18/08/16

Serious Fraud Office | Section 2 Interviews

Share

What is a Section 2 Interview?

Section 2 of the Criminal Justice Act 1987 gives powers to the SFO to serve a Notice in writing requiring a person whose affairs are to be investigated or, any other person whom it is believed has relevant information, to answer questions or furnish information with respect to any matter relevant to the investigation.

Therefore, anyone who is served with a Section 2 Notice is required to attend an interview.

The interview is not conducted under caution but the interviewee is required to answer all questions on any matters relevant to the investigation fully and accurately.

Should the interviewee fail to do so without a reasonable excuse or makes a statement recklessly or deliberately known to be false or misleading, they may be committing a criminal offence.

However, safeguards have been put in place which state that answers given under compulsion during the interview may not be used in evidence against you, unless:

  1. You are prosecuted for making a statement that is false or misleading; or
  2. You are prosecuted for some other offence and, when giving evidence, you make a statement which is inconsistent with a statement made during the interview.

The new SFO guidance for Section 2 Interviews

In June 2016 the SFO published new guidance in relation to Section 2 interviews.

The main effect of the guidance dictates when lawyers can be present to assist clients during Section 2 interviews.

Since June, lawyers will only be permitted to attend Section 2 interviews if the SFO case controller believes that such attendance will assist the purpose of the interview and / or investigation, or provide essential assistance to the interviewee by way of ‘legal advice or pastoral support’.

Should a lawyer request to attend an interview for their client, a Notice has to be served upon the SFO within strict time limits setting out reasons why their presence is required, acknowledging the parameters of the role of the lawyer and providing undertakings binding the lawyer’s firm.

Importantly, the firm must state that they do not represent any corporate or individual who is a suspect in the investigation.

Should the SFO feel that the parameters of the lawyer’s role are not being observed, the lawyer can be excluded from the interview without notice.

Should permission be granted, only one lawyer will be allowed to be present.

Therefore, there is no longer a presumption that a legal representative can be present; instead, a burden has been placed upon the interviewee and the lawyer to justify the lawyer’s attendance.

Even if such justification is provided, it is still in the discretion of the SFO as to whether or not to allow the lawyer to take part in the interview process.

How it may apply to you | Need help with a SFO case

If you are a body corporate being investigated and the SFO serve a Section 2 notice on one or more of your employees, case law is now established that company lawyers can no longer also represent your employees.

Therefore, employees will need to find separate representation.

If you are an individual who has been served with a Section 2 notice you will be best advised to have legal representation to protect your interests.

How can we help | Solicitors defending SFO prosecutions

Kangs have extensive experience in dealing with SFO investigations. Our skilled team is led by Hamraj Kang who has over 20 years’ experience in defending serious fraud cases.

Should you receive a Section 2 notice, you should seek legal advice immediately in order that the strict time frames under the new guidance can be complied with.

Our experienced team of fraud practitioners will be pleased to advise you and can be contacted using the below details.

Serious Fraud, Tax & HMRC
In a previous article titled ‘Umbrella Company Fraud’, we explained the general operation of ‘umbrella companies’ and highlighted how they have increasingly attracted HMRC attention due to their increasing propensity to be involved in, or facilitation of, supply chain VAT fraud. Fraudulent exploitation of Employment Allowance (EA) and the VAT Flat Rate Scheme (FRS) enables […]
18/06/24
Commercial Disputes, Tax & HMRC
A ‘Loan relationship’ is a term which encompasses an extremely wide area of financial arrangements from a straight forward loan to complicated financial activity supporting trading between associated corporate bodies. Money does not have to physically change hands and the loan may be accomplished by, for example, a ‘loan note’ issued by a company for […]
14/06/24
Cryptocurrency, Financial Investigations, POCA
Since the Proceeds of Crime Act 2002 (POCA) was introduced, essential amendments and additions have been made. These changes, which have been discussed in previous articles, enable the legislation to keep abreast of the changing requirements of society and the operation of financial markets. One such requirement is the need to cater for the arrival […]
13/06/24

Get in touch

Need legal assistance? Contact our experienced team for prompt and professional support.
Old map of Birmingham