Nothing like starting the week with a bit of environmental scanning! Light Monday morning reading, full courtesy and acknowledgement to Crimeline, who signposted the articles in the link below with the following commentary:
The new guidance has sparked some commentary from leading lawyers, including Corker Binning partner Andrew Smith who wrote:
“A section 2 interview is a powerful investigative tool used by the SFO. The CJA deprives the witness of the right to refuse to answer questions, either on the basis of a duty of confidence owed to a third party or because their answers would be self-incriminatory.
The SFO has not explained why it considers the old guidance to be deficient, nor has it identified the problems the new guidance seeks to remedy. Reading between the lines, however, the new guidance appears to be a response to a number of connected phenomena which the SFO perceives as having inhibited the obtaining of information during a section 2 interview.
Innovative developments in the guidance include not stating whether a lawyer will generally be allowed to represent the witness in the interview, lawyers will unlikely be able to attend the interview if they are unable to demonstrate that they owe a duty of confidence to any other person involved in the investigation, and that only one lawyer will be allowed to attend the interview, amongst others.
When viewed as a whole, it is difficult to understand how much of the new guidance assists the SFO in making a more informed determination about the risk of prejudice to the investigation.
Some elements of the guidance are justifiable in curbing the worst practices of some lawyers, but others appear to serve no purpose at all. These elements will lead to contrived results and suggest a misunderstanding, or indeed cynicism, about the nature of the proper role performed by a lawyer.
There is ultimately a risk that the SFO, in constructing this elaborate extra-statutory scheme, is alienating the very people upon whom a successful prosecution will depend. It is to be hoped that the SFO puts into practice the words found at the start of the new guidance; that “interviews under section 2 must be conducted with great care to ensure that they are carried out fairly”.”
Worth a look at SFOs policies towards witnesses: