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What is the SFO?
The Serious Fraud Office (“SFO”) is a government body with jurisdiction to investigate and prosecute serious and complex fraud in England & Wales, and Northern Ireland. They focus on a select number of large-scale white collar crime cases. It is the lead law enforcement agency on bribery and corruption matters.
To carry out the functions of investigation and prosecuting serious and complex fraud, the SFO has been given powers to compel individuals to produce documents, answer questions or furnish information if the SFO believes that the individual has relevant information relating to their investigation. These powers are unique to the SFO and are governed by section 2 of the Criminal Justice Act 1987.
What is a section 2 interview?
Section 2 interviews are common investigative techniques deployed by the SFO to compel an individual to answer their questions. They must answer the SFO’s questions unless they have a reasonable excuse not to do so.
Before a section 2 interview can take place, the SFO must identify an individual who they believe has knowledge relevant to their criminal investigation. As a public body, the SFO must also act in compliance with the Human Rights Act 1998; therefore, any section 2 interviews must be necessary, reasonable and proportionate to the individual’s right to private life. The SFO will issue a notice for a section 2 interview which will contain information on where and when the individual should attend to answer their questions. An accompanying guidance will be included with the notice and can be found here.
As the interview is compelled, the answers provided during the interview cannot be used against them except to prosecute the individual if their answers were recklessly or deliberately false or misleading. If the individual refuses to attend the interview, or to answer the SFO’s questions, without reasonable excuse, they can be prosecuted and face a fine and/or imprisonment of up to 6 months if convicted.
What happens at a section 2 interview?
The interview may take place at the SFO’s premises. It is usually conducted by 2 members of the SFO. These members could include accountants, investigators, lawyers of varying seniority within the SFO. The interview will be recorded on a disk with the SFO’s recording equipment.
The individual interviewed will get refreshment breaks and private consultations with their lawyers. The length of the interview may last several hours, or a few days. The SFO will ask questions which they believe to be relevant to their investigation and within the scope of the individual’s knowledge. The individual can ask for clarification if they do not understand the question asked.
A lawyer can accompany the individual throughout the interview, unless the SFO can show that the attendance of that lawyer will result in delay. A second lawyer can be present for the purposes of taking notes of the interview.
What happens after the section 2 interview?
Depending on the individual’s answers, the SFO may approach them to be a witness for the prosecution.
The section 2 interview may also be disclosed to the Defendants at a trial.
Do I need a lawyer for a section 2 interview?
Having a lawyer represent you at a section 2 interview will ensure that the SFO has issued the right notice. It is important for the notice to be correct, so that you do not breach any confidentiality obligations you may have when you answer the SFO’s questions, e.g. with your employer or banking confidentiality. A lawyer can also advise you if your answers to the questions posed by the SFO are protected by legal professional privilege.
The SFO states that they will consider the provisions set out in the Police and Criminal Evidence Act and PACE codes, but acknowledges these provisions have no legal force in section 2 interviews. Therefore, it is important to obtain legal representation to ensure that the interview has been conducted properly and fairly.
Can I discuss my section 2 interview with others?
The SFO’s guidance accompanying a section 2 notice asks that the person interviewed do not disclose the interview to anyone except for their lawyers. This includes past and present employers and colleagues who the SFO may wish to speak to separately.
You should remember that if you have been issued with a section 2 notice, the SFO is conducting a ‘live’ criminal investigation. If you discuss or disclose your interview with others, this may prejudice a criminal investigation and amount to a criminal offence.
How can Twelve Tabulae help you in a section 2 interview?
Our lawyers have considerable experience in section 2 interviews.
Co-Founder and Senior Solicitor, Simon Caltagirone has invaluable experience in this area. He is currently instructed in a multi-jurisdictional SFO investigation, advising a corporate body on the strategy of corresponding civil proceedings.
As a subject expert in the use of the SFO’s section 2 powers, Senior Solicitor Cheryl Low provided regular training to investigators and lawyers at the SFO.
We can liaise with the SFO to obtain disclosure prior to your section 2 interview, clarify the scope of their investigation and necessity of the interview. Above all, we will ensure that the SFO treats you properly and fairly throughout the interview process and protect your rights.
Co-Founder and Senior Solicitor, Simon Caltagirone is an industry-leading corporate disputes lawyer, whose advice is trusted by listed companies and high-net-worth individuals alike.