Caroline Day and Louise Hodges, Kingsley Napley
This is an extract from the third edition of GIR's The Practitioner’s Guide to Global Investigations. The whole publication is available here.
Conducting the interview: formalities and separate counsel
Professional obligations can affect how witness interviews are conducted. Solicitors have a general duty to act in their client’s best interests, they must not take unfair advantage of a third party, and they must not take unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer. These duties do not always align and it is therefore important to balance the competing requirements.
The interviewer should be satisfied that the witness understands the basis on which he or she is being interviewed, the purpose of the interview and the use that could be made of the information provided, because this may impact its admissibility.
In the United States, an Upjohn warning is given at the start of the interview, where lawyers are present. This practice is often adopted in many investigations in the United Kingdom, even where there is no involvement of US authorities at that time. The warning sets out that:
- The lawyers represent the company and not the employee/witness.
- Privilege in the interview belongs to the company and not the employee.
- The company might choose to waive its privilege and disclose matters discussed in interview to the authorities.
Upjohn warnings derive from the case of Upjohn Co v. United States, where it was held that the privilege that attaches to communications between a company’s lawyers and its employees is the company’s privilege, and not that of its employees. While there is no formal requirement for these warnings to be given in the United Kingdom, it is considered best practice to do so.
The witness should be reminded of the confidential nature of the interview and, where appropriate, be told that it is a fact-finding exercise. However, where a company has decided to waive privilege prior to the interview and provide details to the authorities, the Upjohnwarning may need to be strengthened. The company could consider whether to give a more formal caution, similar to that given by the police when investigating suspects, although this would rarely be required. If necessary, the witness should be told that while not part of a disciplinary process, the information provided could inform a decision on whether to instigate disciplinary action.
The company should consider whether its own legal advisers can advise the witness or whether to allow the witness to have their own lawyer in attendance. The company may wish to offer to pay for the independent legal adviser. Clearly a company cannot prevent its employees obtaining legal advice of their own volition and expense; however, it can control who can be present in an internal interview. If an authority investigation is under way, the witness may have contractual rights or rights under an insurance policy (D&O insurance) to fund an independent legal adviser. Former employees may have an indemnification or contractual right as part of their exit package.
Those witnesses who appear to be at little risk of criminal or regulatory exposure are unlikely to need independent counsel to protect them against any risk of self-incrimination, and the provision of an Upjohn warning or a similarly worded preamble should suffice. However, a company may nonetheless offer separate legal advice to these witnesses if this would allay their concerns or ensure that appropriate advice is given (including from an employment or civil perspective). Perhaps most importantly, an independent adviser’s role will assist preparation and increase the likelihood that the individual will give their best account. Moreover, it is often not easy to predict where risks may be at an early stage.
The provision of separate counsel is particularly important where there may be a conflict of interest between the company and a witness. This can arise where a witness is a whistleblower or at risk of criminal or regulatory investigation or where the company could be implicated in corporate wrongdoing. In these circumstances the interests of the company and the witness may not align and it would be prudent to consider suggesting independent counsel. While this might delay the interview to allow advice to be given, it ensures that the witness has had the opportunity to obtain his or her own legal advice and, depending on the facts, could make the interview more effective. However, the involvement of an independent legal adviser could also result in the witness being less inclined to attend the interview or answer questions, although an employee would then be at risk of disciplinary action for not co-operating.
The decision when to offer independent legal advice can also depend on the account given by the witness, and it may be appropriate to stop interviews if witnesses give an account that indicates that the company has a potential civil claim against them or that they are making potentially criminal admissions.
Ultimately it would be difficult for witnesses to assert that they had not been fully informed where they had been separately represented, or that the interviewer or company had taken an unfair advantage.
Conducting the interview: whether to caution the witness
Where a witness may be suspected of involvement in a criminal offence, a caution may be considered. A caution is used by police officers and other investigators when conducting interviews of suspects to ensure that any resulting account (or refusal to answer questions) is admissible in criminal proceedings.
