Representing Individuals in Interviews: The UK Perspective

38.1 Introduction

An individual may face interview in different investigative processes, with varying legal rights and protections available dependent on the type of interview. Considered below are some issues that may arise when practitioners represent an individual, usually a current or former employee or board member, in an interview conducted during a corporate internal investigation or an interview as a witness, or suspect, in a law enforcement investigation.[2]

38.2 Interviews in corporate internal investigations

38.2.1 Whether representation is required and funded

An internal investigation is usually a fact-finding exercise, and participants in an interview may not be afforded the same protections that are available in law enforcement investigations. There is no statutory requirement for a corporate to offer an individual an opportunity to seek legal advice before or during the interview process or to fund access to a lawyer. Corporates are often reluctant to involve lawyers for individuals owing to fears that this may hinder the investigation or be costly. However, in certain circumstances, the corporate may be willing to recommend and provide access to a lawyer or permit the involvement of a lawyer of the individual’s choosing.

For the corporate investigator, legal assistance may be particularly desirable in two situations. First, where the individual risks self-incrimination in respect of the misconduct that could create a conflict of interest between the corporate and the individual; the corporate may avoid potential criticism in a subsequent law enforcement investigation that the quality of the evidence or fairness of the proceedings has been tainted by its own conduct. It would also avoid the risk of the corporate’s lawyers breaching their professional duty not to take ‘unfair advantage’ of a third party.[3]

Second, where the acts or omissions of an individual could provide a basis for corporate criminal liability, for example where the individual is the ‘directing mind and will’[4] of the corporate or an ‘associated person’ for the purposes of the Bribery Act 2010 or the Criminal Finances Act 2017,[5] it may be beneficial for the individual to receive legal advice, which in turn could assist the corporate to properly assess its own exposure to criminal liability.

The issue of who is responsible for funding an individual’s legal representation in these circumstances can be thorny. Discussions with the corporate, or its insurers, may be influenced by reference to wider issues that may be encountered as a result of the internal investigation. The risk of subsequent regulatory or law enforcement action, the possibility of related litigation being brought – or triggering a requirement to make adverse disclosures to third parties – can weigh heavily on the decision-making. Legally represented individuals are more likely to provide considered and relevant responses during the interview and wider investigative process than those who are required to represent themselves. Careful consideration should be given at the outset to a corporate’s long-term strategy, particularly where there is likely to be engagement with third parties, including law enforcement agencies, regulators or other stakeholders such as investors and auditors. The corporate may consider that the benefits of funding legal representation for the individual far outweigh the cost implications.

38.2.2 The role of the employee’s lawyer before the interview

It is a lawyer’s professional duty to act in the best interests of an individual client.[6] However, the corporate may require the individual to agree to restrict the terms of the lawyer’s engagement, for example the scope of the work to be undertaken, a limit on fees and when these may be clawed back (e.g., where adverse findings are later made against the individual in regulatory or criminal proceedings). In some circumstances, a corporate may request a single lawyer act on behalf of a number of individuals, whether this is permissible and appropriate is a professional consideration for the lawyer. Where there is no conflict of interest, it may still be possible for an individual to negotiate with the corporate to instruct a separate lawyer, but this may dampen the corporate’s willingness to cover some, or all, of the fees.

Regardless of how the lawyer is instructed, it will usually be beneficial for the lawyer to establish a working relationship with the investigator. Productive engagement between the parties may enable the individual to understand the scope of the investigation, his or her alleged role in the matters being investigated and whether the matter has already been reported to a law enforcement agency or regulator. It may also assist in resolving often contentious issues regarding disclosure, to allow the individual adequate preparation and enable the identification of other relevant material that may provide essential context to any defence or mitigation the individual wishes to rely on. A former employee or board member may only have retained limited records and would usually have no access to the corporate’s systems and documentation. The role of the lawyer to facilitate the disclosure of certain documents, or categories of documents, to assist the individual to present his or her account is often essential.

In preparation for an interview, the lawyer should review the disclosure provided and any documents supplied by the individual, and take detailed instructions to anticipate likely topics of interest and lines of questioning. The lawyer should structure the individual’s instructions, and any additional material to be relied on, logically to ensure that the individual can give the most cogent account. The lawyer will then need to consider, in light of the individual’s account and the lawyer’s assessment of how well he or she is likely to perform, whether it is in the individual’s best interests to participate.

