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SFO section 2 notices: do you have to answer?
Yes. A Criminal Justice Act 1987 s.2 notice compels you to answer questions and produce documents, and refusing without reasonable excuse is a crime. In return, your answers generally cannot be used as evidence against you unless you lie or later contradict them.
What a section 2 notice is
The Director of the Serious Fraud Office can, by written notice, require the person under investigation, or anyone believed to have relevant information, to answer questions or provide information (Criminal Justice Act 1987 s.2(2)), or to produce documents, explain them or say where they are (s.2(3)). If documents are not produced, the SFO can seek a search warrant (s.2(4)).
Do you have to answer?
Yes. There is no right to silence in a section 2 interview. Failing to comply without reasonable excuse is an offence, with up to 6 months' imprisonment and a fine (s.2(13)).
How your answers are protected
- Your statements can be used in evidence against you only in a prosecution for making a false or misleading statement, or if at a later trial you give evidence inconsistent with them and you or your lawyer raise the statement (s.2(8), (8AA)).
- The protection covers what you say, not documents you produce.
- Your answers can be used against other people and to find further evidence.
Privilege and confidentiality
You cannot be made to disclose material covered by legal professional privilege (s.2(9)), although a lawyer can be required to give a client's name and address. Banking confidentiality is protected unless the customer consents or the Director authorises the requirement (s.2(10)).
Can a lawyer attend?
There is no automatic right. SFO policy is that a practising solicitor, barrister or chartered legal executive will be allowed to attend if the case controller believes they will assist the interview or investigation, or provide essential legal advice or pastoral support. They must give undertakings, including that they are not retained by, and owe no duty of disclosure to, anyone else who may come under suspicion, such as your employer. One extra lawyer may attend to take a handwritten note, as digital devices are not allowed. A lawyer whose attendance would cause delay is likely to be refused.
Related offences
- Knowingly or recklessly making a false or misleading statement: up to 2 years (s.2(14), (15)).
- Destroying, falsifying or concealing documents when you know or suspect a fraud investigation is under way or likely: up to 7 years (s.2(16), (17)).
Not the same as a PACE interview
In an interview under caution you have the right to stay silent, although the court may draw inferences, and anything you say can be used against you. A section 2 interview is compulsory, but your answers are largely protected. Take specialist advice before attending either.
Authorities: Criminal Justice Act 1987 s.2(2)-(4), (8), (8AA), (9), (10), (13)-(17); SFO guidance: Section 2 interviews (GOV.UK)