Section 67(9) of the Police and Criminal Evidence Act 1984 (PACE) provides that ‘persons other than police officers who are charged with the duty of investigating offences’ shall have regard to the relevant provisions of the PACE Codes of Practice, and Code C 10.1 of the Codes sets out the requirement to caution.
This duty applies to SFO investigators, but is not restricted to state authorities and can also apply to private store detectives and commercial investigators who are appointed by a company to investigate its employees for the commission of criminal offences. Importantly, however, it does not apply in the context of an internal investigation where the sole purpose is to determine what recommendations should be made to an internal disciplinary panel. It is therefore unlikely to apply in circumstances where an employer investigates allegations that could give rise to disciplinary action and where the sole purpose of the investigation was to inform the company how to respond.
Where criminal offences are being considered, section 67(9) would only apply if the investigator was charged with investigating or charging criminal offences at the time. This scenario would arise in circumstances where the interviews had been delegated to those conducting the investigation and where they were effectively acting on behalf of a criminal authority. It would require the authorities to sanction the taking of a suspect’s account with a view to it being used in a criminal trial. In light of the authorities’ general reluctance for a company to conduct interviews with suspects, particularly when it involves obtaining first accounts, it is unlikely that this situation would arise, and therefore a caution is unlikely to be required.
Conducting the interview: record-keeping
A record can be kept of a witness interview in a number of ways. It could be audio-recorded and transcribed. A verbatim record would exist, removing the risk of any challenge to the accuracy of what was said, and the recording would capture the tone and any pause or emphasis, which can often give context and allow for an overall assessment. However, it could affect the witness’s account by adding an element of formality, potentially having an unsettling effect on the interviewee and making him or her less forthcoming. More importantly, there is significant uncertainty over whether legal privilege would apply to a recording, particularly where the interview has been conducted as a fact-finding exercise. Even where privilege can be properly asserted, it is likely to be challenged by the authorities, and where a transcript exists, the authorities are likely to request a copy.
An alternative approach is for the legal adviser to prepare a note of what the witness has said. Legal privilege is more likely to apply in circumstances where notes contain some form of legal comment, advice and analysis. This may include the lawyer’s own impressions and assessment of the interview. Alternatively two sets of notes could be prepared, one containing the factual account and one containing the lawyer’s own views. If so, at a minimum, the authorities are likely to seek a copy of the factual account.
The company will need to decide whether to provide the witness with a copy of the note. Where it is likely to rely on the witness’s testimony in civil proceedings, it may be helpful to agree a note at an early stage to limit any future challenge to its accuracy. This carries the risk that it may be passed on and any applicable privilege would be waived, and may cause issues if the account is materially disputed.
Where proceedings are anticipated, there are some advantages in preparing a witness statement at an early stage. If the witness decides at a later date not to co-operate or for whatever reason he or she is no longer able to assist, the company may be able to rely on the evidence given, or compel the witness to attend and give evidence having already taken a record of the witness’s evidence. However, even if privilege can be maintained, it is likely the authorities would nevertheless seek a copy.
Legal privilege in the context of witness interviews
Legal privilege in the context of witness interviews raises a number of complex issues and a claim to privilege will be closely scrutinised by the authorities. Over the past few years, the SFO has claimed that it does not want to undermine legal privilege, which is respected as a legal principle and fundamental right. However, in a speech in 2018, Camilla de Silva, Joint Head of Bribery and Corruption at the SFO, noted: ‘Recent cases have highlighted that the SFO will challenge overly ambitious claims to privilege and, in specific circumstances, are obliged to do so.’ In March 2016, Alun Milford, then General Counsel of the SFO, made it very clear that the SFO will view ‘false’ or ‘exaggerated’ claims to privilege as unco-operative, and notwithstanding his acknowledgement that a claim may be well founded, where a company discloses details of witness accounts it will be viewed as a significant mark of co-operation. Furthermore, a company’s decision to structure its investigation so as not to attract privilege will be viewed as significant co-operation. Camilla de Silva noted: ‘We are not interested in material that is genuinely privileged. We do however reserve the right to question, probe and where necessary challenge assertions of privilege which are[,] in our view, excessive.’
