Serious Fraud Office restrictions on lawyers from accompanying witnesses being interviewed for fraud cases have come under fire from the Law Society. Chancery Lane today said that solicitors should not face 'inappropriate restrictions' on their work.
The Society has published guidance for solicitors who it says may be unfairly impacted by what is calls an attempt by the SFO to ‘limit’ their role.
Last year, the SFO published guidance on the role of solicitors who represent witnesses being interviewed under section 2 of the Criminal Justice Act 1987. Under the act, any person believed to have relevant information can be compelled ‘to answer questions or furnish information’.
But, according to the Society, the SFO is seeking to limit the action that can be taken by a solicitor when acting for interviewees. Lawyers will be permitted to attend section 2 interviews only if the SFO case controller believes that they 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.
Law Society president Robert Bourns said: ‘Witnesses in ‘section 2’ interviews are entitled to receive proper legal advice. This allows witnesses to understand their position and determine how best to respond. Our practice note addresses concerns about the professional conduct implications of the SFO’s guidance, and stresses the care that needs to be taken when giving undertakings.’
Louise Hodges, criminal litigation partner at Kingsley Napley LLP, said: ’It is important to remember section 2 interviews are not cosy fireside chats merely used for intelligence gathering. Those compelled to attend are at peril of prosecution and an error by someone being interviewed could result in them committing a criminal offence.'
’The Law Society’s intervention today is welcome in that it has reminded us that the SFO’s guidance does not override a lawyer’s professional obligations to the client. Any interview terms requested by the SFO should be explained to the client and if not considered appropriate or reasonable, a lawyer will now have more confidence in pushing back and negotiating with the SFO, or even giving consideration as to whether the client has a reasonable excuse not to comply with the request at all.'
Jonathan Pickworth, partner at global law firm White & Case, said the SFO’s guidance implies a ‘deep distrust’ of defence lawyers and imposes 'onerous restrictions on interviewees who may have to grapple with questions that a lawyer may need time to consider'.
'What happens, for example, if during an interview the witness considers that there may be a “reasonable excuse” for not answering a particular question? How will he or she be able to seek advice if a lawyer is not present to advise?' Pickworth said.
‘It is not unheard of for a person to be compelled to attend an interview as a witness, only later to become a suspect in the investigation. In such circumstances, how will the lawyer advising that individual once he has become a suspect, be able to ascertain what was said precisely at the compelled interview if the lawyer (or indeed any other lawyer) has not been able to attend that earlier interview?'
He added: 'The SFO should reconsider its guidance and undertake a proper consultation with the criminal defence community to ensure the impact on individuals has been properly considered.’