Lord & Ors, R (On the Application Of) v Director of the Serious Fraud Office

A statutory compulsory interview regime does not confer, by implication from fairness or the common law, an entitlement to have a solicitor present where the statute confers no such right. A policy permitting legal advisers to attend may lawfully allow exclusion where attendance may potentially prejudice an investigation. The relevant question is whether the authority’s assessment of that risk is reasonably open to it, not whether actual prejudice has already occurred. A prima facie choice of solicitor is therefore subject to the statutory and investigative context.

The claimants, senior employees of companies under investigation for suspected bribery and corruption, were required to attend interviews under section 2 of the Criminal Justice Act 1987. They wished to be accompanied by the solicitors acting for their employer, GSK. The Serious Fraud Office permitted legal representation in principle but refused to allow those solicitors to attend because their presence might prejudice the investigation.

The claimants renewed an application for permission to seek judicial review of that decision. The central issues were whether they had an arguable right to have a solicitor present, whether the SFO’s policy was lawful, and whether its application of that policy was irrational.

1. Permission refused. The renewed application was not arguable. The decision under challenge was the SFO’s letter of 26 November 2014, considered in its context.
2. Section 2 of the Criminal Justice Act 1987 does not confer a right to have a solicitor present throughout a section 2 interview. The claimants accepted that no such entitlement arose from the statutory wording. The court rejected the alternative submission that a common law right could be implied because interviewees might face privilege issues or liability for non-compliance.
3. The approach was contrary to R v Chief Constable of the Royal Ulster Constabulary (ex parte Begley and McWilliams) [1997] 1 WLR 1475, where the House of Lords declined to fill alleged statutory gaps through general common law fairness.
4. The SFO could operate a policy permitting legal advisers to attend, subject to the attendance not unduly delaying or prejudicing the investigation and to the adviser understanding the distinct role involved. Any entitlement to a solicitor of choice was not unqualified. Exclusion was lawful where the circumstances provided a sufficient investigative reason.
5. The SFO was entitled to assess whether the employer’s solicitors might share interview information with GSK, their client and a suspect, and whether their presence might reduce the candour of employees’ answers. The policy did not require actual prejudice to be established first. A potential real risk of prejudice was sufficient.
6. The decision was directed to the particular circumstances, was consistent with the policy and was not a blanket rule. The three claimants could properly be treated alike because no material distinction was identified. There was no arguable irrationality. The court made no order as to costs.

The renewed application followed refusal of permission on the papers by a single judge on 23 December 2014. The Divisional Court agreed with that conclusion and refused permission to apply for judicial review. The judgment itself does not state a further appellate stage.