Fraud investigators must not bar lawyers from interviews
Witnesses need legal advice to answer sensitive questions, Jonathan Pickworth writes
It is nearly a year since the Serious Fraud Office published guidance on the conduct of “compelled” interviews under section 2 of the Criminal Justice Act 1987. And now is the time for the fraud investigators to admit that the process is not only prejudicial to individuals, but could also hinder their own inquiries. The SFO should reconsider its guidance and undertake a proper consultation with criminal defence lawyers.
The issues are serious because a failure to attend an interview, or to answer questions, without a reasonable excuse, constitutes a criminal offence and the guidance provides that anyone attending such an interview will not be entitled to legal representation as of right. The SFO may agree to permit a lawyer to attend in certain circumstances, but reserves a right to refuse. Attendance by a lawyer will not be considered unless and until certain undertakings have been given about a wide range of issues.
At the heart of the guidance is the SFO’s view that it is inappropriate for a suspect company’s lawyers to attend the compelled interviews of the company executives, who may be witnesses. Defence lawyers generally accept that principle. However, the SFO guidance went much further and implies a deep distrust of defence lawyers. It imposes onerous restrictions on the individuals who are being interviewed and who may, during the interview, have to grapple with questions that an experienced lawyer could need time to consider.
What happens if during an interview the witness considers that there may be a “reasonable excuse” for not answering a question? For example, how would a matter that is subject to legal professional privilege of the company be handled when the witness has no right to waive that privilege? How would the witness be able to seek advice if a lawyer were not present?
Those points are worrying enough, but there is a more sinister issue. 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. How would a lawyer advising that individual be able to ascertain what was said at the compelled interview if no lawyer attended it? There would be no record of that interview readily available, at least not one that is likely to be disclosed before charge. Disclosure could come too late for the individual to receive proper advice as to how to deal with an interview under caution, when the individual may make oral or written statements which will be tested at length in any trial process.
That the regime may be prejudicial to individuals is clear. But, ironically, it is also counterproductive for the SFO itself. After interviews and during an ongoing investigation the SFO often contacts witnesses to ask them to assist. If witnesses feel they have in effect been treated like suspects, but without the right to have a lawyer present or to remain silent, the SFO might find them reluctant to engage.
Jonathan Pickworth is a partner in the London office of White & Case, an international law firm based in New York