During a speech in September 2016, the then Joint Head of Bribery and Corruption at the SFO acknowledged that it was impossible to make a single statement about access to evidence (to include witness interviews) that would apply to any situation without further thought being necessary. He highlighted factors to be considered to include the circumstances during which the witness first account took place; the extent to which contemporary records, written summaries or oral summaries accord with or differ from the SFO’s understanding of the case; the stage of any internal investigation at the time of self-reporting; and the quality and impact of other co-operative steps that the company may take. It is clear, however, that if a company chooses not to co-operate with the SFO, it is much more likely that the company would not be offered the opportunity to receive a DPA, with Camilla de Silva stating that the SFO will only invite a company to enter into DPA where that company has ‘genuinely cooperated with the SFO” and that ‘the DPA Code provides that co-operation will include identifying relevant witnesses, disclosing their accounts and the documents shown to them’.
However, there is a risk that disclosing information relating to witness interviews could result in a waiver of privilege more generally. Ultimately the information could be shared with authorities in other jurisdictions or be disclosable in civil, or other, proceedings that may not be in the company’s best interests. While this risk may in part be mitigated by a limited waiver agreement, this would not necessarily extend to other jurisdictions, and there is a risk that confidentiality may in due course be lost. The Law Society of England and Wales provides guidance to lawyers about their duty to act in the best interests of clients, including maintaining their claim to privilege.
The law surrounding legal privilege and records of interviews is complex and evolving. It has recently been made more complicated by the narrow interpretation of privilege that has been taken in several recent court decisions. These cases are summarised below.
It was held in The RBS Rights Issue Litigation that the interview notes prepared by the bank’s legal representatives were not subject to legal advice privilege (it was accepted that litigation privilege did not apply). The court found that, for the purposes of legal advice privilege, the ‘client’ consists only of those employees authorised to seek and receive legal advice from the lawyer. In relation to interviews with witnesses, it found that privilege does not extend to information provided by employees and ex-employees outside the client group. Furthermore, it was held that in order for the lawyers’ working notes of the interviews to attract legal advice privilege, the notes must contain ‘some attribute or addition such as to betray or at least give a clue as to the trend of advice being given to the client by its lawyer.’The court held that the bank had failed to demonstrate this.
This judgment was followed by the High Court in Director of the SFO v. ENRC. At first instance, Mrs Justice Andrews rejected ENRC’s argument that legal advice privilege applied to lawyers’ notes of interviews, and found that the question of whether legal advice privilege applied was an evidential one as to whether the notes demonstrated the legal analysis and ‘tenor’ of the advice. In her judgment, Andrews J referred to examples of the type of evidence required to attract legal advice privilege, to include a qualitative assessment of the evidence or any thoughts about its importance or relevance to the inquiry, or indications of further areas of investigation that the author of the notes considered might be fruitful. It was noted in the judgment that the betrayal of further lines of investigation would not in itself have been sufficient to render the notes privileged.
Applying the case of Three Rivers (No. 5), Andrews J held that legal advice privilege would only apply to communications between the lawyer and those authorised by the company to obtain legal advice on its behalf, and therefore not to employees or former employees more widely.
Andrews J’s decision was appealed, and although the Court of Appeal did not need to reach a decision on issues relating to legal advice privilege (because of its decision on litigation privilege, see further below in this section), it nevertheless gave its view (obiter) on how it would have decided those issues. The Court would have found that Three Rivers (No. 5) had been correctly interpreted by Andrews J (and by courts on other occasions) as having created a general rule that, in a corporate context, only the communications of those employees authorised by the company to seek and receive legal advice on its behalf are capable of attracting legal advice privilege. On this basis, Andrews J was right to conclude that the interview notes were not covered by legal advice privilege. Significantly however, the Court gave a strong indication that it felt Three Rivers (No. 5) had been wrongly decided and would have been in favour of departing from that case had it been open to it to do so, although ultimately it felt this is a question that only the Supreme Court can determine.
In addition, it had been argued by ENRC that the interview notes constituted lawyers’ working papers and as such were covered by legal advice privilege. While Andrews J had rejected this argument at first instance, the Court of Appeal declined to give a view.
