The section 2 interview: when can the SFO exclude a solicitor?

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 investigations by the SFO.  The case has attracted no publicity to date and surprisingly is unreported.  It is significant for all investigations lawyers. Moreover, in consequence, the SFO is set to amend its policy on the attendance of lawyers at section 2 interviews.

In Lord, a well known multinational company was the subject of an SFO probe. The SFO suspected it of complicity in bribery. Last autumn the SFO decided to progress this investigation by requiring three senior employees of the company to attend before it in order to answer questions and thus furnish information. 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 notice, 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 in relation to the same investigation; a large international firm.

The SFO objected to this firm attending the interviews. The SFO contended that because the firm acted for the corporate suspect, its presence could prejudice its investigation. It indicated that this objection was confined to this firm and so implicitly invited the trio to appoint another. The trio however were determined not to have their choice so impeded and so boldly initiated a judicial review of the SFO’s stance.

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 particular solicitor only because that lawyer also acts for a suspect in the same investigation. Whether the suspect is a corporate or not is immaterial.

The case concerns only this particular SFO objection. The judgment does not consider whether the SFO could properly exercise a similar veto because, for example, in its view the solicitor or firm involved lacks sufficient expertise or probity. In this case the Court held that the firm involved had “considerable experience” and was “highly reputable”. However, by implication, as will be explained later, this case is important to a related but separate  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.” Such 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 this abstract approach. This case was not the right one in which to articulate and impose a comprehensive statement of principle. Nonetheless what observations can be made about it?

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 their employer’s solicitor.

Second it empowers the SFO to refuse admission of any 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 subsequently the SFO objects as it did in this case this is not necessarily an imputation upon the solicitor’s reputation; the SFO can reasonably identify potential prejudice without needing to show or imply likely misconduct by anyone.

Aside from the issue of the conduct of section 2 interviews 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 if they disclose what they learnt to their employer or another interested party then adverse legal consequences may befall them.

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

If, as is popularly claimed, the SFO has rediscovered its mojo under its Director, David Green, then this case is proof of it. But as the case also shows, the SFO cannot impose a blanket of confidentiality over its interviews and, if they wish to exclude a particular solicitor from a section 2 interview, they must only do so with good reason.  It will be interesting to see the proposed amendment to SFO policy in this area on which the Director might find it helpful to consult prior to implementation.

The article can also be read in The Barrister and Fraud Intelligence.