SFO compelled interviews – the right to be legally represented

This article considers the recent decision in The Queen on the Application of Jason Lord, Paul Reynolds, Justin Mayger v Director of the Serious Fraud Office [2015] EWHC 865 (Admin). It looks at the High Court’s ruling to refuse permission to judicially review the decision of the Serious Fraud Office to prevent three senior employees from being accompanied by the external legal representative of their employer at a section 2 compelled interview.


 

The High Court has refused permission to judicially review the decision of the Serious Fraud Office (“SFO“) to refuse to permit three senior employees to be accompanied by the external legal representative of their employer at a s.2 compelled interview.  Whether the SFO is willing to permit a legal representative to attend a compelled interview is dependent on whether the proposed legal representative’s presence may be considered to be potentially prejudicial to the SFO’s investigation.

Facts and outcome of proceedings

GlaxoSmithKline plc (“GSK“) has been and is the subject of a number of investigations in multiple jurisdictions with respect to alleged bribery and corruption. On 27 May 2014 the SFO announced that it had opened a criminal investigation into the commercial practices of GSK and its subsidiaries.  As part of its investigation the SFO served notices on three senior individuals within GSK to attend compelled interviews pursuant to s. 2 Criminal Justice Act 1987. Section 2 provides the Director of the SFO with certain investigatory powers, including the power to compel an individual to attend an interview and answer questions.

There was no suggestion that these individuals were suspects: they were being interviewed as witnesses in order to further the SFO’s investigation. The three individuals in question confirmed their attendance and advised the SFO that they wished to be accompanied by a legal representative. Each individual had retained the same law firm representing GSK with respect to the investigation.  The SFO initially opposed the three individuals being accompanied by any legal representative. However, during the course of correspondence the SFO agreed to allow the individuals to be accompanied by legal representatives, but refused to allow this to be the legal representatives of GSK.

The three individuals brought an application for permission to judicially review the decision of the SFO on the following grounds: (1) the SFO had breached the common law right of an individual to be accompanied by a legal representative of his/her choice; (2) the SFO had acted contrary too its own policy; and (3) the decision was irrational.

In refusing permission the High Court found that the grounds were unarguable:

  • Although there is a general right at common law to consult privately with a solicitor when detained in custody, there is no common law right to be accompanied by a solicitor at a s.2 interview. Nothing in the Act conferred any such right upon an interviewee and it would be for Parliament to create such a right.
  • The SFO’s policy, as evidenced in its “Operational Handbook”, is to permit the attendance of legal representatives at s. 2 interviews on the condition that their attendance does not unduly delay or in any way prejudice the investigation and the legal representative understands their role, which is different to that of a PACE interview. The written policy of the SFO goes further and indicates that it is not always appropriate to allow solicitors acting for companies to be present when an employee is being interviewed as there may be a conflict of interests between the employer and the employee.  The SFO was entitled to take the view that there was a real risk of its investigation being prejudiced by the presence of the legal representative. Such prejudice included the risk that the legal representative would be under a professional obligation to report back to the employer and, as a result, may interfere with the candour in which the interviews are normally conducted, hindering the SFO’s chances of obtaining relevant information. The SFO did not have to prove that an actual conflict existed.
  • However, there was no restriction on the interviewees seeking the advice of GSK’s legal representatives before the interviews and reporting back to GSK and its legal representatives after the interview. Further the individuals were free to retain and instruct any other solicitors to act for them with respect to the interview.

The Court also confirmed that arguments invoking the European Convention of Human Rights did not take the matter further in circumstances where the interviewee being interviewed pursuant to s. 2 has not been arrested or detained.

Comment

 

The Court was careful to indicate that its findings were only with respect to the circumstances of this particular case. The SFO’s objection to the presence of a legal representative will, at least according to its own written policy, need to be considered on a case by case basis. The SFO’s “Operational Handbook” is currently under revision, and it will be interesting to see how the SFO, and indeed other investigators, approach this area going forward.

Abdulali Jiwaji and Rory Spillman of Signature Litigation.

 


 

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