ENRC’s claim for litigation privilege was also rejected by Andrews J at first instance, who was not satisfied that, on the facts, litigation was in reasonable contemplation at the pertinent times or that, in any event, the dominant purpose of the documents coming into existence was for use in the conduct of litigation. The High Court held that an SFO investigation was seen as a preliminary step and that a prosecution only becomes a real prospect once evidence is discovered to substantiate the allegation, or where the accusations appear to be true.
The Court of Appeal took a different approach to the availability of litigation privilege to ENRC’s interview notes and disagreed with Andrews J’s conclusion of the facts, holding that at the time the documents came into existence, ENRC did reasonably contemplate a prosecution by the SFO. While the Court did not necessarily disagree with Andrews J’s view that an SFO investigation in itself could not constitute adversarial litigation for the purposes of litigation privilege, it was of the view that:
When the SFO specifically makes clear to the company the prospect of its criminal prosecution (over and above the general principles set out in the [Self-Reporting] Guidelines), and legal advisers are engaged to deal with that situation, as in the present case, there is a clear ground for contending that criminal prosecution is in reasonable contemplation.
In addition, although the Court did not accept ENRC’s alternative argument that once an SFO investigation is in reasonable contemplation so too is a prosecution, it held that in this case the evidence ‘pointed clearly towards the contemplation of a prosecution if the self-reporting process did not succeed in averting it’. Furthermore, the Court did not feel that the uncertainty a company inevitably experiences when faced with whistleblower allegations is a bar to litigation privilege. Finally, the Court deemed as erroneous Andrews J’s suggestion that litigation privilege cannot apply until a defendant either knows the full details of what is likely to be unearthed or a decision to prosecute has been taken.
As to whether the dominant purpose of the documents coming into existence was for conduct of the litigation, the Court of Appeal was satisfied that this requirement was met in this case and disagreed with Andrews J that ENRC had always intended to show the documents to the SFO, even though it had indicated that it would give full and frank disclosure. It held that just because solicitors prepare a document with the ultimate intention of showing it to the opposing party, that does not automatically deprive the preparatory legal work that they have undertaken of litigation privilege. Of particular importance was the Court’s view that documents prepared for the dominant purpose of avoiding or settling litigation are just as much covered by litigation privilege as those prepared for defending it. The Court of Appeal concluded that the interview notes were covered by litigation privilege, as a prosecution by the SFO was in reasonable contemplation at the time they came into existence, and they were created for the dominant purpose of resisting or avoiding it.
ENRC provides very helpful guidance and several principles of wider application to assist corporates who find themselves in similar situations. However, it also highlights the extent to which questions of litigation privilege in the context of internal investigations turn on the facts (as indeed is the case with all questions of privilege).
Three other recent cases also illustrate the importance of the facts of the case when it comes to establishing the status of privilege, and a company should consider this throughout the internal investigation so it can better judge whether the notes of a witness interview are likely to be privileged at any stage.
In Bilta & Ors v. RBS & Anor, the High Court’s Chancery Division was concerned with the status of documents created during an internal investigation carried out by RBS’s solicitors, relating to a tax dispute with Her Majesty’s Revenue & Customs (HMRC). The documents included transcripts of interviews with employees and ex-employees that had come into existence following HMRC sending RBS a letter claiming there were sufficient grounds to deny it a certain amount of input tax. Bilta and various other claimants subsequently sought disclosure of these documents, which was resisted by RBS on the basis that they were subject to litigation privilege. The Court held that the documents were indeed protected by litigation privilege. As to whether litigation could be said to be reasonably in contemplation at the time the documents came into existence, the sending of HMRC’s letter was considered significant and found to have marked a ‘watershed moment’, and was likened to a letter before claim. While RBS may also have hoped to dissuade HMRC from proceeding, it was found that this was only a subsidiary purpose subsumed into the dominant purpose.
