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Lawyers are being Excluded from representing Clients in Section 2 Interviews (30 September 2016)

Date: 30/09/2016
Duncan Lewis, Legal News Solicitors, Lawyers are being Excluded from representing Clients in Section 2 Interviews

On 6 June 2016 the Serious Fraud Office adopted new internal guidance on the process for inviting and handling requests for individuals interviewed under Section 2 of the Criminal Justice Act 1987 to be accompanied by a lawyer.

Section 2 interviews are those where the SFO have indicated that the person called is not being viewed as a potential suspect but a ‘potential witness’, unless what they say is misleading or untrue. Failure to attend or making an untrue statement is a criminal offence.

As stated by the SFO’s operational guidance:

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.

The Police and Criminal Evidence Act 1984 Interviews under Caution
In contrast with the policy above, the Police and Criminal Evidence Act 1984, in regulating interviews under caution, states a different approach taken when someone is arrested and interviewed by the police. This primary legislation is in place to ensure that any person arrested or even voluntarily questioned by the police under caution for a criminal offence has access to a solicitor free of charge at any time of day and on any day of the week. The historic reason why lawyers were allowed into police stations was to prevent the abuse that proliferated and culminated in miscarriages of justice of those such as the Birmingham 6 and Guildford 4. Lawyers act as a check and balance against the potential abuses that could occur.

SFO policy to exclude lawyers in s2 interviews was challenged in The High Court in R (on the application of Lords Reynolds and Taylor) v Director of the Serious Fraud Office [2015] EWHC 865 (Admin). The claimants, who were subject to notices served by the defendant Serious Fraud Office under the Criminal Justice Act 1987 s.2, sought permission to seek judicial review of the SFO's refusal to allow a solicitor of their choice to be present at their interviews. The application was refused.
The argument from the claimants suggested that there was a common law right to have a solicitor present but not only could the justices infer such a right but more significantly the court held that the SFO had acted in accordance with its policy. The reasons that were given for applying the policy were reasonable and proper ones.

What are the implications of this judgment in practice?
The SFO’s questioning of a ‘potential witness’ is conducted in exactly the same way as a PACE interview but here the burden is on the ‘potential witness’ to comply with the policy, in terms of attendance. The SFO position is that they are to investigate a case and need full cooperation. The lawyer who interjects and seeks to do what in his clients’ best interest will be excluded.
In these terms, the SFO policy seeks to exclude the safeguards (a lawyer in interview) that a PACE interview enables.
There are those that ‘so what’ but anecdotally the manner and tone of the SFO towards solicitors has changed recently. It has become more indignant and when those same case workers interview suspects under PACE that practice has followed them, leading to behaviour such as approaching clients in the absence of solicitors and attempting to give them advice on the prospects of their case.

Could there be future Challenges?
There may be challenges to the approach adopted by the SFO from lawyers who believe that their role is more than ‘pastoral’ or a note taker but it remains to be seen how the policy develops in practice. If a solicitor represents just one client and is then excluded under this policy, depending on the circumstances may be open to challenge.

It may be that in the instant case the claimants positon was too narrowly defined, namely that the solicitors were entitled to attend as a result of common law doctrine.
It should be remembered that this was a challenge on SFO Policy. We have legislation to protect suspects at the police station and allow them the right to a solicitor. How can that policy and the legislation be reconciled is the question that faces practitioners in the future.

About the author: Rubin Italia

Rubin Italia is a Director of Crime & Fraud at Duncan Lewis. Recognised as a leading lawyer in Crime in the 2014 edition of Chambers UK, Rubin specialises in criminal defence work in a broad range of offences from minor road traffic cases to murder, rape, extradition and serious complex crime, including large-scale drug conspiracies and complex immigration-related crimes. Rubin has a significant practice defending clients with mental health problems with insanity defence cases; he continues to represent a number of clients at Broadmoor. His fraud practice includes defending cases investigated and prosecuted by the National Crime Agency (previously SOCA), HMRC, the Serious Fraud Office, UK Borders Agency, Economic Crime Units, the DWP, local authorities and Trading Standards. He has a niche focus in immigration related fraud, ‘cuckoo smurfing’ money laundering cases, high-value confiscation proceedings and benefit/tax fraud defence work. Rubin deals with full range of criminal offences from police station representation up to Crown Court trials, appeals and judicial review.

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