Witnesses adrift without a paddle
New SFO interview guidance flies in the face of the right to legal representation, writes Brian Swan
In June, the Serious Fraud Office (SFO) issued new guidance for interviews conducted under section 2
of the Criminal Justice Act, which makes moves to exclude interviewees' lawyers unless the SFO deems that they will provide 'essential assistance
by way of legal advice or pastoral support'. The guidance in no way quantifies 'essential' and leaves the door open to rampant abuse of a central tenant of the criminal justice system - the right to legal representation.
Section 2 interviewees
are deprived of the ability to refuse to answer a question, unless providing the information would break legal professional privilege (LPP)
or in exceptional circumstances. Given the criminal liability that can be placed on an individual in these interviews, denying any interviewee legal representation would appear controversial.
The key change in procedure means that lawyers must prove it is 'likely that they will assist the purpose of the interview' or that they will provide 'essential assistance'. Lawyers now have
to provide a written request to the SFO's head of division, who must agree with the reasoning for why attendance would be desirable for the investigation.
Mechanisms also now exist for the SFO's case controller to expel legal representation from the interview, with no method of appeal. Legal representatives may only advise on LPP, and must avoid doing 'anything
to undermine the free flow of information' in the interview.
A 'perceived infraction' or 'obstruction of the interview process generally' is enough
to see witnesses adrift without legal advice.
Interviewees, then, are presented with a situation
in which, even if permitted to bring a legal representative, they can be excluded at a moment's notice. Essentially, witnesses will have to choose between a hamstrung representative or one that could be excluded from the interview if perceived to have interfered.
The confrontational nature
of this new guidance highlights a mistrust of defence lawyers.
The SFO has included a proviso that lawyers are 'unlikely to be allowed to attend the interview' if they are unable to show that they do not also represent or have a duty of disclosure to a suspect in the investigation.
The SFO is assuming that, where one firm represents suspects and witnesses, no processes exist to prevent a conflict of interest occurring. In a more sinister interpretation, it suggests that the agency
feels that firms may not have the ethical integrity to avoid these conflicts.
The SFO is eschewing a cooperative approach to investigations, making it unlikely that interviewees
will have sympathy for its
work. Indeed, if an individual feels the agency has unfairly
denied them access to legal representation, it is not unreasonable to expect them
to refuse to sign the proffered witness statement or to testify at trial. There is potential for
this new guidance to backfire on the SFO, directly hampering investigations by reducing cooperation with witnesses
and by reducing dialogue
with firms involved.