If you are called in for a Section 2 interview by the Serious Fraud Office (SFO), it’s important to understand the process and your rights. These interviews are typically with individuals who are not considered suspects but are seen as “potential witnesses” in an investigation. However, as B P Collins’ criminal team advises, if the information you provide is found to be misleading or false, you could face criminal charges and failure to attend these interviews could also result in penalties.
Here’s what you need to know about the SFO interview process, and why it’s important for you, as a director or employee, to be prepared:
What happens in a Section 2 interview?
A Section 2 interview is part of a SFO investigation. The person being interviewed is usually considered a potential witness—meaning they may have information relevant to an investigation. While these interviews aren’t about accusing you of wrongdoing, they are serious, and your cooperation is expected.
You must attend the interview, and it’s crucial that you are honest and provide accurate information. If you lie or withhold information, that could lead to criminal charges. The SFO’s guidance stresses the importance of full cooperation in these interviews to support the investigation.
Legal representation: What’s allowed?
One key difference between SFO Section 2 interviews and other interviews (such as those under caution by the police) is the role of your lawyer.
SFO Interviews: In these interviews, your lawyer may not always be allowed to attend. If the lawyer represents anyone else involved in the investigation, or has a conflict of interest, they may be excluded. For example, if your employer is under investigation, the lawyer may not be able to attend to avoid any conflict of interest.
However, if your lawyer is allowed to attend, they must not interfere with the questioning. They can advise you on issues related to Legal Professional Privilege (LPP)—for instance, if something you’re asked could harm your legal position—but they cannot interrupt or obstruct the flow of the interview.
If your lawyer oversteps their role or obstructs the interview, they may be asked to leave.
Police Interviews: In contrast, if you’re arrested or questioned by the police under caution (known as a PACE interview), you are automatically entitled to have a lawyer present. This legal safeguard ensures that you have someone to protect your rights during the process. It’s a significant difference between police interviews and SFO interviews.
The High Court ruling: how it affects you
The SFO’s decision to exclude lawyers from Section 2 interviews was challenged in court by two individuals, Lords Reynolds and Taylor, who argued that there should be a right to have a solicitor present. However, the High Court ruled in favour of the SFO’s policy, stating that the SFO’s approach was within its legal rights. The Court found that the reasons for excluding solicitors were reasonable and in line with the SFO’s investigative goals.
What does this mean for you? If you are called to a Section 2 interview, you may not have the automatic right to have a solicitor with you. This can be particularly concerning if you are a director or senior employee, as your role within the company might expose you to more complex issues during questioning.
How does this impact corporate employees and directors?
As a director or senior employee, the way the SFO conducts interviews can significantly impact your involvement in an investigation. The absence of legal representation during Section 2 interviews removes some of the safeguards you might expect in a police interview. You may be required to answer questions without the immediate support of a lawyer.
While the SFO is focused on gathering information, their expectation of full cooperation can feel intimidating, especially if you are concerned about potential consequences for your company or your position. The SFO can investigate serious corporate wrongdoing, including fraud, bribery, and financial misconduct, which might involve sensitive company matters.
A key risk is that you might inadvertently reveal information that could harm your position, or the company’s, without the immediate counsel of a lawyer to guide you through the interview.
Why should you be concerned?
It’s understandable if you are thinking, “Why does this matter?” or “What’s the risk if I cooperate?”
Here’s why it matters:
Pressure and consequences: The SFO takes cooperation very seriously. If you don’t fully comply or you mislead them (even unintentionally), you could face criminal charges.
The impact on your company: As a director or senior employee, your answers during an interview could affect the investigation and the reputation of your company. You may not be a suspect yourself, but your testimony could impact the direction of the investigation.
Changing behaviour of the SFO: Anecdotal reports suggest that SFO caseworkers have become more assertive and even confrontational in recent years. Some lawyers have reported instances where SFO investigators have attempted to advise clients about their case in the absence of legal representation. This highlights the need to be cautious when engaging with SFO investigators.
Could there be future legal challenges?
Even though the High Court upheld the SFO’s policy of excluding lawyers from Section 2 interviews, the issue may not be fully settled. As investigations become more complex, there could be future legal challenges regarding whether this policy infringes on your right to a fair process.
It’s possible that courts may reassess whether the absence of legal representation during such interviews undermines the fairness of the investigation process. Future legal developments could lead to changes in how the SFO handles interviews, particularly when they involve senior executives or directors who may have a higher stake in the investigation.
What should you do if you are called for an SFO interview?
If you, as a director or employee, are called for a Section 2 interview by the SFO, it’s crucial to:
Understand your legal position: While you may not have the right to have a solicitor present, make sure you understand the potential risks and the nature of the interview.
Seek legal advice early: Even if your lawyer can’t attend the interview, you can still seek advice before the interview takes place. It’s critical to understand the implications of the questions being asked and your responsibilities.
Cooperate fully, but cautiously: While full cooperation with the investigation is important, be mindful that anything you say could be used in the investigation, so carefully consider your answers.
SFO Section 2 interviews can be a daunting process, particularly for directors and employees who may not be fully aware of their rights and the investigative process. The exclusion of lawyers from these interviews means that you may be left to navigate complex legal questions on your own, without the safety net that a lawyer typically provides.
Being informed, prepared, and aware of the implications of the SFO’s policies can help you better manage the situation should you be called for an interview. If you find yourself in this position, it’s essential to seek legal advice early and to understand both your legal rights and the responsibilities that come with cooperating with the investigation.
For further information and advice, please contact B P Collins’ criminal team at enquiries@bpcollins.co.uk or call 01753 889995.
