The Law Society yesterday issued new guidance in relation to the presence of an interviewee’s legal adviser at a section 2 interview.
Section 2 provides that the Director of the SFO may require a person under investigation or a person whom he has reason to believe has relevant information to answer questions or otherwise furnish information.
The leading case on representation in s2 interviews is R (Lord, Reynolds & Mayger) v Director of the SFO  EWHC 865 (Admin), a judgment on a renewed application for permission to apply for judicial review of the decision by the SFO not to allow representatives of Arnold & Porter UK LLP, the solicitors retained by GSK in connection with an SFO investigation, to attend section 2 interviews of the three applicants.
GSK was under investigation in relation to allegations of bribery and corruption. The SFO’s now superseded Operational Handbook then stated that defence legal advisers are permitted at s2 interviews ‘provided that their attendance does not unduly delay or in any way prejudice the investigation… Solicitors acting for companies may ask to be present when an employee is interviewed. This is not always appropriate as in some cases there may be a conflict between the interests of employer and employee’.
The SFO’s view was that the presence of lawyers acting for GSK at the s2 interviews might prejudice the investigation in that the three employees might feel unable to be candid when the lawyers might be obliged to disclose what was said to their employers.
The Court held that the SFO was acting in accordance with its lawful policy and that the decision was reasonably and properly open to it.
The SFO’s current Operational Guidance on the matter was issued on 6 June 2016. It states that:
An interviewee may request the presence of a named lawyer in advance of the interview. The request will be determined in accordance with SFO guidance on the presence of lawyers in section 2 interviews. Generally no more than one person involved in the process of providing legal advice or assistance to the interviewee will be allowed to accompany the interviewee in the interview.
A particular lawyer will be allowed to attend the interview if the SFO believes it likely they will assist the purpose of the interview and/or investigation, or that they will provide essential assistance to the interviewee by way of legal advice or pastoral support.
Representatives who believe they meet these requirements are invited to apply to the SFO with reasons and to supply written undertakings that their firm does not represent any suspect in the investigation and that all information and material will be kept confidential. They are required to abide by what are described as “the parameters”, namely:
The lawyer may provide legal advice or essential assistance. Otherwise they must not do anything to undermine the free flow of full and truthful information which the interviewee, by law, is required to give. Generally no more than one lawyer will be allowed in the interview, unless expressly agreed by the SFO. A written note may be made but no audio or video recording.
The new practice note
The Law Society’s practice note expresses some concern about the restrictions set out in the Operational Guidance.
Specifically, solicitors are enjoined to consider whether agreeing to act within the parameters complies with their duty to act in good faith and to do the best for their client. The parameters and undertakings do not override the duty to the client.
Where solicitors do agree to act, they should be careful to ensure that the interview is conducted fairly, that clients have adequate time to consider documents, that they have adequate opportunity to answer questions, that their answers are not misconstrued, that improper pressure is not exerted, that questions do not risk breaching LPP, and that the client is able to put forward an accurate account that does not place him in danger of an allegation of failing to comply with the section 2 requirement. Solicitors should be able to advise their client whether they have a reasonable excuse not to answer questions.
The Law Society explicitly envisage the possibility that a solicitor may be excluded for providing advice, and states:
You must not feel inhibited from intervening to provide advice. If you are excluded by the SFO in circumstances where you legitimately intervene during questioning, you should ensure that you have time to consult your client in private before leaving, in order to advise on the circumstances under which it would be proper not to answer questions.
The practice note also helpfully reminds solicitors that section 2 requires the interviewee to answer questions about matters relevant to the investigation – not “to be co-operative or helpful”…
This new guidance is a timely rebalancing of a picture previously dominated by the SFO’s own stance. It might also assist with defending individuals accused under section 2(13) of a failure to comply with a requirement to provide information. In circumstances where a solicitor has been unfairly excluded for purported non-compliance with the “parameters” there might arguably be a reasonable excuse for a failure to answer questions.