38.2.3 Advising the employee whether to attend the interview

There are often competing interests to consider when deciding whether to participate in an interview, some of which are driven by the status of the individual. Current employees may be obliged to co-operate under the terms of their employment contract, with a failure to do so resulting in suspension or dismissal. However, there is no statutory compulsion to co-operate, and consideration should be given to all potential adverse consequences that may arise. If there is a risk the individual will admit criminal misconduct or a regulatory breach, this may inevitably provide grounds for dismissal in any event and would be detrimental in future criminal or regulatory proceedings. In some circumstances, an admission in interview may trigger the individual’s obligation to self-report to a regulator, separate to any obligation owed by the corporate.[7] This could lead to a parallel investigation being launched by the regulator, before the conclusion of the internal fact-finding process.

Where the individual is a former employee, the decision not to attend for an interview may be more straightforward. If the decision is made to co-operate with the internal investigation, it may afford an individual greater flexibility in negotiations with the corporate on aspects of the process such as representation, disclosure or providing written answers to questions rather than attendance in person.

Where an individual is unlikely to be implicated in misconduct, or their role is very limited in scope, in some circumstances it may be advantageous to co-operate to ensure the ability to later rely on his or her account or shape the corporate narrative that may ultimately be provided to law enforcement, regulators or published more widely.

In all cases, the lawyer will need to consider whether in light of all of the factors considered, it is in the individual’s best interests to participate. However, where there is a risk of self-incrimination in respect of serious misconduct, attendance is unlikely to serve those interests.

Although, in the United Kingdom, the contents of the interview may be protected by litigation privilege,[8] the corporate may choose to waive privilege and hand over a record of the interview in a law enforcement investigation. Guidance issued by the Serious Fraud Office (SFO) sets an expectation that recordings, notes and transcripts of internal interviews will be provided by corporates as a mark of co-operation.[9] An individual should only proceed if content that a record of interview may be reviewed at a later stage by law enforcement agencies or a regulator.

The courts have permitted the record of an interview in an internal investigation to be admitted against the individual in criminal proceedings.[10] Where at the commencement of an interview warnings akin to an Upjohn[11] warning have been given to the individual, the record could potentially be admitted. Increasingly, it is considered best practice for an Upjohn warning to be given at the beginning of an internal interview setting out:

  • the interview is a fact-finding exercise conducted on a confidential basis;
  • the interviewing lawyers represent the corporate and not the individual;
  • legal privilege attached to the interview belongs to the corporate and not the individual; and
  • the corporate may choose to waive privilege at a later date and disclose the contents of the interview to third parties, including law enforcement agencies and regulators.

Where liability for the alleged misconduct may not be limited to the United Kingdom, consideration should also be given to the risk of compelled disclosure of the record of interview in other jurisdictions and the extent to which the material disclosed could be relied on in proceedings.

38.2.4 The lawyer’s role in the internal interview

During the course of the interview the lawyer should be ready to intervene to ensure that:

  • the interviewee is given an adequate opportunity to answer the questions and raise all material facts, defences or mitigation identified during the preparatory stage;
  • questions are asked fairly and reasonably with no attempt to intimidate or apply undue pressure to the interviewee;
  • the interviewee does not inadvertently waive legal privilege;
  • the interviewee can receive advice if new issues arise or further disclosure is provided in the interview; and
  • a fair and accurate record is kept of the questions and answers.

38.3 Interviews of witnesses in law enforcement investigations

38.3.1 Voluntary interviews

Voluntary interviews are used to obtain and gather information from witnesses during an investigation. Witnesses are not compelled to attend but may feel obliged to participate, particularly if a current or previous employer or colleagues are doing so. Careful consideration should be given to the best interests of a witness in providing information on a voluntary basis, which offers no protection against self-incrimination. Information disclosed may significantly impact the course of an investigation and could be used in evidence against the witness in subsequent criminal proceedings.

Where the information sought is subject to a duty of confidentiality, a witness would be in breach by disclosing the information and therefore may refuse to attend any interview to avoid incurring any civil liability. In these circumstances, a law enforcement agency would likely seek to compel a witness to attend an interview to obtain the information.

A witness may seek to obtain clarification from an investigator as to the parameters of the voluntary interview, requesting time to review documents that may be referred to during the interview, particularly if matters are historical.

38.3.2 Compulsory interviews

A number of law enforcement agencies may, in certain circumstances, obtain information by compelling a witness to attend an interview.[12] There is no requirement for the law enforcement agency to seek judicial approval, and failing to attend a compulsory interview without reasonable excuse might constitute an offence[13] or a contempt of court.[14] Refusal to attend on the basis of legal advice,[15] lack of disclosure or a fear of self-incrimination is not considered to be a reasonable excuse.

