When can the SFO exclude a solicitor? The section 2 interview

The judgment of the Administrative Court in R (Lord & others) v SFO [2015] EWHC 865, handed down in February, is an important development in the law concerning the conduct of SFO investigations. Despite this, until May when this author wrote about it, the case had attracted no attention and was unreported. Since then it has become regarded as essential reading for investigations lawyers. Moreover it has spurred the SFO to impose a more restrictive policy concerning the attendance of an interviewee’s ILA at a section 2 interview.

In Lord, a multinational company was the subject of an SFO probe. The SFO suspected it of complicity in bribery. Last autumn the SFO decided to progress its investigation by requiring three senior employees of that company to present themselves before it in order to answer questions. Each was therefore served with a notice pursuant to section 2 of the Criminal Justice Act 1987. Whilst confirming that they would comply with their respective notices, the trio informed the SFO that they wished to be accompanied and advised during their interview by a solicitor. In this regard they said that they had retained the firm of solicitors which was also representing the company. The SFO objected to this firm attending the interviews. The SFO contended that because it acted for the corporate suspect, its presence could prejudice its investigation. It indicated that this objection was confined to that firm and so implicitly invited the trio to appoint another firm. The trio however were determined not to have their choice so impeded and so boldly initiated a judicial review seeking to have the SFO’s stance declared unlawful.

The issue for determination by the Court was whether the SFO is entitled to refuse a section 2 interviewee’s wish to be accompanied by a solicitor given that solicitor or their firm also acts for another suspect in the same investigation. The case does not therefore examine whether the SFO can veto a solicitor because, for example, in its view, he/she lacks sufficient expertise or probity. In this case, the Court held that the solicitors possessed “considerable experience” and were “highly reputable”. As will be explained below, this judgment is however important to a collateral issue which frequently arises when section 2 interview powers are invoked: whether the interviewee and their solicitor must abide by an SFO instruction not to discuss the contents of the interview with a third party.

Davis L.J. held in favour of the SFO, albeit with reservation, as these passages from his judgment convey: “A degree of flexibility in terms of excluding a solicitor from an interview is permissible.” This language is conspicuous in its equivocation. In the same vein he continued; whilst “the SFO was entitled to look at whether there was potentially a real risk of prejudice to the investigation before deciding as it did […] this ultimately was a decision made in the circumstances of this case.”

Bearing in mind that this was a judgment delivered on an application for leave for a judicial review and not after a proper trial of the issues, it is unsurprising that Davis L.J. opted to adopt an abstract approach. This case did not present the right opportunity to articulate a comprehensive statement of principle. Nonetheless what are its implications?

First, the judgment is not an endorsement of a blanket policy whereby the SFO can refuse the presence at an employee’s section 2 interview of his or her employer’s solicitor.

Second, it empowers the SFO to refuse the admission of a solicitor without it having to establish proof of actual prejudice to its investigation.

Third, interviewees do not have an unfettered right to chose which solicitor can accompany and advise them during their interview.

Fourth, if the SFO objects to a solicitor, this is not necessarily an imputation upon that solicitor’s reputation; the SFO can reasonably identify potential prejudice without needing to show or imply likely misconduct.

Whilst the SFO won this litigation in that it defeated the trio’s application for a judicial review at the permission stage, Davis L.J.’s judgment has a significant ramification on another aspect of SFO investigatory practice. This concerns its custom of seeking to impose confidentiality on section 2 interviewees and their lawyers about what was said and revealed to them by the SFO before and during the interview. Routinely the SFO warns them that were they to disclose what they learned to the employer or another interested party, then adverse but undefined legal consequences may befall them.

It is implicit throughout this judgment that there is no legal underpinning for such a one-sided inhibition unless it is intended to forestall communications which are motivated by a specific and nefarious purpose prohibited by law. The apposite offence would be perverting the course of justice. This offence requires an intent which is not akin to disobeying an SFO instruction of omertà. As Davies L.J. commented, “there is no obvious bar to the applicants themselves telling [the company] about the contents of the interviews.”

Since May when this case was first publicised it appears that the SFO has adopted a number of measures in some of its extant investigations which whilst not amounting to any formal change in its policy, which might require external consultation or justification, may amount to a de facto toughening of its approach towards solicitors and section 2 interviews. These consist of:

• Only allowing the interviewee to be accompanied by one ILA;
• Refusing any pre-interview disclosure; and
• Only permitting an ILA’s presence during the interview if that ILA gives a solicitor’s undertaking that he/she will not share or summarise the contents of the interview with anyone other than their interviewee client.

If, as is popularly claimed, the SFO has rediscovered its mojo under its Director, David Green QC, then this case and its aftermath are proof of it. It is likely that the presence and role of an ILA during a section 2 interview will spawn further litigation. ILAs contemplating advising a client to challenge the SFO should however consider carefully and dispassionately whether the Administrative Court is likely to hold that until there is actual unfairness, anticipatory challenges alleging potential unfairness will be dismissed.