On 6 June 2016 the SFO published new rules for lawyers attending section 2 interviews.
The guidance introduces a formal process whereby lawyers must request in writing advance permission for their attendance, justifying the reason for their presence; providing an undertaking in specified terms concerning representation and disclosure; and acknowledging the parameters of their role.
Many claim the guidance ignores the legal and ethical duties by which lawyers are already bound and, fundamentally, places unnecessary and excessive obligations on lawyers representing those providing compelled testimony in SFO investigations.
Perhaps of most significance is the risk that individuals interviewed under section 2 may be deterred from cooperating with the SFO in the later stages of investigations. Taking part in a section 2 interview is daunting; many interviewees will want their lawyer present to guide them through the process. The SFO’s new policy not only suggests a level of mistrust in lawyers, but also potentially alienates witnesses on whom the SFO may wish to rely.