Before the interview, a witness may seek disclosure from the investigator and must adhere to the specific disclosure requirements. Written undertakings may be required from the witness’s lawyer to preserve evidence and confidentiality.[16] The witness is not subject to any duty of confidentiality or restricted by the undertakings; however, sharing certain information acquired during a compulsory interview could give rise to allegations of criminal misconduct,[17] including money laundering offences under the Proceeds of Crime Act 2002 or an offence pursuant to section 2(16) of the Criminal Justice Act 1987,[18] or, in certain circumstances, perverting the course of justice.

Answers given in a compulsory interview cannot be used in evidence against the witness except in two specific circumstances: where he or she has knowingly or recklessly made false or misleading statements during the interview, or where a witness who later becomes a defendant advances a different version of events in subsequent proceedings.

38.3.3 Right to legal representation in a compulsory interview

A witness has no absolute right to have a lawyer present during a compulsory interview.[19] The SFO, for example, will consider a request for legal representation case by case, and it will only be granted where it is likely to ‘assist the purpose of the interview and/or investigation or provide essential assistance to the interviewee by way or pastoral support’.[20] Attendance is permitted on the basis that advice extends only to matters of legal privilege and ‘must not do anything during an interview to undermine the free flow of information’. Despite these limitations, a lawyer must act in the witness’s best interests at all times and should ensure that questions put to a witness are clear, fair and unambiguous.

A lawyer should consider the implications of agreeing to undertakings sought by the SFO. Failure to comply may result in disciplinary action brought by the Solicitors Regulation Authority. Undertakings ought to be considered case by case, with amendments to the terms sought where appropriate. The wording of undertakings should avoid ambiguity and should be discussed with the witness to ensure the lawyer is able to comply.[21]

38.4 Interviews of suspects in law enforcement investigations

38.4.1 The caution

Suspects in a law enforcement investigation must be interviewed in accordance with the Codes of Practice (Codes) pursuant to the Police and Criminal Evidence Act 1984 (PACE), which provides the legislative framework for the powers of police officers to investigate crime and the Codes for the exercise of those powers. Code C sets out the rights of suspects being questioned, and a fundamental protection enshrined in Code C is the caution. A caution must be administered when an investigator has ‘reasonable, objective grounds for suspicion, based on known facts or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it’.[22] The caution should be given in the following terms:

You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.[23]

Failure to administer a caution may render the interview inadmissible in subsequent criminal proceedings.

A suspect should understand that he or she has the right to remain silent, and that any answers given will be admissible in evidence against the suspect in a criminal trial. The suspect should be aware of the ‘adverse inference’ that can be drawn by a jury if a suspect fails to mention a fact that he or she could have reasonably been expected to mention in the interview and later seeks to rely on that fact in his or her defence at trial.[24] The jury could draw an adverse inference if they concluded that, when interviewed, the suspect had no plausible explanation or none that would stand up to scrutiny.

A suspect should be advised that, even when officers do not ask questions during an interview, an adverse inference can be drawn where it was clear that the suspect was being invited to comment and full disclosure had been provided.[25]

38.4.2 Deciding on the suspect’s approach

The most important decision faced by a suspect in an interview under caution is whether to answer questions, remain silent or provide a prepared statement. A lawyer must take care to best protect the suspect’s interests and weigh up the risk of making damaging admissions or being ambushed by previously undisclosed documents during the course of the interview, against the risk of an adverse inference being drawn in any future trial.

The decision on what course to adopt will often be finely balanced and requires careful consideration by a lawyer with competence in the areas of law relevant to the allegations being investigated.

To best assess the appropriate course, the lawyer should seek pre-interview disclosure to ascertain the nature of the offence and the evidential basis of any allegation against the suspect. The investigator is under no legal obligation to reveal the case but a failure to do so may result in the court’s refusal to draw an adverse inference or admit the interview in evidence.

Once the issue of disclosure has been addressed and instructions have been taken from the suspect, the lawyer must decide what approach to adopt in the interview to best protect the suspect’s interests. There are two key issues for consideration: whether the suspect can provide a clear and cogent explanation account of his or her conduct and whether there are tactical reasons to adopt a particular approach.

To reach a decision, a number of factors should be weighed, including:

  • whether the pre-interview disclosure is sufficient to properly advise on the case against the suspect;
  • the admissibility of the evidence relied on by the investigator;
  • the strength of the investigator’s case as currently presented and whether any admissions by the suspect would strengthen it or lead to new lines of enquiry;
  • whether the pre-interview disclosure calls for a defence to be advanced at such an early stage;
  • concerns regarding the tactics to be deployed by the investigator during the interview and whether it is believed that the suspect may be presented with undisclosed material;
  • whether the matters under investigation are sufficiently historical or that further time is required to adequately prepare;
  • whether the suspect intends to make certain admissions, and this is an opportunity to set out matters of mitigation;
  • whether the suspect is unable or unwilling to provide an accurate account or receive legal advice due to illness or impairment; and
  • whether there are any matters of fact on which the suspect might later intend to rely in his or her defence.

