England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 February 2015

LORD JUSTICE DAVIS:

1. This is a renewed application for permission to apply for judicial review, permission having previously been refused on the papers by the single judge on 23 December 2014. There is an element of urgency about this matter, as will become apparent from what I say, and perhaps with the benefit of hindsight it might have been better if the matter had been directed at the outset to come on for decision at an oral hearing. But in the event that is not how this matter has come on before us today. We also make clear, in the circumstances, that the only matter with which we are concerned today, as Mr Laidlaw QC, for the applicants, has rightly stressed, is whether or not an arguable case has been presented.
2. Put very shortly, the background position is this. GlaxoSmithKline Plc ("GSK"), a very large and publicly-quoted company, and various subsidiary and associated companies of GSK are under investigation in connection with possible acts of bribery and corruption. It is to be gathered that the investigating process is being undertaken in a number of jurisdictions. It is to be emphasised that as yet nothing has been proved. In this jurisdiction the investigating authority is the Serious Fraud Office ("the SFO"). By notices dated 28 October 2014, 5 November 2014 and 7 November 2014, each of the three applicants was required by the SFO under the powers available to it under section 2 of the Criminal Justice Act 1987 to attend at the SFO's offices on the dates specified in the notices in order to answer questions and furnish information relevant to the investigation. Each of the applicants is a senior employee in the GSK group.
3. In the relevant respects, section 2 of the 1987 Act provides as follows:

" ...

(2) The Director may by notice in writing require the person whose affairs are to be investigated ('the person under investigation') or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.

...

(8) A statement by a person in response to a requirement imposed by virtue of this section may only be used in evidence against him—

(a)on a prosecution for an offence under subsection (14) below; or

(b)on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.

(9) A person shall not under this section be required to disclose any information or produce any document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to furnish the name and address of his client.

(10) A person shall not under this section be required to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on any banking business unless-

(a)the person to whom the obligation of confidence is owed consents to the disclosure or production; or

(b)the Director has authorised the making of the requirement or, if it is impracticable for him to act personally, a member of the Serious Fraud Office designated by him for the purposes of this subsection has done so.

...

(13) Any person who without reasonable excuse fails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both.

(14) A person who, in purported compliance with a requirement under this section—

(a)makes a statement which he knows to be false or misleading in a material particular; or

(b)recklessly makes a statement which is false or misleading in a material particular,

shall be guilty of an offence.

...

(16) Where any person—

(a)knows or suspects that an investigation by the police or the Serious Fraud Office into serious or complex fraud is being or is likely to be carried out; and

(b)falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of documents which he knows or suspects are or would be relevant to such an investigation,

he shall be guilty of an offence unless he proves that he had no intention of concealing the facts disclosed by the documents from persons carrying out such an investigation.

... "

4. Thus it may be noted that, amongst other things, an answer in such an interview cannot be used thereafter in evidence against such an individual being so interviewed, save for the purposes of section 2(8)(b), read together with section 2(14), and in other circumstances as set out in the section. That is entirely consistent with the powers being designed to be exercisable for the purposes of furthering the investigation by the obtaining of information. The risk of self-incrimination in the conventional sense will not ordinarily arise.
5. GSK itself has retained for the purposes of the investigation as its solicitors the highly reputable firm of Arnold & Porter UK LLP, which has considerable expertise, and on an international basis, in such matters. The three applicants wish a representative of Arnold & Porter to attend with them at the interviews and there be available to offer them any necessary legal advice and assistance. The SFO has declined to permit this. There was initial correspondence, in which by letter of 14 November 2014 the SFO baldly refused to allow the applicants to have any legal representation at all at the actual interviews. Subsequently, in successive letters, that stance was modified (and indeed arguably necessarily so in the light of the policy I will come on to mention) by the SFO. The final stance of the SFO was contained in its decision letter dated 26 November 2014. By that letter (and again I will come on to mention certain of its provisions) the presence of lawyers at the interviews of the applicants was in principle permitted. But what was objected to by the SFO was the presence of Arnold & Porter as such lawyers, it being stated that their presence might stand to prejudice the investigation. The SFO thus in its final stance has made clear that it is prepared to permit the applicants to have legal advice and representation at the interviews: but not from Arnold & Porter.
6. It is that decision which the applicants seek to challenge by these judicial review proceedings. Shortly put, they say that they are entitled to have the solicitors of their own choice present at the interviews, at least arguably so.
7. Although Mr Laidlaw has made some attack on the way in which the decision-making process of the SFO has developed, I am not prepared to accept as even arguable the proposition that the letter of 26 November 2014 is an ex post facto rationalisation of a decision already made, as indicated by the previous letter of 14 November 2014. In my view, the relevant decision letter which has to be considered on its own merits, or lack of them as the case may be, is that of 26 November 2014, albeit set in context.
8. For like reasons, it is also not necessary to consider the proposition as to whether a blanket refusal of legal representation would have been open to the SFO. In point of fact, the position arising, as became apparent to the SFO itself in the course of the correspondence, is the subject of a written policy of the SFO contained in its Operational Handbook; currently, as we were told, being the subject of revision but to be taken in the form as it stood in November 2014. So far as section 2 interviews are concerned, amongst other things the Handbook says this:

