Jessica Parker and Andrew Smith, Corker Binning
This is an extract from the third edition of GIR's The Practitioner’s Guide to Global Investigations. The whole publication is available here.
15.2 Interviews in corporate internal investigations
15.2.1 When should employees have their own lawyer?
In many corporate internal investigations, it is common for employees not to receive or be offered legal advice, either before or during their interviews. This is because the employee is not normally treated as a suspect in what is commonly referred to as a ‘fact-finding investigation’. Their position is analogous to but distinct from an employee interviewed in disciplinary proceedings, in which an employee suspected of misconduct has no right to legal representation at the interview, but is entitled to be accompanied by a fellow employee or trade union representative.
However, in some corporate internal investigations, the corporate may recommend a lawyer (often called an independent legal adviser or ILA) who can represent the employee. Alternatively, the employee may prefer to benefit from legal advice, regardless of whether a lawyer has been recommended by the corporate.
Legal representation for an employee may be desirable in two main situations. First, if the employee risks self-incrimination or admitting regulatory breaches, there may be a conflict of interest between the employee and the corporate. In particular, conducting the interview without first offering the employee legal representation may place the corporate’s lawyers in breach of their professional ethical duty not to take ‘unfair advantage’ of a third party.
Secondly, legal representation for an employee may be desirable where the employee’s acts and omissions determine the criminal or regulatory liability of the corporate, for example where the employee is the ‘controlling mind’ of the corporate or an ‘associated person’ for the purposes of the Bribery Act 2010. In these circumstances, the corporate may consider that legal advice will enable the employee to render a more reliable account in an interview – an outcome that furthers the corporate’s interests in helping it more accurately to assess its own exposure to criminal or regulatory liability.
15.2.2 The role of the employee’s lawyer prior to the interview
While the lawyer will always owe professional obligations to the client (i.e., the employee), the corporate may require the employee to agree to the lawyer acting on restricted terms. Such terms may define the scope of the lawyer’s work and outline circumstances in which the lawyer’s fees will not be paid or can be clawed back from the employee (e.g., if the employee becomes a whistleblower or is charged with a criminal offence). There may be other terms dictated by the corporate’s insurers. However, nothing in such terms can derogate from the lawyer’s professional ethical duty to act in the employee’s best interests.
It is not uncommon for a single lawyer (or law firm) to be asked to act for a number of employees all of whom will be interviewed in the internal investigation. Whether this is permissible is purely a question of professional ethics.
While the employee’s lawyer must be independent from those conducting the investigation, it is nearly always beneficial for the employee’s lawyer to form a constructive relationship with the corporate’s lawyers. This relationship should enable the employer’s lawyer to understand the allegations being investigated, the employee’s perceived role in relation to the allegations, and whether the corporate has reported the allegations to a law enforcement body. The lawyer should seek comprehensive disclosure prior to the interview of all documents the employee will be asked about, and ensure that the employee has sufficient preparation time for the interview.
Clearly the employee’s lawyer needs competence in the areas of law relevant to the allegations being investigated (e.g., bribery or the Financial Conduct Authority’s (FCA) Senior Managers Regime). This competence will enable the lawyer to pre-empt the questions that are likely to be asked in the interview, to take meaningful instructions from the client, to structure those instructions in a logical fashion, and to assess how well the employee would perform in the interview. This may require separate advice on employment law as well as advice from other jurisdictions if the allegations are international in nature or the corporate has self-reported to overseas law enforcement bodies.
The work performed by the employee’s lawyer should lead to two fundamental tactical decisions. First, is it in the employee’s best interests to attend the interview? Second, if the employee attends the interview, how should the questions be answered to advance his or her best interests?
15.2.3 Advising the employee whether to attend the interview
In most investigations, employees are told that they have a duty to co-operate with the investigation under their employment contract. Failing to attend the interview will ordinarily lead to the employee being suspended or dismissed. However, this outcome should never be the sole or even the primary factor to consider when advising an employee. Of equal or greater importance is the impact of the interview on any existing or future legal proceedings involving the employee.
The employee’s duty to co-operate with the investigation is not akin to a statutory compulsion. Equally, however, employees cannot sensibly attend the interview and then elect not to answer certain questions on the basis that they will incriminate themselves. Electing to answer some questions but not others is overwhelmingly likely to lead to the same result as refusing to attend the interview, namely suspension or summary dismissal.
