Walking the tightrope of compliance

On 6 June 2016, the Serious Fraud Office published new guidance on the conduct of interviews under section 2 of the Criminal Justice Act 1987. This was a clear attempt to limit the role of the interviewee's lawyer in the interview to little more than a note taker and source of 'pastoral support'. In response, defence lawyers universally expressed serious unease at the constraints being placed on their ability to effectively represent their clients.

That criticism was forthcoming from the community of defence practitioners is unsurprising. What is perhaps more significant is that the Law Society has decided to intervene in this debate. On 4 May 2017 the society published a practice note on representing clients at section 2 interviews. In doing so, Chancery Lane has come down firmly on the side of defence lawyers, saying that the SFO cannot 'dictate how that practitioner should conduct himself or herself in the performance of their professional role'.

The practice note considers the issues of professional conduct which arise in relation to the SFO guidance in three areas:

'¢ The conditions under which a lawyer will be permitted to attend a section 2 interview;

'¢ The undertakings sought by the SFO in advance of an interview; and

'¢ Conflicts of interest.

Perhaps the strongest statement comes in the Law Society's consideration of the first of these points. One of the most troubling aspects of the SFO guidance is that the lawyer must not do anything to 'undermine the free flow of full and truthful information', in order to be allowed to remain at the interview.

The practice note gets close to being openly critical of the SFO's stance with the following comments: 'You must not feel inhibited from intervening to provide advice'¦ You should bear in mind that section 2 (2) CJA 1987 enables the director to require the interviewee to 'answer questions or otherwise furnish information with respect to any matter relevant to the investigation'. This obligation should not be confused with, and does not imply, a requirement to be co-operative or helpful.'

Regarding the SFO's required undertakings, the practice note urges careful consideration by practitioners before agreeing them, and encourages lawyers to seek clarification of, and amendments to, the standard proposed undertakings. Many potential professional conduct issues are identified regarding each specific undertaking the SFO seeks.

Overall, the practice note is supportive of a combative approach by practitioners. This intervention by the Law Society will be welcomed by practitioners and embolden them to challenge irrelevant or unreasonable lines of questioning, or to negotiate amendments to the undertakings. However, the reality is that, despite Law Society support, nothing has changed.

R (Lord & others) v SFO [2015] EWHC 86 confirmed that there is no right to legal representation in a section 2 interview, and that the SFO has the power to exclude lawyers from such interviews in the event of a reasonably founded objection. This has manifestly shifted the power balance in section 2 interviews, and the Law Society's intervention has not altered this position.

Although lawyers may feel justified (or even obligated, given the Law Society's reminder that the SFO guidance does not override their SRA-imposed obligations) to take a more interventionist approach in section 2 interviews, there is no corresponding reason for the SFO to be any more accommodating to lawyers. If lawyers' increased assertiveness in support of their client leads to increased exclusions, it is the interviewee who loses out.

The Law Society recognises this risk, and offers little comfort: 'If you are excluded by the SFO in circumstances where you legitimately intervene during questioning, you should ensure that you have time to consult your client in private before leaving, in order to advise on the circumstances under which it would be proper not to answer questions.'

In other words, unless SFO questioning has strayed so far into the impermissible that the lawyer can confidently advise the client that they have a reasonable excuse for not answering questions '“ an extreme state of affairs that would require bold legal advice and an equally bold client '“ there is nothing they can do in the event of an unjustified exclusion.

While acting in the best interests of one's client may require regular intervention in an interview, it will rarely if ever be in the client's best interests for the lawyer to be excluded, and the client left to tackle an interview alone. Therefore, defence practitioners will still walk an extremely narrow tightrope of compliance with their professional obligations without infuriating the SFO sufficiently to be excluded from interview. Moreover, with other prosecution agencies beginning to emulate the SFO's approach (for example, HMRC in their conduct of interviews under section 62 SOCPA notices) defence lawyers will find themselves in this delicate situation more frequently.

In conclusion, unless the SFO demonstrates a concern for the desire of responsible defence lawyers to fulfil their professional obligations to their clients, the position of an interviewee is unlikely to be materially improved. Ultimately, it will take a well-aimed judicial review to redress the power imbalance.

Maia Cohen-Lask is an associate at Corker Binning @CorkerBinning