Where full disclosure has been provided, a suspect may wish to provide a full comment interview to add credibility to a defence advanced at trial or to provide the investigator with grounds to review the basis of his or her suspicions. However, where the evidence is weak or inconsistent, a suspect may still decide to remain silent.

If the disclosure provided is limited, the lawyer should seek to establish what evidence has been collected and request advance sight of any documentation to be put to the suspect during the interview. Remaining silent may be in the suspect’s best interests, to avoid providing an account that may be inconsistent with material already gathered by the investigator and later deployed to undermine the suspect’s account, or where a suspect may inadvertently extend the scope of the investigation. A detailed contemporaneous note of discussions with the investigator should be made to assist with any subsequent applications to be made to the court to exclude evidence or to resist the drawing of an adverse inference.

To mitigate the risk of an adverse inference being drawn at a later stage, a suspect may provide a prepared statement and decline to answer any questions in the interview. There are many benefits to a prepared statement, one of which is the ability to control the information provided. When a suspect answers questions, he or she may run the risk of providing uncertain and unnecessary detail. If, subsequently, evidence is provided that contradicts the detail of a suspect’s initial account, this will damage credibility. A full commented interview will provide the interviewer with an opportunity to introduce new issues and evidence that are previously undisclosed, exposing the suspect to the risk of providing adverse responses without the benefit of legal advice and time for careful consideration. Drafting a prepared statement enables the lawyer to limit, and give caveats to, the information provided and best protect the suspect’s interests.

In complex cases or where the events are historical, a prepared statement, or series of prepared statements, covering the salient points may well be preferable, an effective prepared statement may guard against the risk of an adverse inference being drawn. However, there is always a risk that the statement could be undermined at a later stage by other evidence gathered during the course of the investigation or the prepared statement may omit important facts that could reasonably have been mentioned in the interview.

Another potential advantage of providing a prepared statement is where there are concerns regarding the vulnerability of a suspect. Providing a prepared statement may ensure that the suspect is able to provide his or her account in a clear and coherent way.

The Attorney General’s Guidelines on Disclosure 2020 came into force on 31 December 2020 and introduced provisions for ‘pre-charge engagement’.[26] The Guidelines were updated in May 2022, effective from 25 July 2022.[27] The introduction of ‘pre-charge engagement’ may impact on the relationship between defence lawyers and investigators and, in some circumstances, may have a bearing on the approach adopted by a suspect in an interview.

The Guidelines are intended to assist prosecutors, investigators, suspects and suspects’ lawyers who wish to enter into discussions about an investigation at any time after the first PACE interview, up until the commencement of criminal proceedings. Pre-charge engagement is a voluntary process and may be terminated at any time. It may involve:

  • giving the suspect an opportunity to comment on further lines of enquiry;
  • establishing whether a suspect can identify other lines of enquiry;
  • asking a suspect whether they can provide access to digital material;
  • discussing ways to overcome barriers to obtaining evidence;
  • agreeing to key-word searches of digital material;
  • obtaining a suspect’s consent to access medical records;
  • a suspect identifying and providing details of potential witnesses; and
  • clarifying whether expert or forensic evidence is agreed.

Pre-charge engagement will not be appropriate in every case and should not be used as a replacement for a further interview under caution. Adverse inferences are not available at trial where a suspect failed to mention a fact when asked about a matter in pre-charge engagement so should not be instigated in circumstances where the investigator may seek to rely on the contents of answers in evidence at trial.

Although a ‘no comment’ interview does not preclude the possibility of pre-charge engagement, it may limit the scope of any such discussions but may still be beneficial in appropriate circumstances.

Since pre-charge engagement takes place before any proceedings, the statutory disclosure rules will not be engaged. However, the investigator must still consider disclosure of unused material as part of the pre-charge engagement, to ensure that discussions are fair and the suspect is not misled as to the strength of the prosecution case.

A number of potential benefits may arise from pre-charge engagement:

  • a suspect who maintains his or her innocence will be aided by the earlier identification of lines of enquiry, which point away from the suspect or towards another suspect;
  • pre-charge engagement can help inform the prosecutor’s charging decision and avoid a case being charged that would otherwise be stopped later;
  • issues and disputes could be narrowed so unnecessary enquiries can be avoided;
  • early resolution of a case reduces anxiety for suspects and complainants; and
  • costs are reduced.