If by co-operating and answering all questions the employee self-incriminates or admits to regulatory breaches, the interview is unlikely to serve his or her best interests. Not only is the employee likely to be dismissed or suspended given the nature of the admissions (the same outcome that would have occurred had he refused to attend the interview), but the corporate will obtain a damaging interview record which could be handed over, and used, in a law enforcement investigation. While the recent Court of Appeal judgment in Director of the SFO v. ENRC clarifies the circumstances in which an interview record may be protected by litigation privilege, the corporate may choose to waive privilege as a hallmark of its co-operation. The interviewee must therefore be advised that he or she should only proceed with the interview if prepared to accept the real risk that a law enforcement body will ultimately review an audio recording or transcript of it, and potentially make important decisions about the status of the interviewee in any future criminal or regulatory investigation based on the answers given in the interview.
Whether the record of an interview in an internal investigation constitutes admissible evidence against the employee in legal proceedings has not been explored in any case law. However, there are analogous cases which suggest that, as long as warnings akin to Upjohn warnings are delivered at the commencement of the interview, the interview record would probably be admissible in criminal proceedings.
Given that the interview record could be admissible against the employee, the employee’s lawyer needs to balance the risk of dismissal or suspension against the risk of increasing the client’s exposure to personal liability in criminal and regulatory proceedings. If the employee is able to deliver a credible account without self-incrimination or admitting regulatory breaches, it will ordinarily serve his or her interests to attend the interview. Equally, there are circumstances in which employees will be advised to attend the interview even though they will admit criminal or regulatory offences, for example, the employee was junior, the offending is relatively trivial, and the employee wishes to be able to say, in any subsequent legal proceedings, that he or she gave the employer an explanation consistent with what he or she now asserts to the law enforcement body. However, if the employee is likely to admit serious offences in the interview, then attending the interview simply to advance mitigation is unlikely to be advisable.
15.2.4 The role of the lawyer in the interview
An employee attending the interview will typically be advised that, to advance his or her best interests, answers should be concise, contain no speculation and provide no extraneous detail beyond that required by the particular question. Ideally, this process occurs organically and the lawyer does not need to intervene during the interview. Nonetheless, the lawyer’s presence is important, and interventions may become necessary, so as to ensure that:
- the employee is asked questions that are clear and fair;
- the employee is given an adequate opportunity to answer the questions without interruption, intimidation or improper pressure;
- the interviewers do not misconstrue any answers given by the employee;
- the employee does not inadvertently waive privilege over advice;
- the employee can take advice on an ongoing basis about issues that arise during the interview or previously undisclosed documents which he or she is asked to comment on;
- an accurate record is kept of the questions and answers; and
- the employee raises all material facts, defences and mitigation identified during the preparatory work conducted with the lawyer.
15.3 Interviews of witnesses in law enforcement investigations
Law enforcement investigations are conducted under distinct statutory regimes, depending on the nature of the conduct under investigation and the agency conducting it. However, in general terms, there are two types of witness interview: interviews conducted voluntarily and interviews conducted compulsorily.
15.3.1 Voluntary interviews
The majority of interviews are conducted without the witness being subject to legal compulsion. In other words, the witness is interviewed as a volunteer. While being interviewed voluntarily may seem attractive in that it suggests a co-operative attitude toward law enforcement, the record of the voluntary interview (including any admissions made by the witness) could be used in evidence against the witness in subsequent legal proceedings. In criminal proceedings, this risk increases if the witness has received legal advice prior to the interview, because it becomes less likely that a court would use its discretionary power to exclude the interview.
If there is a risk, however remote, that the witness will self-incriminate in the interview, it is unlikely to be in the witness’s interests to attend voluntarily. In these circumstances, being compelled to attend the interview is likely to be advantageous.
15.3.2 Compulsory interviews
Where a witness owes a duty of confidentiality to another party concerning the subject of the investigation, or is concerned about the potential use of the interview record against him or her in subsequent proceedings, the witness will ordinarily refuse to attend the interview voluntarily. In some circumstances, the witness can be compelled to attend and answer questions under statutory powers available to all major investigators, including HM Revenue and Customs, the FCA, the Serious Fraud Office (SFO) and the police. Where this compulsory power is used, the witness is protected from civil suit for breach of confidence. Moreover, the answers given cannot be used in evidence in criminal proceedings against the witness – an important protection that is not available in a voluntary interview.
