It is often taken for granted that a person interviewed by the authorities in the context of a criminal investigation has a right to be represented by a solicitor of their choice. But does such a right exist and, if it does, how far does it extend? This article examines the law in this area, following a recent case concerning legal representation in compelled interviews.

PACE interviews

There is no common law right of an accused person to have a solicitor present throughout a police interview. However, section 58 and code C of the Police and Criminal Evidence Act 1984 (PACE) confer on an arrested and detained person the right to consult with a solicitor at any time, and to have a solicitor present during interview.

Code C additionally makes clear that ‘when a detainee wants to pay for legal advice themselves… the Defence Solicitor Call Centre will contact a solicitor of their choice on their behalf’ [emphasis added]. This is echoed in the Notice of Rights and Entitlements, usually given to suspects upon detention at a police station.

Perhaps surprisingly, given the frequency with which the situation arises, PACE does not expressly confer the right to legal advice on suspects who attend interviews voluntarily. However, the relevant Home Office guidance recognises that voluntary attendees should be treated in the same way as those under arrest.

Compelled interviews

The position in relation to compelled interviews, such as those conducted by the Serious Fraud Office (SFO) under section 2(2) of the Criminal Justice Act 1987 (CJA), is somewhat different.  

Under section 2 of the CJA, and equivalent powers in statutes governing other investigating authorities, a person who is believed to have information relevant to an investigation can be compelled to attend an interview and answer questions. There is no right to silence, and failure to comply without reasonable excuse is a criminal offence. The provisions of PACE therefore do not apply.

In February, the High Court handed down its ruling in R (Lord and others) v SFO [2015] EWHC 865 (Admin), an application for leave to bring a judicial review against the SFO in connection with its ongoing investigation into bribery allegations against a multinational company. The SFO had sought to exclude the company’s lawyers from section 2 interviews conducted with three of its employees, where those employees wished to be represented at interview by the company’s lawyers. None of the individuals in question was a suspect in the investigation.

The relevant SFO policy, as contained in its Operational Handbook, states that defence legal advisers are permitted to attend section 2 interviews, provided – among other things – ‘their attendance does not unduly delay or prejudice the investigation’.  No right to legal representation is conferred by the CJA in relation to section 2 interviews, and the court did not agree with the applicants that such a right could be inferred.

The court considered that the SFO has a degree of flexibility in terms of excluding a solicitor from a compelled interview. It also held that the SFO does not have to establish actual prejudice before excluding a solicitor – it is entitled to take the view that there is a real risk of prejudice to the investigation.

It is worth considering briefly the reasons put forward on behalf of the applicants for the proposition that a right to legal representation in these circumstances should be inferred. The first was that interviewees might face issues of legal professional privilege; the second was that they might be vulnerable to prosecution for failing to provide information.

In relation to the first argument, it is difficult to see how issues of privilege would in themselves give rise to a right to legal representation on the part of the individual, given that any privilege in these circumstances is likely to belong to the company.  The second argument, which recognises a potential criminal risk for the individual concerned, is more convincing.

So in what circumstances can the SFO refuse to allow the presence of a particular solicitor at a section 2 interview? One of the arguments advanced by the SFO in its correspondence with the company was that the company’s lawyers might find themselves professionally obliged to report to the company on the interviews, in circumstances where the interviewees might not wish them to do so.

Although the court accepted that it was reasonable for the SFO to adopt this position, it is arguably less a matter of prejudice to the investigation and more a question of professional ethics for the solicitor. What it effectively suggests is that there is a conflict of interest between the corporate and individual clients of the firm, whereby the firm would be unable to comply with its disclosure obligations in respect of one client without breaching the confidentiality of the other.

As acknowledged by the court, and to some extent by the SFO, the question of whether a firm of solicitors can properly act for two clients is entirely a matter for that firm. This position is supported by code C of PACE, which states – albeit in the context of PACE interviews – that ‘any question of a conflict of interest is for the solicitor under their professional code of conduct’.

The SFO’s Operational Handbook refers to guidance issued by the Solicitors Regulation Authority on the presence of an employer’s solicitor at an employee interview, concluding that ‘in essence, the guidance states that it is not generally appropriate for an employer’s solicitor to be present at an employee interview’.

However, the SFO – and apparently the court – failed to draw an important distinction. The section of the SRA guidance in which this statement appears is entitled ‘Acting for the employer only’. It concerns situations where the solicitor attending the interview is instructed only by the company and must make this clear to the individual in question. In these circumstances, clearly the firm would have duties of confidentiality and disclosure only in respect of its corporate client and not in respect of the individual employee. This could raise ethical considerations, acknowledged in the SRA guidance, about taking unfair advantage of third parties.

The guidance also makes the point – adopted by the SFO – that the presence of company lawyers in these circumstances might inhibit the interviewee from making full disclosure. A lack of candour may affect the quality of the evidence obtained by the SFO and therefore must be capable of prejudicing the investigation.

Contrast this with a situation where the solicitor attending the interview is instructed to act for both the company and the relevant individual. Although the judgment is unclear and in some places contradictory, this appears to have been the situation in Lord.

As one would expect, the relevant section of the SRA guidance (‘Acting for employer and employee’) does not suggest that solicitors acting for both employer and employee should not attend the interviews of their individual clients. It simply states that very careful consideration should be given before deciding whether to accept instructions from both employer and employee, due to the risk of a conflict of interests.

It is therefore nothing more than a reminder to solicitors of the important considerations that apply when deciding on the appropriateness of acting for more than one client in a matter. As stated above, ethical questions around potential conflicts should be entirely a matter for solicitors under the SRA Code of Conduct.

The argument about disclosure risk is also difficult to reconcile with the court’s statement that there is ‘no obvious bar’ on the interviewee reporting to the company’s lawyers on the contents of the interview. If it is accepted that the SFO cannot impose confidentiality on section 2 interviewees, it is difficult to see how the disclosure of the same information by company lawyers to their corporate client can be deemed prejudicial to the investigation.

Given the significance of this issue for investigation lawyers, it is unfortunate that the Lord judgment – albeit only a permission application – does not set out the position more clearly.  What is clear, however, is that defence solicitors have not heard the end of the matter.

The SFO – buoyed by a rare success in the courts – is likely to continue to seek to exclude company lawyers from section 2 interviews, citing a risk of prejudice to their investigations even where there is no suggestion that the solicitors have failed to comply with their professional obligations.

Elly Proudlock, WilmerHale