13 May 2015
David Corker comments on section 2 interviews in Global Investigations Review
England’s High Court backs SFO in prejudice fight
The High Court of England & Wales has agreed with an SFO stance that having corporate counsel present during compelled interviews with employees may prejudice investigations.
In an unreported judgment in February 2015, Lord Justice Davis in the High Court of England & Wales ruled that the SFO was right to prevent a large law firm from attending interviews with executives of a multinational company. The law firm is counsel to the company in an SFO corruption investigation.
Lord Justice Davis rejected arguments from counsel that the SFO should show that allowing solicitors to attend had actually prejudiced the investigation.
“It would clearly be entirely self-defeating if an interview had to go ahead and actual prejudice had to be established before the SFO could react,” Lord Justice Davis ruled. “In my view, the SFO was entitled to look at whether there was potentially a real risk of prejudice to the investigation before deciding as it did: and that is precisely the process it adopted.”
“The SFO’s argument is that any witness may feel intimidated, or at least discouraged, from providing evidence candidly if company lawyers are present,” said David Corker at Corker Binning in London.
However, companies are keen to ensure staff do not disclose information covered by their employer’s privilege.
Corker said: “Whilst the judge didn’t directly deal with that [privilege] argument, he implicitly seemed to regard it as unpersuasive.”
An SFO spokesperson said the High Court’s decision “confirms that there is no common law right to legal representation in a section 2 interview, that the SFO’s policy concerning attendance in such interviews is lawful, and that it was applied appropriately here.”