The defence lawyer's role in a section 2 interview
Celia Marr and Jennifer Ross discuss new SFO guidance on the presence of lawyers in section 2 interviews, the use of the â€˜propensity gateway', and social media offences
On 6 June 2016 the Serious Fraud Office adopted new guidance on the presence and role of lawyers in interviews conducted under section 2 of the Criminal Justice Act 1987. Section 2 gives investigators the power to require any person believed to have relevant information to attend an interview and to answer questions. A failure to meet such a request without reasonable excuse constitutes a criminal offence. This power is often used to interview individuals who owe a duty of confidence in relation to the relevant information but who are not suspects to whom the safeguards under the Police and Criminal Evidence Act apply.
The legislation itself is silent on whether an individual has the right to legal representation at a section 2 interview. Previously, the written policy of the SFO was to permit the attendance of defence legal advisers provided that it ‘does not unduly delay or in any way prejudice the investigation’ and advisers ‘understand their role’, in particular how this differs from their role in a cautioned interview.
The SFO’s application of this policy was scrutinised by the Administrative Court in R (on the application of Lord) v Director of the SFO  EWHC 865 (Admin). In that case, the SFO required employees of the GlaxoSmithKline group (GSK) to attend section 2 interviews during the course of an investigation into possible bribery and corruption. The court held that the exclusion of the employees’ lawyers from the interviews, where the firm also acted for GSK, was justified on the grounds that their attendance could prejudice the investigation.
Following this decision, the SFO introduced its new guidance, which, in fact, goes significantly further than the pre-existing policy, the application of which was approved by the Administrative Court’s ruling. In summary, the position is now as follows: an interviewee may request the presence of a sole named lawyer in advance of the interview but reasons must be given as to why this lawyer will ‘assist the purpose of the interview and/or investigation’ or ‘provide essential assistance to the interviewee by way of legal advice or pastoral support’. The firm should provide written undertakings confirming that, for example, it does not represent any person or legal person who is a suspect in the investigation, that all documents provided will be kept confidential, and that there will be no unauthorised disclosure of the contents of the interview to third parties.
The attending lawyer is also required to acknowledge in writing various ground rules which state, in particular, that they are limited to providing legal advice or essential assistance and must not undermine ‘the free flow of full and truthful information’ which the interviewee is required to give. In exceptional circumstances a second individual, who may or may not be a lawyer, will be allowed to attend the interview, solely for the purpose of taking a note and only if they are covered by those same undertakings.
Thus, for the first time, the onus is firmly on lawyers to justify their presence at section 2 interviews. While the requirement to provide undertakings will likely be unpopular with firms, the contents of those undertakings to some extent overlap with solicitors’ existing professional conduct obligations. The SFO’s guidance is, however, more prescriptive, particularly in relation to whom the attending lawyer can act for and their handling of relevant documents. Many practitioners will also be concerned that the narrowing of their permitted role in these interviews could prove incompatible with acting in the best interests of their client.
On 19 October 2016, the Supreme Court handed down its judgment in the case of R v Mitchell (Northern Ireland)  UKSC 55. The defendant in this case had been convicted in 2010 of the murder of her ex-partner. In the course of the trial, evidence of the defendant’s previous bad character was admitted via the ‘propensity gateway’ in articles 6(1) and 8(1) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004.
The jury was made aware of several previous occasions on which the defendant had allegedly used a knife as a weapon, none of which resulted in her being convicted of an offence, and were directed to ‘take [this evidence] into account or leave it out of account as you consider appropriate’. The defendant appealed her conviction on the grounds that the judge did not properly direct the jury in relation to this evidence.
The Court of Appeal in Northern Ireland allowed the defendant’s appeal, quashing her conviction and ordering a retrial. In delivering the court’s judgment, Lord Justice Gillen approved the relevant passage of Archbold (2015), which stated that ‘[w]here non-conviction evidence is being relied on to establish propensity and the evidence is disputed, the jury must be directed not to rely on it unless they are sure of its truth’. The question for the Supreme Court was therefore whether the prosecution must prove such prior allegations beyond reasonable doubt before the jury can take them into account.
Lord Kerr clarified that the pertinent issue for the jury is whether propensity itself, not the individual prior allegations, has been established to the criminal standard. Of course, where the bad character evidence relates to a single earlier incident, establishing propensity cannot be separated from establishing that the incident occurred as alleged. If the jury is left with reasonable doubt about the latter, there must also be reasonable doubt about the former.
However, where multiple prior allegations fall to be considered, the jury should not conduct the artificial exercise of deciding whether each incident, in isolation from the others, has been proved to the criminal standard. As evidence of one incident may serve to corroborate another, all relevant evidence should be considered in the round in order to answer the single question of whether propensity has been established.
Finally, the court emphasised that propensity is ‘at most, an incidental issue’ and that alone it cannot establish the defendant’s guilt.
Crime and social media
The Crown Prosecution Service has published new guidance on the prosecution of offences committed via social media, effective from 10 October 2016. The guidance aims to aid prosecutors in deciding whether criminal charges should be pursued in relation to the following four specific categories of social media communication:
Threats of violence to the person or damage to property;
Communications specifically targeting an individual and constituting, for example, harassment or (cyber)stalking and controlling or coercive behaviour. Also included in this category is ‘sexting’ where this involves the sharing of illicit images of minors via social media;
Communications in breach of a court order or statutory prohibition; and
All other grossly offensive, indecent, obscene, or false communications which are caught by section 1 of the Malicious Communications Act 1988 or section 127 of the Communications Act 2003.
Additionally, the encouragement of the above offences can also be prosecuted under the Serious Crime Act 2007. Examples of online behaviour that constitute encouragement include ‘re-tweeting’ a grossly offensive communication, creating a derogatory hashtag, or enabling the targeting of an individual through publicising personal information online (‘doxxing’).
The starting point for prosecutors is the full code test in the Code for Crown Prosecutors. The new guidance clarifies that it will normally be in the public interest to prosecute offences falling within categories 1 to 3, provided that the requirement of evidential sufficiency is met. However, an exception to this general approach is noted in relation to consensual ‘sexting’ between two minors of a similar age who are in a relationship, where no exploitation or grooming is involved.
In contrast, the CPS advises that category 4 cases should be subject to a high evidential threshold. The guidance cites DPP v Collins  UKHL 40 and states that ‘just because the content expressed in the communication is in bad taste, controversial, or unpopular, and may cause offence to individuals or a specific community, this is not in itself sufficient reason to engage the criminal law’.
Furthermore, the guidance emphasises that a prosecution in many category 4 cases, where the evidential test is satisfied, may nevertheless not be in the public interest. Relevant factors here include the effect on the victim, whether there is a hate crime element to the communications, and the age of the suspect.
Finally, charging decisions must also be made in light of the right to freedom of expression, which is enshrined in article 10 of the European Convention on Human Rights and which may be restricted only where this is necessary and proportionate. The guidance usefully provides a non-exhaustive list of circumstances in which prosecution of a category 4 offence is unlikely to be necessary and proportionate, including, for example, where the offending communication has been quickly retracted or removed.
Given the millions of communications sent each day via social media, and the resulting potential for large-scale offending, this is clearly an area of concern for the CPS. While the anonymous nature of online offending will likely continue to make it difficult and costly to pursue prosecutions, it is to be hoped that the new guidance will assist prosecutors in prioritising the cases which merit their attention.
Celia Marr, pictured, is an associate and Jennifer Ross a trainee solicitor at Peters & Peters Solicitors