In R (for and on behalf of the Health and Safety Executive) v. Paul Jukes, following a fatality at work, solicitors instructed by the employer concerned carried out an investigation. A statement was obtained from the appellant Mr Jukes, a former manager, as part of the internal investigation, after the Health and Safety Executive (HSE) had begun its investigation but before it commenced proceedings. This statement was relied on heavily during the subsequent prosecution of the appellant, and following his conviction he appealed, partly on the basis that the trial judge had been wrong to allow the prosecution to rely on the statement, as it was protected by privilege. The Court of Appeal did not accept this argument and found that at the time the statement was made there was no evidence that anybody within the company knew what the company’s and the HSE’s investigations would unearth, such that it could be said that prosecution by the HSE was reasonably in contemplation. It was held that the statement was not therefore protected by litigation privilege.
In Jukes, the Court of Appeal approved part of the first instance ENRC decision. The Court of Appeal in ENRC addressed this potential issue but felt that its conclusions were not invalidated by Jukes, on the basis that the endorsement of Andrews J’s judgment in that case had been obiter.
Notes of interviews and the status of privilege were further considered by the High Court in R (on the application of AL) v. SFO. A judicial review was brought against the SFO for failing to pursue an anonymised company, XYZ Ltd, for non-compliance with its DPA through not disclosing the full interview notes, having instead accepted oral proffers. The SFO’s position was that there was no need to obtain the interview notes because XYZ’s claims of privilege were ‘not obviously wrong’, and that it had exercised legitimate prosecutorial discretion in accepting the oral proffers. In the judgment, the SFO was criticised for (among other things) its failure to challenge the assertion of privilege and require the notes in circumstances where it believed the material not to be privileged. It was found that, even if the assertion of privilege could be made out (which, in light of recent case law, the court said was not supported), by providing oral summaries the privilege had been waived. The judgment noted the SFO’s failure to fully consider whether to require XYZ to waive privilege over the notes, given its contractual duty to co-operate under the DPA, and whether privilege had been waived, even on a limited basis.
At the time of writing and in the absence of any further judicial interpretation, those conducting internal investigations should therefore be conscious that a claim to privilege of records of interviews with those outside the client group could be subject to challenge, notwithstanding the helpful decision of the Court of Appeal in ENRC, and whether a claim to privilege will be successful will depend on the facts of each case. Where the records could be said to form part of the lawyer’s working papers in the context of advice, a claim to legal advice privilege would be strengthened if the notes contained sufficient legal analysis, assessment as to relevance and the ‘tenor’ of the legal advice. Legal advice privilege will also attach to material that forms part of the continuum of the lawyer–client communications even where those documents do not expressly seek or convey legal advice. For litigation privilege to apply, however, litigation must be in reasonable contemplation, and the dominant purpose of the interviews must be the conduct of that litigation. This will depend on the facts of the case, but where litigation is in contemplation, this should be documented to assist in defending any challenge to a claim for privilege.
Factors that may strengthen a claim to privilege over interview notes include where, for example, notes arise from interviews with likely potential defence witnesses in contemplated litigation or where interviews are conducted with a view to assessing the potential risk the witness may pose in likely proceedings.
Those conducting investigations may wish to consider the timing of witness interviews in the context of when the likelihood of litigation (civil or criminal) is clearer, in the absence of which there is a risk that claims to privilege of records of witness interviews will be challenged.
Where privilege can be established, the best position may be to ensure that any notes taken during interviews are done so as to strengthen a claim to privilege and to leave any decision on whether to waive privilege until the course of the investigation and interests of the authorities are clearer.
Conducting the interview: employee amnesty and self-incrimination
As a general point an employer cannot provide amnesty from criminal or regulatory action. Similarly an agreement cannot prevent disclosures to regulators or inhibit criminal investigations.
While in theory amnesty against internal disciplinary action could be offered, this is very rare. More commonly, discussions take place with a view to the employee leaving under the terms of a settlement agreement, which can include a financial settlement and avoids the employee being dismissed. Such discussions can take place ‘without prejudice’, or they may take place as ‘protected conversations’ and therefore should not take place during a witness interview. These discussions, providing they meet the required criteria, cannot be used as evidence in unfair dismissal proceedings, although, unless the without prejudice rule can genuinely apply, they could be used in whistleblowing or discrimination claims.
