Presence of interviewee’s legal adviser at a section 2 interview
The use of powers granted under Section 2 Criminal Justice Act (1987) powers is a serious step in any case, and is therefore carefully controlled and monitored by the SFO.
Interviews under Section 2 must be conducted with great care to ensure that they are carried out fairly. The Police and Criminal Evidence Act and the PACE Codes have no legal force in Section 2 interviews, but considerations regarding refreshment breaks and legal consultation that apply to PACE interviews under caution are also applied to Section 2 interviews.
The purpose of a Section 2 interview is to establish facts by obtaining from the interviewee full and truthful answers to the questions asked. A practising solicitor, barrister or chartered legal executive (collectively ‘lawyer’) will be allowed to attend the interview if the case controller 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. No-one other than a practising solicitor or barrister or chartered legal executive will be allowed to attend as the legal representative of an interviewee. The legal representative of the interviewee may bring one additional lawyer who also represents the interviewee solely for the purpose of taking a note. That lawyer must also be covered by the appropriate undertakings. As interviewees and their legal representatives may not use digital devices within the interview room, lawyers should plan to take any note by hand.
Where the attendance at the interview of a particular lawyer would involve delay, they are likely to be refused attendance.
Where a particular lawyer is unable to demonstrate (by giving appropriate undertakings) that they are not retained by, or otherwise owe a duty of disclosure to any other person (natural or legal) who may come under suspicion during the course of the investigation, including the interviewee’s employer, they are unlikely to be allowed to attend the interview. This is because, depending always on the particular facts of the case, their attendance may reasonably be assessed as potentially prejudicing the investigation, whether as a result of a professional duty owed to a third party or the risk that their attendance will reduce the candour with which a section 2 interviewee may answer questions put to them.
If a particular lawyer is allowed to attend the interview, it will be on the agreed understanding that certain ground rules apply. They may, if they are able to, advise the interviewee in the event that any matter of legal professional privilege (LPP) arises. Otherwise, they must not do anything to undermine the free flow of information which the interviewee, by law, is required to give. It is the duty of the interviewer to ensure that this rule is observed. In the event of any perceived infraction, or obstruction of the interview process generally, the lawyer will be excluded from the interview.
Any decision to prevent in advance the attendance of a particular lawyer at a Section 2 interview, must be taken by the Head of Division. Any decision to exclude them once the interview has begun, for a breach of these ground rules must be taken by the case controller, and is not subject to authorisation by the Head of Division. The attendance of a lawyer will never be at the expense of the SFO.
When the Section 2 Notice is served, it will be accompanied by a letter to the interviewee, enclosing a leaflet for the interviewee, and a leaflet for the attention of any lawyer instructed to advise the interviewee. These explain the pre-interview process for deciding whether the interviewee may be accompanied at the interview by a particular lawyer.
The case controller must follow the set process whenever a decision is made to prevent in advance the attendance of a particular lawyer at a Section 2 interview or to exclude them once the interview has begun. They must record it fully on the case decision log. Nothing in the above can inhibit the authority of the case controller to exercise their discretion in regulating the interview process.
An interviewer may not under any circumstances give the interviewee legal advice.