Section 2 notices compel recipients to hand over documents to the SFO, and deny those giving evidence a right to silence – although, in return, individuals will not be prosecuted provided they do not lie. These witness interviews will involve different board members to those who have already been interviewed under caution.
The SFO has already conducted interviews under caution – in which suspects are read their rights – with Bob Diamond, ex-chief executive; John Varley, ex-chairman; Chris Lucas, former financial officer; and Roger Jenkins, former head of its tax-advisory business. No charging decision has been made. Mark Harding, Barclays' former general counsel, and Judith Shepherd, its general counsel for investment banking, have also been interviewed under caution. Their lawyers declined to comment.
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The SFO has also moved away from investigating whether there was any corruption involved in Barclays' capital-raising from Qatari investors. Instead, it is probing whether both the bank and key former directors breached legislation on making false and misleading statements, and the general obligations of publicly traded companies, people with knowledge of the inquiry added.
"None of these offences are what you would call heavy-duty; it doesn't really send out the right message," said one barrister not involved in the case. "But for the individuals involved, it's undoubtedly good news as there is a greater likelihood of avoiding a lengthy prison sentence."
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A central part of the SFO's probe is an allegation that the bank did not make proper disclosure of financial assistance it was receiving; namely an allegation that it lent money to Qatari investors that was then reinvested in the capital raising – a line of inquiry first reported by the Financial Times in January 2013.
Barclays is refusing to hand over to the SFO what the agency says is key evidence between suspects and the bank's internal and external lawyers, according to people familiar with the situation – because Barclays asserts that the communications are covered by legal-professional privilege. Privilege keeps confidential legal advice to a client.
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The SFO, in return, is considering two high-stakes manoeuvres before making a decision on charges, the people added. One option is to appear in front of a high court judge to argue the privilege point against Barclays; the other – more unusually – is to allege to a magistrates' court that the bank is not complying with a Section 2 notice, which is itself a criminal offence.
Barclays and the SFO declined to comment.
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