"It is SFO policy to permit the attendance of defence legal advisers at s2 interviews provided that

Their attendance does not unduly delay or in any way prejudice the investigation; and

They understand their role (which is different to the role of a legal adviser to a suspect being interviewed under PACE 1984 caution).

...

Solicitors acting for companies may ask to be present when an employee is interviewed. This is not always appropriate, as in some cases there may be a conflict between the interests of employer and employee.

In any situation where the investigative team believes a solicitor's presence would create a conflict of interest, please refer to the Law Society's guidance on the presence of an employer's solicitor at an employee interview. (Although referring specifically to the HSE, this guidance is also relevant to the SFO and other prosecuting authorities.) In essence, the guidance states that it is not generally appropriate for an employer's solicitor to be present at an employee interview.

The interviewee should be asked to confirm what representation s/he wishes to have."

It is also later provided that so far as interviews with suspects are concerned, they will normally be conducted and recorded in accordance with PACE. I make clear that there is no suggestion whatsoever that any of these three applicants is a suspect. The suspect, as matters stand at present, is GSK and its subsidiaries and associates, as the case may be.

9. At common law an accused person has a general right to consult privately with a solicitor when detained in custody. However, that common law right does not extend to an entitlement for an accused to have a solicitor present throughout a police interview. That is plainly established by the decision of the House of Lords in R v Chief Constable of the Royal Ulster Constabulary (ex parte Begley and McWilliams) [1997] 1 WLR 1475. Of course, the effect of that decision may well be modified by statute in certain situations. We are all of us familiar, for example, with section 58 of the Police and Criminal Evidence Act 1984, coupled with Code C, which gives the general right to an arrested person to consult a solicitor at any time. Similarly under the provisions of the Terrorism Act 2000 (see R(Elosta) v Commissioner of Police [2014] 1 WLR 239, a decision of Bean J). But it is quite apparent from the actual provisions of the 1987 Act that no such right is conferred on those subjected to a section 2 interview. Indeed, it is not difficult to see the rationale for that: given the underlying purpose behind and the provisions of section 2 itself.
10. Mr Laidlaw, on behalf of the applicants, expressly accepted in the course of argument that he did not argue for a statutory entitlement under the actual wording of the Criminal Justice Act 1987 to the presence of a solicitor on behalf of an interviewee during a section 2 interview. In effect, he said that nevertheless such a right was, at least arguably, to be implied from a context whereby interviewees could face, for example, issues of legal professional privilege or indeed might potentially face, in the event they did not answer questions, potential prosecution under section 2(14) for failing to provide such information. He suggested that that particular context imports a common law right to have a solicitor present during such an interview. He could point to no authority to support such a proposition. Indeed, one of his arguments was that it is precisely because there is no such authority that this was an appropriate case in which to grant permission.
11. In my view, however, this simply is not a tenable argument. One cannot imply some common law right of the kind suggested against a specific statutory context of this kind: where the statute conspicuously has conferred no right to the presence of a solicitor during the relevant interview. Furthermore, the approach which Mr Laidlaw seeks to advance is flatly against the approach adopted by the House of Lords in the Begley & McWilliams case. In that case, the House of Lords expressly declined to seek to fill what were asserted to be gaps in the statute by resort to the common law and general considerations of fairness (see the speech of Lord Browne-Wilkinson, in particular at pages 1449 H and 1480 G to H).
12. In any event, given that the SFO has accepted in principle that a solicitor may be present at the interview, this point would seem to be in that sense academic. It is not, I stress, the stance of the SFO, at least by the time of its decision letter of 26 November, that an interviewee could never have a solicitor present at the interview.
13. I should perhaps just mention that sometimes in this context Article 6.1 and Article 6.3 of the European Convention on Human Rights are invoked. But that could not take the matter any further in circumstances where the person being interviewed under section 2 necessarily has not been arrested or detained (see Ambrose v Harris [2011] 1 WLR 2435, a decision of the Supreme Court). No doubt it is for that reason that the grounds realistically do not seek to invoke any arguments by reference to Article 6.
14. In the event, therefore, as I see it, the real complaint then has to be as to how the SFO has applied its policy and whether it has properly done so. That it can have and operate such a policy (a policy which might indeed be said to be designed to assist interviewees, provided the investigation is not prejudiced) seems to me plain beyond argument.
15. The question then is, and this is really what is central to this case: is, having regard to the SFO's policy, the interviewee entitled to have present during the interview the solicitor of his own choice? Initially, in the course of their written arguments, the applicants had accepted that there could be restrictions on such a right, if such a right exists. They said this:

"The Defendant may lawfully refuse to permit the presence of a legal advisor at a Section 2 interview but only with good reason."

Mr Saini QC thus said: precisely so.

16. In the course of argument, however, Mr Laidlaw sought to withdraw that concession, and we allowed him to withdraw it. However, I think that what was there conceded was, in effect, right. One can readily think of examples whereby it could not possibly be appropriate for a particular solicitor, even if he or she is the interviewee's solicitor of choice, to be permitted to be present in circumstances where demonstrably the investigation would stand to be prejudiced. One example given by Mr Saini was where an interviewee might seek to insist on the attendance of a solicitor of his own choice present at the interview when it is that very solicitor who is the subject of the investigation in question and is the suspect. One can readily think of other examples, not least in an employment context.
17. In fact, and as we have already indicated, Mr Laidlaw could point to no common law entitlement for an individual always to be able to consult or have present in an interview the solicitor of his or her own choice. Indeed, the position is that the "right", even where there is such a right at all, to have the legal advice and representation of one's own choice is not at common law (or indeed under the Convention) an untrammelled right; and any prima facie entitlement, as it were, to have the solicitor of one's own choice may have to yield to the context. This is made explicit in, for example, the unreported decision of Neuberger J in the case of Maltez v Lewis (27th April 1999).
18. Consequently, the provisions of the policy in this regard, which give no unfettered right to an interviewee to have present the solicitor of his or her own choice during the interview, are in accordance with law. A degree of flexibility in terms of excluding a solicitor from an interview is permissible.
19. Consequently, as it seems to me, the complaint has to be as to the decision of the SFO to refuse, in the circumstances of this case, to permit Arnold & Porter to be present at the interviews of the three applicants as their legal advisers of choice.
20. Having regard to the terms of the letter of 26 November 2014, it cannot be said that such letter departs from the policy as contained in the Handbook. On the contrary, it, on its face, accords with it. Furthermore, the situation that has arisen also falls within the ambit of the general guidance of the Law Society relating to an employer's solicitor being present at an employee's interview: which general guidance of the Law Society is expressly referred to and incorporated in the Handbook.
21. That then leads to the ultimate question, which is one of rationality. Could the SFO reasonably decide on the facts and the circumstances of this case as it did? The correspondence overall is suggestive, perhaps, of Arnold & Porter taking a degree of umbrage at what they consider to be professional imputations against them; and it has to be said that the initial letters of the SFO might well have been more courteously put. Arnold & Porter can be trusted to respect professional confidence and proprieties and there is no professional reason, they say, why they should not represent the applicants. It is also pointed out, for example, that the applicants could instruct in any event any other solicitors who may act for them to say to GSK and Arnold & Porter what has happened at the interview. (Indeed, as I see it, there is no obvious bar on the applicants, before the interview, seeking the advice of Arnold & Porter if they so wish.) It also can be said that there is no obvious bar to the applicants themselves telling GSK about the contents of the interviews after they have taken place. Furthermore, Mr Laidlaw has emphasised that questions of legal professional privilege could arise in the context of the interviews (see section 2(9)): questions on which it is said Arnold & Porter may be particularly well placed to advise, not least given their overall involvement as legal advisers to GSK on this entire matter.
22. Although one can well understand these various points, with respect they rather miss the ultimate issue. The question is not whether Arnold & Porter can with professional propriety or advantage act both for GSK, a suspect in the investigation, and for the three applicants at section 2 interviews; the question is whether their attendance may reasonably be assessed by the SFO as potentially prejudicing this investigation. That, indeed, is precisely what the SFO's policy is directed at. Here, the SFO has formed the view, in the circumstances of this particular case, that Arnold & Porter's presence at interview would or might realistically prejudice the investigation. It has given reasons for that view in its letter of 26 November 2014. It has, for example, said that Arnold & Porter may, indeed may professionally be obliged to, provide information as to the interviews to GSK who retain them in circumstances where, perhaps, the applicants may not necessarily wish to instruct them to do so. It also says that the presence of GSK's solicitors may risk damaging the candour with which section 2 interviewees may answer the questions put to them. What is said in the letter of 26 November in this respect is this:

