By Rebecca Dix
On 6 June 2016 the Serious Fraud Office (SFO) published their revised protocol for Section 2 interviews that should be read by both interviewees and lawyers instructed to attend.
The three short guides serve to replace the guidance issued in the previous Operational Handbook that was taken down from the SFO website shortly after the decision of R (Lord) v SFO  EWHC 865 (Admin). What is plain to see is that the guides, found within the SFO’s Code and Protocols web page, are much more prescriptive in their terms and go so far as requiring advance written undertakings and representations from any lawyer instructed to attend a Section 2 interview.
The changes to the policy on Section 2 interviews were expected after the decision in Lord where the Divisional Court ruled that the SFO were entitled to refuse to permit three senior employees of Glaxo-Smith Kline plc (GSK) to be accompanied at interviews, relating to a corruption investigation, by lawyers representing GSK. A detailed background and outcome of the Lord case can be found here.
What are the Ground Rules?
For the interviewee the ground rules make it plain that he is warned not to disclose anything said or seen in the interview to anyone except their lawyer and to do so could disrupt the investigation. Such disclosure may amount to a crime where there is a criminal investigation under way, in other words the crown are making it clear that it would consider issuing proceedings for perverting the course of justice, an offence punishable by way of imprisonment.
This is a new explicit warning to interviewees who are, as we know, compelled by law to answer the questions in the interview. No further guidance on this point is provided and therefore no exception seems to have been made to allow an employee to inform his employer of the content of the interview. In practice, perhaps this rule will be determined on a case by case basis to be agreed with the prosecution.
A lawyer will only be allowed to attend an interview if the case controller believes it likely that they will assist the purpose of the interview and/or investigation, or that they will provide essential assistance to the interview by way of legal advice or pastoral support. Notably, where it is determined that the attendance at the interview of a particular lawyer would involve delay, they too are likely to be refused attendance.
A lawyer is also unlikely to be permitted to attend where it is shown that he owes a duty of disclosure to any other person who may come under suspicion during the course of the investigation, that person includes the employers of the interviewee. The SFO justify this approach on the basis that their attendance may be assessed as potentially prejudicing the investigation and therefore quite plainly rely on the ruling of the Divisional Court inLord.
The guidance provides that should a lawyer seek to attend with an interviewee then representations must be put into writing by that lawyer within a prescribed time to set out why they propose they should be present and to confirm that they agree to the undertakings required by the SFO on disclosure.
Whilst it is only the Head of the Division (SFO) who can refuse the attendance of a particular lawyer before an interview, it is the case controller alone who has the authority to exclude the lawyer from the interview once it has begun, if for example it is determined that an undertaking has been breached or a delay is being caused to the interview by the conduct of the lawyer.
The SFO have also sought to emphasise that each case will be determined by its own particular circumstances and therefore these ground rules may be more onerous in some cases than they would be in others. It does however confirm that the SFO stand by their representations during the Lord case and it is unlikely that lawyers representing a company under investigation will be able to represent an employee during an interview, thereby seeking to maintain the independence and integrity of any investigation into the organisation.
The terms of the new ‘guides’ are drafted in a surprisingly arbitrary way in stark contrast to their predecessor that came with a caveat that, ‘the SFO Operational Handbook should not be used as a base for decision making in any respect’. The new guides quite clearly set out that written undertakings and agreements are required before your name can be part of the guest list to attend. It is unclear how the SFO are able to describe these terms as guidelines when in fact they set out mandatory requirements of any lawyer wanting to be present at the interview.
It could be argued that these mandatory requirements go further than what was expected as a result of the Lordcase. The starting point of the previous SFO policy was to permit the attendance of defence legal advisers at interview, provided that their attendance did not unduly delay, or in any way prejudice the investigation and that their role was understood. These new guides seem to go one step further than that by seeking prescriptive and arguably arbitrary undertakings from law firms, who are already subject to Rules of Conduct by the Solicitors Regulation Authority. A legal challenge of some kind might reasonably be anticipated. Perhaps, the case of Lordmay not be the last of its kind.