THE BLOG
09/09/2015 07:04 BST | Updated 07/09/2016 06:12 BST

Bicycle Thieves and the Serious Fraud Office

Recent weeks have not been kind to Michael Howard. On July 31 the Serious Fraud Office (SFO) announced that it was launching a criminal investigation into Soma, a British oil exploration firm chaired by the former Conservative party leader in which he also holds a four percent stake. Just days later, the UK fraud buster opened another investigation, this time into the already embattled insurance outsourcer Quindell, on whose board the Tory peer sits as a non-executive director.

Lord Howard now faces the daunting prospect of SFO questioning regarding payments made by Soma to Somali officials. Despite claims from Soma that the investigating authority attaches "no suspicion whatsoever to Lord Howard", a letter from last year written by a Somali minister to the Tory peer requesting "financial support" has recently resurfaced, and will likely feature prominently in the talks.

Sources at the SFO told the Independent that they expected Lord Howard to be accompanied by a lawyer. "Most people probably would," said one. "Just for peace of mind". But while it is certainly true that anyone due to be questioned by Britain's main fraud investigating and prosecuting body would want their lawyer present, they might very well not be allowed to do so.

Section 2 of the Conservative government's Criminal Justice Act 1987 gave the SFO the power to conduct compulsory interviews of witnesses and to compel the production of documents. However, it created no right for individuals at such interviews to have a solicitor present. Furthermore, the SFO is happy to take advantage of this omission; it has been known to veto and exclude individuals' choices of solicitor.

When British pharmaceutical giant GlaxoSmithKline (GSK) came under investigation for bribery and corruption charges in China, the SFO served three of its senior employees with a s2 notice, requiring them to attend a compulsory interview. On being denied permission to have GSK's lawyers present during the interviews, the three sought a judicial review. In February 2015, The High Court ruled in favour of the SFO, holding that there was no common law right to have a solicitor present, and that the SFO did not require evidence of "actual prejudice" to exclude a solicitor, merely whatever it decided to be "potentially a real risk of prejudice".

In short, if summoned for a compulsory interview, the SFO decide who your solicitor can be, how many solicitors you can bring and even reserve the right to exclude a solicitor altogether.

This is a problem. If someone accused of stealing a bicycle, or of any other crime, was forbidden access to a lawyer when interviewed by the police there would rightly be uproar. And yet the badly underfunded SFO, still smarting from the embarrassment of several failed investigations are keen to show that they can play hard ball. Director David Green made headlines around the same time as the GSK ruling by declaring war on Legal Professional Privilege, which protects the confidentiality of lawyer-client communication. Recently, the SFO has been stepping up its use of s2.

In an interesting twist, the fraud fighters have actually served the former lawyers of a company they are investigating, mining firm ENRC, with a Notice under s2, and are not allowing the company to attend. Given that the law firm in question, Dechert, had been hired by ENRC to conduct an internal investigation before being fired over an ongoing fees dispute, both companies are in a very worrying position indeed. Mr. Green, it seems, is not pulling his punches.

Lord Howard is therefore fortunate that the SFO are allowing him to take a solicitor with him. Indeed, he might recently have been regretting his comments when, as Under Secretary of State and responsible for the Guinness investigation, he criticised Labour for seeking to whittle away the powers given to the Serious Fraud Office in the draft Criminal Justice Bill 1987. Compulsory interviews are daunting experiences which can have serious implications for the individual concerned. Perhaps Lord Howard's encounter with an SFO investigation and interview will persuade some of his friends in government to revisit the issue. Top of the agenda should be giving SFO interviewees the same rights to legal advice as anyone else. A suspected bicycle thief, for example.