Some 20 years ago I attended a “contentious” meeting at the European Commission with a client. After the prelims the Commission officials asked the client (in front of me) whether it would not be better to invite the lawyer to leave the room. If this was unacceptable then, today it would be unthinkable. Over the ensuing 20 years the Commission’s procedures have been strengthened, the rights of defence have been codified in the EU Charter of Fundamental rights; and the Court of Justice of the EU has made judicially clear the absolute obligations of EU institutions and Member States to respects rights of defence when EU law is in issue.
It would seem that the SFO is unaware of these obligations. In a recent press release posted on its website we are told that a company seeking to persuade the SFO to offer it a Deferred Prosecution Agreement (DPA), can show real co-operation by ensuring that any internal investigation and interview of witnesses is carried out by non-lawyers. The benefit to the SFO being that such material can then be used freely without the need to consider rules of legal professional privilege.
If this is a policy statement of the SFO - and its presence on the “company” website would be a clear indication - there are substantial problems ahead for the SFO: breach of rights of defence; non-compliance with the EU Charter of Fundamental rights; non-compliance with the European Convention of Human Rights and the case law of the European Court of Human Rights.
For the company the deal is less than compelling - waive all rights to legal protection and the SFO will consider whether a DPA can be offered. There is however no guarantee. And for the individuals interviewed by the company? What about their rights of defence and rights against self incrimination?
There are plenty of situations in which it is perfectly correct to ask the lawyers to leave the room. This however is not one of them.