We have all seen enough police shows to be familiar with the mantra that you are entitled to have a lawyer present, along with the warning that:
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.
What you may not know is this warning and the rights that underpin it apply to those suspected of criminal offences but not to those who are being interviewed in connection with them.
In June 2016 The Serious Fraud Office (SFO) issued operational guidance on the presence of interviewees’ lawyers at interview. Under Section 2 of the Criminal Justice Act (from which the SFO’s powers derive) the guidance makes clear that the purpose of interview is to “obtain full and truthful answers to the questions asked.” It goes on to make clear that it is only if the case controller
believes it likely that [a lawyer] will assist the purpose of the interview and/or investigation or that they will provide essential assistance to the interviewee by way of legal advice or pastoral support
that a lawyer will be permitted to attend.
As a prospective interviewee you have to serve notice on the SFO within 7 days prior to the date of the interview that you wish to have a lawyer present. You also have to identify the lawyer and explain why they will assist the purpose of the interview or provide essential assistance to you. The guidance goes on to provide that, even if allowed to be present, the lawyer “must do nothing to undermine the free flow of full and truthful information which the interviewee, by law, is required to give.” The case controller has the power to exclude from the interview a lawyer who does not follow this precept.
The guidance also provides that unless the chosen lawyer is able to demonstrate that he or she is
not retained by or otherwise owes a duty of disclosure to any other person (natural or legal) who may come under suspicion during the course of the investigation, including the interviewee’s employer they are unlikely to be allowed to attend the interview
The justifications given for this stance are that
- such a lawyer may prejudice the investigation as a result of duties of disclosure owed to third parties and
- he or she may reduce the candour with which the interviewee may answer the questions.
This is interesting. I have blogged before about the importance of directors and other executives understanding that the company’s lawyer only ever acts for the company and not for the individual. The SFO are looking at this same principle in operation from its perspective. It is not concerned about ensuring that the individual has access to his or her own legal advice. Instead it wishes to ensure that the investigation is not impaired.
Where does this leave you if you are the individual? How, for example, do you deal with information confidential to your employer? What if you are concerned that the line of questioning places you under suspicion even though the SFO have not identified you as a suspect?
What about other investigatory authorities?
The SFO guidance applies only to interviews conducted by that authority. The so-called PACE or Police And Criminal Evidence Act 1984 warning quoted at the top of this blog only applies to criminal investigations. Interesting questions arise as to the attitude of regulators such as the Financial Conduct Authority (FCA) to interviews of witnesses. These investigations are for the most part not criminal.
To the best of my knowledge no guidance of the type issued by the SFO has been issued by the FCA or other regulators. Anecdotal evidence suggests, though, that the FCA does from time to time request that individuals attend for interview without their employer’s lawyer present.
Am I covered?
As we know from the findings of our recent D&O survey conducted with Allen &Overy, regulatory investigations are the number-one concern for directors. They seek assurance that the legal costs associated with their representation are covered. Here’s a checklist of points to consider:
- Does my indemnity from the company and/or insurance cover me for separate legal representation in the absence of a claim against me (or an investigation in which I am a suspect)?
- If so, in what circumstances, on what terms, at whose discretion and in what amount?
- Am I still covered on the same terms after I have left the company and if so for how long?
It’s always best to know the answers to these questions before you need them.