On 2nd January, a blog post from Corker Bining that cautions that, despite the changes in the law of disclosure engendered by the ENRC case, it appears that the policy of the SFO is that whenever a company approaches it with a self-report (with a view to seeking a deferred prosecution agreement or DPA) and seeks approval to continue its internal investigation, the SFO demands that any forthcoming significant witness interview to be conducted by its solicitors should be audio recorded and the recording thereafter promptly disclosed to it.  This, it says, neatly sidesteps potential objections concerned with the lawyer’s notes disclosing their musings or, as US attorneys claim, their “mental impressions” of the witness which could now since the Court of Appeal’s ENRC judgment be covered by a valid assertion of privilege.  If the company objects to this measure, the SFO can adduce the judgment in R (AL) v SFO as justification.  The blog comments on the effects this is likely to have on such internal inquiries – how the questions are asked (if asked at all?), and/or how the employee answers (or answers at all).  It also warns that audio recordings of this kind have the potential to effectively destroy a suspect’s right of silence, and they would not have been cautioned at the start of the interview – and may well have been instructed by the employer to co-operate, and face disciplinary action of they do not.

Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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