Corporate Investigations by the Health and Safety Executive, Environment Agency, Police, HMRC, Serious Fraud Office or Trading Standards usually come out of the blue. Is your business prepared for a situation where a death, serious accident or fraud is being investigated?
The decisions made in the aftermath of a serious incident are always important, not only for the immediate issues surrounding what is said to the investigators by the directors and employees of a business, but also in terms of the investigation as a whole.
It is essential to be prepared for the possibility of an investigation. Having a backup procedure in place in the event of documents or electronic media being seized can make the difference between a business trading out of a difficult situation and going under. Knowing what to do, what to say and how to handle a situation could be the difference between a fine, and a prison sentence. Having an employee policy in place with to deal with the media could also save reputational damage.
Some law firms like to attempt to draw a distinction between ‘regulatory law’ and ‘criminal law’. Chiefly it seems that this is done to promote a corporate image aligning directors and business owners with a language which suggests that the directors or managers of a business will be treated differently to an ordinary person facing a criminal investigation. In reality, there is very little difference. Regulators such as the HSE and EA will conduct an investigation in much the same way that the police. They will seize and retain evidence interview suspects under caution and if charged, the suspects will appear at a criminal court charged with criminal offences. It is vital therefore that your advisors understand both the criminal and corporate law and how to apply both.
Dealing with the Investigators
Witness evidence is crucial to any investigation. The investigator will want to speak to witnesses and take statements. Business owners should take steps to ensure that potential witnesses within the organisation are properly briefed before speaking to the investigator, and are aware in advance of why they are being asked to provide witness evidence and what their rights are when doing so.
Where the investigator wishes to conduct interviews under caution it is vital that the suspects are properly advised as to their rights under the Police and Criminal Evidence Act. Having a corporate lawyer advising on an interview under caution is not ideal. You can find out more about your rights whilst being interviewed under caution by clicking here.
The investigator can request and seize evidence. Evidence includes documents, computers, memory sticks, servers, CCTV hard drives and physical items used on site or in a factory. However, it is important to ensure that the investigator does not overstep their powers. Certain documents, such as those containing solicitors advice should not be seized. It may be possible in such cases to argue that computers containing emails should not be taken away.
A business should consider how it would deal with the investigator seizing evidence. Appointing a solicitor to oversee the process is a wise move. Another important matter to consider is how the business keeps track of what has been seized. It may be worth implementing a system similar to that used by the police for recording the seizure of evidence.
The organisation’s own investigation into a major incident is important. The business may wish to conduct an investigation in order to establish potential civil liability, or for assistance in mitigating any fine or sentence in the criminal courts. It is important to take advice as to the form and format of such an investigation. It would of course be a disaster if a report suggesting that the management board were responsible for failings was seized during a criminal investigation. Using a solicitor to commission a ‘privileged investigation report’ can ensure that the report into any incident is immune from publication or seizure in connection with any criminal investigation.
It is important to commission a privileged investigation report at the very outset of the investigation. The regulator will in all likelihood want to see any report commissioned by the business. It is therefore essential to take advice on the format of the report in order to protect the business from having to disclose the content.
Where an accident leads to death, or serious injury the media will want to publish information. It is not a sensible approach to simply decide not to say anything and hope for the best, doing so appears insensitive and callous. Further, if the media cannot speak to the directors or managers they may seek out employees or trawl social media for snippets of information. The information presented as a result could be damaging, inaccurate or misleading.
A business should also guard against admitting failings. Apologising profusely and hoping that a sympathy vote will ensue might be a tempting course of action to take when an employee or contractor is injured or killed, but the financial consequences in court and for the business could be disastrous.
The sensible approach to take is to ensure that a balanced press release is prepared which strikes the right tone from the outset.
The following key steps are essential to follow in the event of any serious injury or death:
- inform your lawyers and insurers of the incident
- get advice on the commission of an investigation report
- brief employees on dealing with the investigator
- prepare a press release or statement to the press
- establish a single point of contact to act as liaison with the regulators
- appoint a person or lawyer to deal with the seizure of evidence
- notify the death or serious injury to the relevant authorities
If you have any queries relating to the content of this article, or require advice, please don’t hesitate to contact Ison Harrison.