"With regard to that harm, we have explained our reasons in our letter of 19 November 2014. It is our firm view that the presence of lawyers acting for GSK at interviews of employees has the potential to prejudice our investigation. As you will be aware, a solicitor is under a professional obligation to disclose to his client all information in his personal knowledge which is material to that client's retainer or matter. It is therefore very likely that information gleaned in our investigation would be shared with a suspect company. Indeed, since you act for GSK, you might well be obliged to disclose the content of section 2 interviews to GSK, were you permitted to attend. That would not merely give GSK knowledge of what the section 2 interviewees had said even if those interviewees wish that information to remain confidential; but would also risk damaging the candour with which section 2 interviewees answer questions, and thus negatively affect the quality of the evidence we secure.

It is irrelevant in this regard to note, as you do, that the narrow point of conflict in terms of your decision to accept instructions is a matter for you. Our overriding concern is not whether you are obliged to decline instructions, but rather whether your attendance at section 2 interviews pursuant to your multiple instructions has the potential to prejudice our investigation. We consider that it does; and that is properly a matter for us.

This does not mean that you cannot act for employees of GSK, nor do we seek to influence who the interviewees wish to instruct, it is simply that we will not permit you to accompany them to their section 2 interviews."

23. One can see that there might well be a debate about these points. But the question is whether these are points which are reasonably open to the SFO to adopt. In my view, self-evidently they are. It cannot, in my view, be said to be perverse to reach such a conclusion for the reasons given. Mr Laidlaw did at one stage seem to say that the policy set out in the Handbook nevertheless connoted a requirement of actual prejudice before solicitors of choice may be excluded from interviews. In my view, that is too narrow a reading of the Handbook. 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. 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.
24. Mr Laidlaw did suggest that the decision was, in effect, a blanket application of a blanket policy whereby the SFO would not in any circumstances allow the employer's solicitor to be present at an interview of an employee. I do not read the decision letter in that way. It is directed to the particular circumstances of this case relating to GSK.
25. Mr Laidlaw did also seek to say that the decision letter should have addressed the position of each of the three applicants separately. There is, however, no basis for saying that the three applicants were to be treated separately for this purpose. Certainly nothing was flagged up in the correspondence to indicate as such. Their position, in all relevant respects, is on this aspect the same.
26. Overall therefore, in my view, in giving the decision of the 26 November 2014 the SFO was acting in accordance with its policy, which is a lawful policy; and the reasons it gave for applying the policy as it did were, as I see it, reasonably and properly open to it. In the circumstances, I can see no arguable basis for impeaching that decision. I have borne in mind Mr Laidlaw's eloquent arguments about the potential importance of this case not only for the applicants and perhaps GSK but perhaps also for other cases. However, this ultimately was a decision made in the circumstances of this case; and I can see no other compelling reason for granting permission to apply for judicial review.
27. In all the circumstances, I think that the single judge reached the right conclusion. I do not think the application is arguable notwithstanding the arguments that have been placed before us. I therefore for myself would refuse permission.
28. MR JUSTICE FOSKETT: I agree.
29. MR SAINI: My Lords, in respect of costs, Jay J did order that the claimant's pay our costs of the summary grounds. I also ask for the costs of our attendance at this hearing.
30. LORD JUSTICE DAVIS: It is not the normal practice, Mr Saini.
31. MR SAINI: I accept that, my Lord, it is not the normal practice but there is one particular point which I would draw to the court's attention. It is page 2009 of the White Book. Perhaps I can just set out what the point is.
32. LORD JUSTICE DAVIS: I have read that.
33. MR SAINI: My Lord will be familiar with the Mount Cook case, which says generally successful respondents will not obtain their costs of attending the permission stage but one of the factors to be consider is whether the respondent is a public authority and whether, further, the claimant is a well-resourced entity. So that, really, is a factor to be considered.
34. LORD JUSTICE DAVIS: Both of those points apply in this case.
35. MR SAINI: Yes, my Lord.
36. MR LAIDLAW: I think all I can do is, really, draw attention to the protracted nature of the correspondence which has formed at least part of the considerations and the observations your Lordship has made about --
37. LORD JUSTICE DAVIS: The general practice of this court on renewed applications. I think so far as today's application is concerned, we will say no order as to costs. We were helped by your submissions, Mr Saini, but still that is our order. Mr Laidlaw, you did not succeed but it was through no want of skill of the arguments on your part, you have said everything that could possibly have been said. Thank you all very much indeed.