There are two exceptions to this latter protection: first, where criminal proceedings are brought in respect of false or misleading statements made during the course of the interview; second, where the witness, who later becomes a defendant, advances a different version of events in subsequent proceedings.
The role of the lawyer in compulsory interviews is similar to the role in the interview of an employee in a corporate internal investigation.
15.3.3 Right to legal representation in a compulsory interview
There is no absolute right to a lawyer in a compelled interview, although usually a lawyer will be allowed to attend. In the context of compelled interviews with the SFO under section 2 of the Criminal Justice Act 1987, this principle was confirmed in R v. Lord and others. In this case the SFO challenged a witness’s choice of lawyer on the basis that it was the same lawyer that represented a corporate suspect in the same investigation. The SFO refused to permit the lawyer’s attendance at an interview and the witness sought relief by way of judicial review of the SFO’s decision. Permission for the judicial review was not granted and the Administrative Court upheld the SFO’s decision to exclude the lawyer.
The SFO’s response to this case was to withdraw its existing guidance on section 2 interviews and issue new guidance in June 2016. This new guidance creates inroads into the right to legal representation that go far beyond the factual scenario examined in Lord. Under the new guidance, witnesses are reminded that they may consult a lawyer before and after an interview, but a request for representation by a lawyer during an interview will only be granted if, inter alia, the following conditions are met:
- a written request is provided in a prescribed period prior to the interview;
- the reasons that a lawyer is requested are set out;
- the lawyer agrees to undertake to a list of restrictions generally aimed at ensuring that information imparted or documents provided by the SFO remain confidential;
- the lawyer undertakes not to act for a suspect in the investigation; and
- the lawyer agrees to provide ‘legal advice and essential assistance and otherwise not interrupt the free flow of truthful information which the interviewee, by law, is required to give.’
Despite these attempts to restrict a lawyer’s role during the interview, it is important for a lawyer always to act in the best interests of the witness and in accordance with his or her professional obligations.
The Law Society has issued a practice note that is essential reading for those advising the recipient of a section 2 notice.
Any undertaking requested should be carefully considered. The Law Society practice note advises as follows, ‘You should consider whether it is appropriate and necessary to agree the undertakings sought by the SFO on a case-by-case basis. You should carefully consider the implication of agreeing to any undertaking and, if necessary, seek to amend the terms of the undertaking before agreeing it.’
By way of example:
- Has sufficient information been provided to enable the lawyer to undertake whether he or she acts for another suspect?
- Do the undertakings on confidentiality relate to documents that are actually confidential (i.e., if the witness has obtained them from another source, this undertaking should be drafted to exclude such items)?
- Are the undertakings relating to the provision and retention of pre-interview disclosure practicable?
In respect of the conduct of the interview, the lawyer must give advice that the SFO may consider conflicts with the ‘free flow of truthful information’, for example:
- The lawyer must also ensure that the interview is conducted within the parameters of the section 2 power.
- The lawyer must ensure that the SFO respects the statutory exception to its compulsory power, such as a refusal to answer questions that are properly the subject of legal professional privilege.
- The lawyer must ensure that the witness is able to deal with the interview properly: the lawyer must ensure that answers given by the client are not misconstrued, that the witness has sufficient time to consider the documents put to them, etc.
15.3.4 Confidentiality of the interview
At the conclusion of an interview with a witness (and some interviews with suspects), the investigator will often inform the witness that they consider the interview to be confidential and that the witness should not discuss it with anyone other than their legal adviser. There is no legal force in these statements. In Lord, for example, the court confirmed that there is no obvious bar to an interviewee discussing their interview as they wished. Indeed, there may be good reason for a witness (or their lawyer) to discuss what was learned in an investigator’s interview with others; careful thought should therefore be given to whether this would be in the witness’s best interests.
15.4 Interviews of suspects in law enforcement investigations
15.4.1 The caution
Law enforcement interviews of suspects are conducted in accordance with the protections set out in the Codes of Practice (PACE Codes) issued pursuant to section 66 of the Police and Criminal Evidence Act 1984 (PACE). Among the most important of these protections is the caution administered to a suspect at the start of an interview.
An investigator must caution a person if there are ‘reasonable, objective grounds for suspicion, based on known facts or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it.’The failure to administer a caution may render the interview record inadmissible in subsequent criminal proceedings.
The caution is as follows:
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.
