Section 2 Criminal Justice Act 1987 grants the Serious Fraud Office special compulsory powers to require any bank's compliance (or other) officer to provide documents and answer relevant questions, including ones about confidential matters. The SFO has recently cut down the interviewee's rights to be accompanied by a lawyer.

It is a crime under s2(13) to fail without reasonable excuse to provide answers and a crime under s2(14) knowingly or recklessly to provide an answer which is false or misleading "in a material particular."

On 6 June 2016 the SFO came up with new guidelines to govern the process for inviting and handling requests for individuals interviewed under section 2 to be accompanied by legal representatives. The guidelines state that, from now on, such a representative will only be allowed to attend the interview if the SFO case controller thinks it likely that he will "assist the purpose" of the interview and/or investigation, or that he will provide essential help to the interviewee by way of legal advice or pastoral support. The meaning of the word 'essential' is never explained; nor is the exact meaning of 'legal advice.' The only reference to 'legal advice' in the document is the SFO's statement that the lawyer "may, if they are able to, advise the interviewee in the event that any matter of legal professional privilege (LPP) arises." Such advice fills a very narrow slot in the legal jigsaw and by mentioning it in this way the SFO might be indicating that it will allow each lawyer very little leeway.

Not just any provider of legal advice will be allowed, either; from this moment forth, the SFO will only tolerate the presence of someone of whom the Government formally approves, i.e. a practising solicitor or barrister or chartered legal executive.

If the relevant SFO case controller agrees to it, it might be possible in exceptional circumstances for the interviewee to take someone else along, but only for the purpose of taking notes. Nobody knows the basis on which the case controller might say no to this, although the text leaves it open for him to do so on a whim.

Beat the clock!

There are now time limits on any decision that a 'section 2' interviewee can take to bring a lawyer along. The SFO's "guidance for lawyers" states: "If you believe that the presence of a particular lawyer in the interview will assist the purpose of the interview and/or investigation, or that the lawyer concerned will provide essential assistance to the interviewee by way of legal advice or pastoral support, and the interviewee wishes to have a lawyer present, you must serve on the SFO within 7 days prior to the date of the interview, or 3 days after the date of this letter, whichever is the later, the name of the particular lawyer and the reasons why their presence in the interview 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."

Stringent undertakings that exclude many lawyers

The lawyer must also submit written promises to the SFO in the name of his firm that:

• the firm does not represent any individual or legal person who is a suspect in the investigation (meaning that no suspect can be accompanied by his lawyer and also that any compliance officer who discovers that his law firm is also representing a suspect must then go to the trouble of finding another firm in a hurry);
• all pre-disclosure documents and documents provided during the interview that his firm retains will be kept a secret from anyone else except the client;
• none of these relevant documents will be so much as discussed with anyone other than the client unless the SFO says so in writing;
• the relevant documents will not be copied; and
• the lawyer can keep a note of the interview but cannot record it or even transcribe it.

The firm will be bound by all this until the SFO tells it that the investigation or prosecution is over. It must ensure that systems are deployed to ensure the compliance, monitoring and enforcement of these undertakings.

Additionally, the law firm must send the SFO written acknowledgement of the parameters of the role of the lawyer in the interview and acknowledge the fact that any breach of the parameters is likely to lead to the exclusion of the lawyer, without notice.

Generally speaking, no more than one lawyer will be allowed in the interview, unless expressly agreed by the SFO. The reason for this new rule is anyone's guess.

Lawyers can help

In many investigations, the interviewer and interviewee might ramble off the topic, or perhaps misunderstand one another. In such a case, one might expect a lawyer to help keep the interview on an even keel. The legal profession is also bristling at the implied insult to its ability to manage conflicts of interest contained in the SFO's rule against an interviewee being represented by the same firm as a suspect. The so-called 'operational guidance' document does not say how the interviewee might find out whether this is happening, or how the law firm in question might pinpoint the moment when it realises that one of its clients is a suspect. Some believe that this situation is likely to arise rarely; in cases where 'directors and officers' insurance applies, however, it must surely be likely that the same law firm serves the whole bank.

A new era of co-operation?

We are entering an era in which the SFO feels less co-operative than ever towards defence lawyers, whom it now seems to view with the utmost suspicion, while demanding more co-operation (some of it arguably illegal) than ever from the banks and other firms under investigation.