An amendment to the SFO’s guidance on the attendance of lawyers at section 2 interviews – a superficial victory?

In June 2016 the SFO published new guidance concerning the attendance and conduct of lawyers at witness interviews under section 2 of the Criminal Justice Act 1987. This guidance limited the role of such lawyers, stressing that they were permitted to provide only “essential assistance […] by way of legal advice or pastoral support”.  This, in the eyes of the SFO, meant the lawyer doing nothing that would “undermine the free flow of information which the interviewee, by law, is required to give”. The guidance stated that only one lawyer who acted for the interviewee was permitted to attend the interview, and that this lawyer must sign certain undertakings prior to the interview. These undertakings include restrictions placed upon the witness’s lawyer concerning: a) the representation of other individuals who may be or may later become a suspect in the investigation, b) the passing on of information to third parties, and c) the storage and retention of documents.

In the ensuing months, and seemingly buoyed by the SFO’s approach, this firm had experience of other prosecutors, such as HMRC and the NCA, adopting the SFO’s policy when interviewing witnesses under compulsion. There followed a small revolt by defence lawyers, culminating in May 2017, when the Law Society published a Practice Note. This Practice Note highlighted the various conduct issues that might arise from the constraints placed upon defence lawyers by the SFO’s guidance.

Last month, the SFO finally responded to the Law Society, drawing its attention to the SFO’s recently revised guidance on section 2 interviews. The SFO’s letter stated that in addition to having a lawyer in attendance at interview, the revised guidance means that “the interviewee may bring one additional lawyer […] solely for the purpose of taking a note”.  It went on to state that the SFO is carefully considering the undertakings required from lawyers attending section 2 interviews. The SFO had, it said, taken into account the Law Society’s Practice Note and “would welcome any further observations […] on the existing operational guidance.”

This single amendment to the SFO’s 2016 guidance is no more than a gesture towards defence lawyers. Hundreds of suspects in criminal investigations are interviewed under caution by law enforcement authorities (including the SFO) every day across the country, and the vast majority of these suspects have only one lawyer representing them, even though they are significantly more exposed than a section 2 witness. To have two lawyers attend and take notes of a witness interview will be welcomed by defence lawyers, but from the SFO’s perspective, it is a concession that costs nothing.

Indeed, this superficial victory ultimately distracts from the far more significant problems that remain in the revised SFO guidance – problems which are ultimately questions of principle and fairness as opposed to convenience and ease of note-taking. What are they?

The SFO has not, as yet, made any amendments to its guidance concerning the role of the witness’s lawyer. As highlighted by the Law Society, a lawyer acting for a witness has a professional duty to act in his or her client’s best interests, and so he or she should not be circumscribed by the SFO guidance in the carrying out of that duty. It is unfortunate that the SFO does not recognise this. The guidance fails to appreciate that a competent lawyer who acts in his or her client’s best interests is likely to aid, rather than hinder, the production of an effective interview, increasing both the scope of the relevant evidence that the witness is able to give and enabling that evidence to be more reliable, so that more informed charging decisions can be made.

It does not necessarily follow that by shutting down lawyer involvement at the interview stage a fuller, more accurate account will be produced. It may instead result in significant and, from the SFO’s perspective, unhelpful changes being made to the witness statement post-interview, either in advance of or during trial as the issues between prosecution and defence crystallise.  

It is entirely fair that the SFO retains the power to eject a lawyer from a section 2 interview in the event that he or she becomes positively obstructive, as is the case in an interview under caution. But by attempting to restrict the role of the witness’s lawyer, the SFO is reversing the problem, creating the potential for a conflict for the lawyer which requires him or her to dance between properly representing his or her client whilst also satisfying the SFO’s arbitrary and extra-statutory description of what the lawyer’s role should be.

Whilst the SFO states that it is reviewing its policy on the use of undertakings, at present they remain in frequent use and as tightly drafted as they were when they were introduced in 2016. Again, the SFO has had little regard to the professional obligations owed by the witness’s lawyer under the SRA Handbook and SRA Code of Conduct 2011.  The lawyer must act in the best interests of his or her client, and this may mean that an undertaking restricting the flow of information to a third party, for example, becomes incompatible with the lawyer’s duty.

The SFO has no equivalent power to constrain the witness, to whom the undertakings would not apply. So whilst the SFO may seek control over the actions of the lawyer, those attempts will ultimately be of little practical effect if the witness chooses to act in a particular way or chooses to speak to a particular person.  The law already makes provision for certain wrongdoing by witnesses, for example through offences such as perverting the course of justice, and so circumscribing the lawyer’s permissible conduct far more narrowly than the law circumscribes the witness’s permissible conduct is ultimately a fruitless exercise.

The provision of disclosure prior to the interview is not approached consistently by the SFO. Many witnesses continue to be refused disclosure of (a) a list of topics to be covered in interview, (b) the time period to which the subject matter relates (this happened in a recent section 2 interview which this firm attended), and (c) copies of documents to be put to the witness in interview. The result of this defensive approach is that the witness has no opportunity to prepare properly or to place into context the documents that are drip-fed throughout the interview; his or her answers are likely to be inherently less reliable as a result.

Were the witness to be treated as a suspect and subjected to an interview under caution, it is likely that in a complex case the SFO would provide meaningful disclosure in advance of the interview. (If it is not provided, there may be good reasons for withholding certain documents for forensic purposes, and the suspect can always exercise his or her right to silence). The SFO has therefore created the nonsensical situation in which a suspect may have more knowledge of the case prior to his or her interview than a witness has prior to his or her interview, in circumstances where the witness could become an important foundation for the SFO’s case should charges be brought, and where the witness, unlike the suspect, has no option but to answer questions. It is difficult to see what investigative advantage this anomaly creates for the SFO.

Despite the superficial victory of two lawyers being permitted to attend future section 2 interviews, the more significant points of principle and fairness concerning the role and conduct of these lawyers remain unanswered in the SFO’s revised guidance. They will continue to remain unanswered for as long as certain SFO investigators adopt a hostile stance towards section 2 witnesses (and their lawyers). If there are grounds for suspecting that the individual has committed a criminal offence, he or she should be interviewed under caution. If this evidential threshold is not satisfied, the individual should be interviewed as a witness instead, which means being given the opportunity to provide the most reliable account and treated with a civility commensurate with his or her status as a witness. Indeed, the SFO does not even refer to “witnesses” in its revised guidance, preferring the status-less term “interviewees”. The fact of an interview under compulsion should not automatically render a witness unhelpful or unfriendly to the SFO in the evidence that he or she can offer. The approach of the SFO towards witnesses in certain of its cases, however, may achieve exactly that result. It is to be hoped that the Law Society and other organisations will persuade the SFO to make more meaningful changes to its guidance that remedy all of these problems.

Corker Binning