The caution confers on the suspect a right to silence. It also reminds the suspect that if he or she chooses to answer questions, the answers will be admissible in evidence against the suspect at any criminal trial. Finally, the caution alerts the suspect to a rule called the adverse inference. This rule means that, if the suspect fails to mention a fact that in the circumstances existing at the time could reasonably have been mentioned at the interview and later relies on that fact in his or her defence, there is a risk that the trial judge directs the jury that they may draw an adverse inference against the suspect. The jury could draw an adverse inference, for example, if they found that the reason that no answer was given was because there was no good or true answer that would stand up to scrutiny, or if they found that any subsequent fact raised in the defence could be fabricated.
Jurors may not be asked about their deliberations and so the impact of a judicial invitation to draw an adverse inference is not known. Nonetheless, it is believed that jurors do not always draw an inference even when invited to do so.
15.4.2 Deciding on the suspect’s approach
The single most important decision taken by a lawyer representing a suspect in an interview under caution is whether to answer questions, exercise the right to silence or read from a prepared statement. This decision is rarely straightforward; care must be taken to protect the client from a variety of risks, including the risk of making damaging admissions, the risk of being ambushed by previously undisclosed documents and the risk of an adverse inference being drawn in any future trial.
To advise on this decision, the lawyer should seek pre-interview disclosure from the investigator, namely an explanation of the evidential basis of the allegations against the suspect. There is no legal requirement to provide pre-interview disclosure, although case law suggests that where none is given, disclosure is very limited or what is given is misleading, the court may decline to draw an adverse inference or may even exclude the interview from evidence. In practice, most investigators will provide some pre-interview disclosure in an attempt to prevent these outcomes. If the disclosure is limited, for example if it contains a summary of facts with no contemporaneous documents, the lawyer should ask a series of questions to establish what evidence has been collected in the course of the investigation and seek sight of any document that will be put to the client in the interview. A note should be taken of these discussions so that it can be used in any subsequent application for exclusion of evidence or objection to an adverse inference.
If thorough disclosure is provided, a full comment interview may add credibility to a defence advanced at trial or give the investigator reasons to re-evaluate the factual basis of his or her suspicions. However, if disclosure is inadequate, answering questions may simply provide an account that is inconsistent with material already gathered by the investigator (and that may be deployed by the investigator during the interview to discredit the suspect’s account). Moreover, answering questions without fully understanding the basis of the allegations may simply extend the scope of the investigation into new, problematic areas.
In complex financial crime cases, reading from a prepared statement may often be preferable to a suspect answering questions or exercising the right to silence. An effective prepared statement will set out the salient points in the suspect’s defence in a structured format and guard against the risk of the adverse inference being drawn. However, there is always a risk in relying on these statements if disclosure is inadequate, such that the statement could be undermined at a later stage of the investigation or omit facts that could have reasonably been mentioned in interview. Practices vary as to whether such statements should be read out at the beginning or end of the interview.
Lawyers advising a suspect should ask themselves two questions. First, are there factors that may suggest the client is not able to provide a full and clear account of the conduct? Secondly, are there tactical reasons to adopt a certain approach? Some of the factors that feed into these questions are as follows:
- there are no facts on which the client will rely in his or her defence;
- pre-interview disclosure is so limited that it is not possible properly to evaluate and advise on the case against the suspect;
- limited disclosure may indicate that the investigator’s case is weak and there is a risk that the suspect would make admissions that may strengthen the case or lead to new lines of enquiry;
- the disclosure, however briefly put, reveals the type of case that calls for a defence to be put in evidence at an early stage;
- the case disclosed is not based on admissible evidence;
- the conduct under investigation is historic or complex, such that inadequate time or disclosure has been provided to prepare effectively (this may not necessarily be the investigator’s strategic decision but because evidence is still being obtained);
- the lawyer knows or suspects that the investigator plans to provide documents in the course of the interview that have not been shown to the lawyer in advance; and
- the suspect is by reason of illness, cognitive impairment, drink or drugs, fatigue or other mental state not able to provide an accurate account or take advice on board.
15.4.3 The lawyer’s role in the interview
The lawyer’s role in an interview of a suspect is similar to the roles described above when acting for employees in corporate internal investigations or for witnesses in law enforcement investigations. However, there are additional considerations when acting for a suspect. For example, in some circumstances, the client should be warned not to accuse others of lying or other reprehensible behaviour, as to do so will automatically risk their own ‘bad character’ (which includes non-conviction material such as disciplinary matters) being admitted in evidence.
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