Though in theory it is possible for an employer to agree a certain course of action (for example, to retain an employee and waive the right to bring disciplinary action), this would not be advisable in circumstances where facts are not yet known or understood. If an amnesty is given, the employer would want to ensure that any waiver against disciplinary action related to closely defined and identifiable incidents only.
Employers also need to be wary of consistency. Where two employees have committed misconduct, allowing one employee to remain and dismissing another would support an unfair dismissal claim that the dismissed employee may bring. The employer would need to justify the difference in treatment, which may be easier to do when an employee has left under the terms of a settlement agreement.
An employee may also seek to claim privilege against self-incrimination and refuse to answer questions on that basis, particularly where he or she is advised by independent counsel. While there may be clear advantages to this approach from a criminal or regulatory perspective, this in itself would not provide a defence against dismissal. An employer could reach a decision to dismiss on the basis of the information that it had at that time. Though it cannot compel employees to answer questions, their failure to do so could be deemed to be unco-operative and in breach of the terms and conditions of employment, resulting in further grounds for disciplinary action. A dismissal for gross misconduct can still be fair in circumstances where a decision has been made not to prosecute, or where the employee has been acquitted of criminal charges for the same offence. Acts that could constitute gross misconduct are broader than criminal offences and the requirement that gross misconduct be ‘fair’ is lower than the criminal standard of proof.
In addition to employment considerations, it is always possible for an employer to agree not to pursue civil claims against an employee in return for information being provided. However, as set out above, this should generally not be offered until full facts have been established.
Considerations when interviewing former employees
In general, unless there is a contractual commitment to do so, former employees can simply refuse to attend a witness interview. It is important to bear this in mind when negotiating an employee’s exit, although in reality (depending on the specific contract terms), once the employee has left there may be little a former employer can do to require attendance, even if it enjoys the benefit of a contractual commitment from the employee to co-operate in any future investigation or proceedings. Former employees regulated by the FCA have a duty under Statements of Principle and Code of Practice for Approved Persons (APER) Principle 4 to co-operate with the regulators. It is unlikely that this provision would require them to assist with an internal investigation, and if asked, they could fairly argue that their duty was to the regulator.
Where a former employee is interviewed there are some protections available in respect of whistleblowing, discrimination or victimisation, should they arise in the conduct of the interview or how he or she is treated afterwards. An employer should be wary of giving assurances of anonymity to a former employee in respect of information given, although this could be given on a need-to-know basis. Anonymity should not be guaranteed where regulatory obligations exist or where it could inhibit any criminal investigation, and assurances that any statement provided would not be disclosed to criminal or regulatory authorities should not be given.
Data protection issues may also arise if the account or statement given by a former employee contains personal data. Care also should be taken in global investigations that data protection rules from other relevant jurisdictions are considered.
Considerations when interviewing employees abroad
Interviewing witnesses abroad can present particular difficulties in global investigations. Statutory employment law is generally of geographical rather than universal jurisdiction and, as a result, statutory employment laws of the jurisdiction where an employee is based will always apply, even if the employment contract is governed by English law. Nonetheless the governing law of the contract should also be considered, as should any rights or protections under that contract.
When planning interviews abroad it is crucial that the law and procedure relevant to those jurisdictions are considered. The employment documents (the staff handbook, for example) should be reviewed to ensure that procedures are followed. It is important to consider whether the employee or employer is covered by any regulatory rules within that jurisdiction (as well as the United Kingdom) to ensure compliance with any parallel reporting obligations.
It would be wise to engage local legal advice on local laws and local culture, which should be factored into the interview strategy. Clearly the interviews should comply with local laws, and in particular those relating to employment, data protection, privacy and privilege. While the English rules of privilege determine whether privilege applies in this jurisdiction, authorities from other jurisdictions may also have an interest, and advice should be sought on how privilege is determined in those jurisdictions.
A witness’s procedural rights in the jurisdiction where he or she is based, as well as in the United Kingdom, should also be considered. Compliance with local laws as well as collective consultation and representation rules should be factored in. In addition, the employer should take advice on whether the employee abroad is covered by UK statutory employment rights.
