may reveal during the s2 process. These proposed undertakings are not considered in this article, as they concern what should happen before and after the interview. Secondly, promises which the lawyer must give to the SFO confirming that during the interview they shall comply with the SFO’s “ground rules” as to their role. The policy contemplates that if their conduct during the interview is not so consistent, their peremptory expulsion may ensue. Whilst the SFO’s policy is silent as to what should then happen, presumably it will be contended that the interview should continue, despite the interviewee having just been deprived of their legal representation.

What are these “ground rules”? Essentially there is only one. The lawyer can only attend if the SFO is satisfied that the lawyer accepts that their presence is only to provide “essential assistance to the interviewee [their client] by way of legal advice or pastoral support”. The guidance provides an illustration of this principle by way of stipulating what “essential” does not mean; the lawyer must refrain from doing “anything to undermine the free flow of information which the interviewee, by law, is required to give”. The only situation contemplated by the guidance where essential advice may justify such an undermining is that concerned with protecting or maintaining the interviewee’s LPP.

It is submitted that this rhetorical wording, replete with uncertainty, is intended to daunt and discourage lawyers from thinking that their role during the s2 interview is, LPP aside, greater than that of a bystander or scribe. With the furthest possible extent of their role being to act as the interviewee’s pastor, handing out the tissues in the event of tears. Fundamentally, the lawyer’s silence or inertness is, excluding extreme circumstances, golden. Exaggerating slightly, what the SFO wants lawyers to think is that “essential” means that it’s not until the interviewers start carrying out their threat to beat your client, that an intervention becomes permissible.  Allowing a “free flow of information”, means it’s wrong to ever interrupt to seek clarification of a verbose question or to suggest that the client’s answer to a question has been severely misconstrued.

It is submitted that, notwithstanding this determined SFO effort to the contrary which this policy embodies, the law relating to the proper role of a lawyer during a s2 interview has not changed at all. This policy, whatever it purports, has not transported an s2 interview into a different legal realm from that of other compulsive interviews, such as those conducted by the FCA under s147 of FSMA, court appointed liquidators under s235 of the Insolvency Act 1986 or DTI inspectors under s447 of the Companies Act 1985. In all of these types of interview, the statutory schemes governing which were largely enacted during the late 1980’s when the SFO was set up with its s2 power, the courts have consistently been intolerant of compulsive questioning which amounts to oppression or other unreasonable behaviour. They have also ensured that questioners do not arrogate to themselves the power to determine what is reasonable or otherwise.

In 1997, in the only outing of the author’s career to the Chancery Division, the then Vice-Chancellor repudiated the assertion by a DTI Inspector, Sir John Thomas as he then was, that the interviewee’s refusal to answer his questions was unreasonable and that if the interviewee was permitted not to answer then the edifice of the DTI inspectors regime would collapse. A lawyer acting in a s2 interview has to, to state the obvious, behave reasonably. So must the questioners. The law inevitably expects an interplay between both sides such that the lawyer is more than a bystander. It is submitted that it is reasonable to interject if the questioning becomes intimidatory, sneering or confused. This is especially so where the interviewee faces the serious consequence of prosecution for misleading the SFO, or giving false information in a s2 interview.  It is also in the interests of the SFO to permit objections as it cannot be in its interests to rely on answers obtained improperly, or where the witness has been misled by the interviewer.  A witness statement may later need to be taken based on the transcript of the interview. If the SFO expel the lawyer because, as borne out by the transcript, the lawyer was justified in objecting to a line of questioning, then the Administrative Court will surely be unlikely to support the SFO’s policy.

Advising someone that they have to act “reasonably” is helpful only to a limited extent. So to avoid use of the same vague rhetoric for which the SFO is accused in this article, consider now four situations where a conflict over what is reasonable could arise. What then would a court of review be likely to hold?

First, is it permissible for the lawyer to interrupt because he/she believes that the questioning is straying into issues far beyond the parameters set by the s2 notice which caused the interview to occur? Probably not.  The judgment in Lord, in effect, grants the SFO latitude in determining whether its questioning is relevant or not. The lawyer is unlikely to be able to mount a persuasive challenge on relevance because, of course, the SFO is likely to know a far lot more about its investigation.

Second, is it permissible for the lawyer to interrupt because he/she fears that their client’s answers are or are likely to amount to a confession (be self-incriminating)? Probably not, as s2(8)(AA) and (b) preserve the interviewee’s privilege against self-incrimination. The scheme of s2 is not to permit the interviewee to avoid imparting information adverse to their interests. The lawyer cannot properly object to questioning which has this outcome. Indeed they might even wish to encourage it if to do so would be likely to impede a prosecution of their client thereafter.

Third, is it permissible for the lawyer to interrupt because he/she apprehends that their client may inadvertently be revealing information which violates the LPP belonging to a third party? For example, where the interviewee is an employee of a company under investigation and is asked what legal advice has been rendered to the company. Probably yes, as our common law affords a special exalted status to LPP. It is unlikely that questions which are designed to or have the effect of eliciting information the subject of another’s LPP would be condoned by a reviewing court.

Fourth, is it permissible for the lawyer to intervene to contend that their client has a reasonable excuse for not answering a question?  Probably yes, because this falls within one of the two exceptions to the s2 power. The objection should however to be firmly grounded and one which the lawyer believes a court would be very likely to respect.

Is it a reasonable excuse to refuse to answer a question which invites the interviewee to speculate? Probably not. However, the lawyer should consider clarifying with the interviewers that the answer which is being sought will amount to only their client’s opinion or guess. If nothing else, this should facilitate a better understanding of the reply when it is read in a subsequent transcript.

The most troublesome aspect of this policy is its imputation that the lawyer’s role in a s2 interview, unless severely circumscribed, is likely to inhibit a positive good: a free flow of information. This creates an ideal which has the connotation of a pastoral or bucolic idyll, with cheery and dispassionate truth-seekers from the SFO never overreaching their authority or misunderstanding a reply. An ideal which implies that there is no or hardly any need for lawyers to attend at all and whose presence is little more than a necessary evil.

Fortunately, the law does not regard legal advice with similar disdain. Whilst this SFO policy may be worded so as to appear to be a logical extension of the Lord case, its ambiguities and motivation may mean it contains the seeds of its own destruction. In the meantime, lawyers acting for s2 interviewees should be robust and professional in ensuring that the client’s interview is conducted fairly. SFO Lawyers should be mindful that they are bound by their professional conduct rules quite apart from the SFO’s own obligations, to ensure that s2 interviews are conducted fairly and that unfair advantage is not taken of someone who is not their own client.