Section 2 interviews are a tool which the SFO deploy in criminal investigations to compel persons to answer questions or otherwise provide information which may be relevant to the SFO investigation. Alongside the use of this power, the SFO has published guidance for criminal defence lawyers who act for individuals subject to a section 2 notice. This guidance was updated on 28 February 2019 to address what white collar crime lawyers have, for some time, seen as a significant failing.
Since its last revision in June 2016 the guidance has stated that a lawyer will be allowed to attend if the SFO believes it likely they 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. This remains the same; what has changed is the number of lawyers permitted to assist the interviewee.
The SFO's June 2016 version of the guidance provided that, generally, no more than one lawyer will be allowed in the interview unless expressly agreed by the SFO. The updated guidelines now permit an additional lawyer to be present solely for the purpose of taking a note, and do not require the SFO to expressly agree to this second defence lawyer.
Whilst the previous guidance gave the SFO discretion to permit an additional lawyer this was only exercised very rarely. This meant that there was usually only a sole lawyer in the interview to take notes and advise the client simultaneously. It is not easy to do both, even for seasoned defence lawyers and despite protestations from the white collar crime profession the SFO was unwilling to exercise its discretion.
This common sense approach is a welcome change; it may also be a sign that we will see further common sense changes in the future under Lisa Osofsky.