Issues often arise regarding access to documents, particularly where there are restrictions on the movement of information from one jurisdiction to another. Employees may also have a right to access and correct notes and files identifying them. The applicable directives, regulations or rules should be considered in advance to ensure compliance with data protection laws.
Finally, maintaining confidentiality can be particularly difficult when interviewing witnesses abroad. Where witness interviews span a number of countries, the risk of information being shared or leaked is greater and measures should be put in place to ensure that confidentiality remains.
Witness interviews are a key part of most internal investigations and can provide vital information for the investigation. Internal investigation interviews can take the form of either preparatory interviews at the outset of an investigation or substantive interviews likely to take place once a review of relevant material has taken place.
There can be a tension between the right of a company to investigate allegations of wrongdoing and undertake witness interviews as part of its review, and the expectations of the authorities to be consulted prior to it doing so. Enforcement agencies may seek to restrict how the interviews are conducted or suggest that they be postponed until the authorities have conducted their own investigation. Witness interviews should be conducted in a manner that minimises the risk of contamination or prejudice.
UK Enforcement agencies have stated that a refusal to provide details of the accounts given by witnesses in internal investigations could be construed as unco-operative or a breach of regulatory requirements. The provision of this information and the form in which it would be provided needs to be balanced with the need to ensure confidentiality in an investigation and to maintain legal privilege.
Where a company is investigating allegations of criminal or regulatory misconduct, it is preferable to have lawyers (internal, external, or both) present at interviews to take notes and identify the key risk areas that may arise, and to enable confidentiality and for privilege to be asserted, as appropriate. Where external lawyers have been engaged it is preferable for them to conduct the interviews; they often bring (and, importantly, are seen to bring) expertise, objectivity and independence. Preferably there should be two interviewers to ensure all relevant information is captured.
Interviews can be recorded in a number of ways: by recording and transcribing the interview; by counsel preparing notes of the interview; and with the preparation of a witness statement. UK and overseas enforcement agencies are likely to seek details of the accounts provided, and consideration should be given to ensuring legal privilege is capable of being asserted. How an interview is recorded, the privilege that may attach to that record, and whether or not to provide details of the witness’s account will depend on the circumstances of each case.
Legal privilege in the context of witness interviews raises a number of complex issues and a claim to privilege will be closely scrutinised by the authorities. Notes of interviews with witnesses who fall outside the ‘client’ group may attract litigation privilege if circumstances allow, but the facts of each case must be carefully considered. There is a risk that disclosing information relating to witness interviews could result in a waiver of privilege more generally.
When conducting the interview, lawyers should be satisfied that the witness understands the basis on which he or she is being interviewed, the purpose of the interview, and the use that could be made of the information provided. While there is no formal requirement to do so, it is best practice for the witness to be given an Upjohn warning at the outset and to remind the witness of confidentiality. Where a company has decided to waive privilege prior to the interview, the Upjohn (or similar) warning may need to be strengthened. It is unlikely that a formal caution, similar to that given by the police when investigating suspects, would be required.
The company should consider whether its own legal advisers can give advice to the witness or whether to offer (and to pay for) separate independent legal advice, particularly where there may be a conflict of interest between the company and the witness and where the witness is at risk of criminal or regulatory investigation, or where the company could be implicated in corporate wrongdoing.
In general, a company cannot provide a witness with amnesty from criminal or regulatory action. Similarly an agreement cannot prevent disclosures to regulators or inhibit criminal investigations. Amnesty against internal disciplinary action is rare and while it is always possible to agree not to pursue civil claims in return for information being provided, this should generally not be offered until the full facts have been established.
Interviewing witnesses abroad can present particular difficulties in global investigations. It is crucial that the law and procedure relevant to those jurisdictions are considered and that any relevant regulatory rules are complied with. It would be wise to engage local counsel to advise on local laws, regulatory rules and culture to ensure compliance. Any applicable directives or regulations surrounding access to documents should also be considered in advance to ensure compliance with data protection laws. Measures should be put in place to seek to ensure confidentiality.