Criminal Fraud: Section 2 interviews with the SFO – what you need to know

Section 2 of the Criminal Justice 1987 ('CJA') empowers the Director of the Serious Fraud Office (SFO) to require a person to attend an interview and/or produce documents upon service of a requisite notice so as to provide information relevant to his investigation.

Do I need to go?

Yes you do. Failure to co-operate is a criminal offence triable summarily. Provision of false information is a more serious offence which can be tried on indictment.

 Can I answer ‘no comment’?

No you cannot. This is not an interview under the Police and Criminal Evidence Act 1984 ('PACE'). The crucial distinction is that anything that is said to the SFO in an interview under section 2 of the CJA cannot be used in evidence against the interviewee in a prosecution arising out of that investigation. This is because it is contrary to Article 6 of the European Convention on Human Rights to compel a suspect to answer questions. If the SFO wish to question a suspect and rely on what is said (or not said) they must do so under caution pursuant to PACE 1984.

 Am I entitled to be represented?

Yes, but subject to approval by the SFO which issued new guidance on this subject on 6 June 2016. This guidance suggests approval will not be given to any representative unless they are suitably qualified. Likewise, the representative will be required to sign an undertaking which confirms that they have not or do not advise a suspect in the investigation and that confidential information and material disclosed in the interview will not be shared with any other party. Controversially, the guidance also suggests that there is a limit to the scope of the advice around the question whether legal professional privilege applies to the disclosure of any information. Section 2 actually provides for the requirement to give information 'relevant' to an investigation save for that which is confidential or privileged. So the new guidance appears to attempt to restrict the role of the lawyer in such interviews. A link to the guidance can be found here.

 Can I be asked to attend more than once?

 Yes it is common for parties to be re-interviewed or requested to supply further documentation.

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