Although still in its infancy, the use of pre-charge engagement as part of the overall strategy of engagement with the investigation process may provide some assistance to an individual, particularly one who declines to answer questions during interview or who wishes to ensure that investigators are directed to other helpful lines of enquiry or to otherwise help inform the prosecutor’s charging decision.

38.4.3 The lawyer’s role in the suspect’s interview

The lawyer’s role in the interview of a suspect is similar to that of other interviews described. A lawyer will oversee the fair and appropriate questioning of a suspect and can object to questions, for example where they relate to issues outside the suspect’s knowledge or if the nature of the questioning is oppressive.

A lawyer should ensure that the suspect has had sufficient opportunity to review and consider any documentation to be referred to during the interview and should continue to provide legal advice in the interview. A lawyer should ensure that the suspect is afforded the necessary protections and that appropriate procedures are followed, for example the ability to seek further legal advice in the course of the interview should new matters arise. It is the lawyer’s role to ensure interviews are conducted in accordance with PACE and robustly defend the suspect’s best interests.

A lawyer should ask questions and clarify information provided as part of the interview process so that suspect is not misled as to the nature of the evidence that the investigator has, as opposed to the case that the investigator seeks to put forward.


Footnotes

[1] Natalie Sherborn and Carl Newman are partners, Perveen Hill and Anthony Hanratty are senior associates and Sophie Gilford is an associate at Withersworldwide.

[2] For the purposes of this chapter, ‘law enforcement investigations’ refer to investigations by UK public bodies such as the Serious Fraud Office, Financial Conduct Authority (FCA), the National Crime Agency and regional police forces exercising a statutory function of investigating criminal offences. Other types of interviews, such as interviews of co-operating witnesses pursuant to the Serious Organised Crime and Police Act 2005, fall outside the scope of this chapter.

[3] Solicitors Regulation Authority (SRA) Code of Conduct for Solicitors, RELs and RFLs, paragraph 1.2..

[4] Tesco Supermarkets Ltd v. Nattrass [1972] AC 153.

[5] Bribery Act 2010, ss.7 and 8; Criminal Finances Act 2017, ss.45 and 46.

[6] SRA Code of Conduct, Principle 7.

[7] FCA Handbook, APER 2.1A.3, Statements of Principle, Principle 4.

[8] SFO v. ENRC [2018] EWHC 2006.

[9] SFO Operational Handbook, Corporate Co-operation Guidance, Witness Accounts and Waiving Privilege.

[10] R v. Twaites [1991] 92 Cr App R 106 CA; R v. Welcher [2007] EWCA Crim 480.

[11] Upjohn v. United States, 449 U.S. 383 (1981).

[12] For example, Criminal Justice Act 1987, s.2; Serious Organised Crime and Police Act 2005, s.62; Financial Services and Markets Act 2000, s.165.

[13] Failure to comply with a s.2 notice is a criminal offence under s.2(13) Criminal Justice Act 1987.

[14] If the court is satisfied that the defaulter failed without reasonable excuse to comply with the requirement, under s.177(1) FSMA 2000, it may deal with the defaulter, and in the case of a body corporate, any director or other officer as if he were in contempt under s.177(2) Financial Services Markets Act 2000.

[15] R v. Director of Serious Fraud Squad, ex p Johnson [1993] COD 58.

[16] SFO Operational Guidance: Presence of interviewee’s legal adviser at a section 2 interview – guidance for lawyers, available at https://www.sfo.gov.uk/download/sfo-operational -guidance-presence-interviewees-legal-adviser-section-2-interview-internal-guidance/.

[18] For example, the trial due at Southwark Crown Court in March 2023 involving a solicitor charged with a tipping-off offence following receipt of a section 2 notice to produce documents to the SFO.

[19] R (on the application of AFP Lord) v. Director of The Serious Fraud Office.

[20] SFO Operational Guidance: Presence of interviewee’s legal adviser at a section 2 interview – guidance for lawyers, available at https://www.sfo.gov.uk/download/sfo-operational -guidance-presence-interviewees-legal-adviser-section-2-interview-internal-guidance/.

[21] Law Society Practice Note 2017.

[22] Codes of Practice pursuant to the Police and Criminal Evidence Act 1984 (PACE Codes), Note 10A to paragraph 10.1 of Code C.

[23] PACE Codes, paragraph 10.5 of Code C.

[24] Criminal Justice and Public Order Act 1994, s.34.

[25] R v. Ricky Green, [2019], EWCA Crim 411.

[26] The Attorney General’s Guidelines on Disclosure 2020, Annex B.

[27] The Attorney General’s Guidelines on Disclosure 2022, Annex B.

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