I think all of us would like to be investigators at some time. The intrigue, challenge or simply wanting to uncover the facts fascinates us all. The reality is that it is a role that comes with considerable risk. Planning an investigation and knowing the pitfalls are critical. An investigator’s experience in addressing serious allegations and quickly focussing on identifying the facts and reporting the findings to CEOs, Boards, external legal counsel and internal legal teams is developed over many years, particularly financial and data driven investigations. The following tips will assist you when serious allegations may be raised against staff or your organisation and where disruption to your business requires a professional and independent investigation.
Independence in the investigation process
- Consider the role of your experts. The independent investigator should investigate the allegations and report the findings to your lawyers who in turn provide legal advice and representation.
- We often see matters where inexperienced investigative resources make critical mistakes that have impacted whistleblowers, staff or damaged the integrity of the investigation.
- Internal investigative resources may not have the required independence and external lawyers are focused on providing legal advice rather than giving evidence in the investigation. An independent investigator does not provide legal advice.
- An independent investigator should have the experience to work with the client, its legal team and any external regulators to a standard that can withstand the test of scrutiny from opposing lawyers and courts.
- Identifying critical evidence, eliciting statements in a manner that remains admissible and preparing findings into a report that can be used to make challenging decisions will significantly assist you and your organisation deal with these matters in a decisive manner. Management need this information.
- Conducting the investigative tasks in a manner that maintains confidentiality and minimises disruption to your business and its people is critical to continued operations and BAU.
- Consider engaging external lawyers to maintain legal professional privilege and to provide you with expert legal advice.
Integrity of evidence
- Key sources of evidence should be identified and immediately secured to ensure there is no potential for loss or manipulation to evidence.
- Maintain a chain of custody over any evidence that is sourced i.e. document the date and time the evidence was sourced, where the evidence was sourced from and from whom or where.
- Extra diligence needs to be taken in the collection of electronic evidence. Use of experts to acquire multiple forensic images of hard-drives and databases is critical. One of these forensic images should be secured to be relied on for later court proceedings whilst the other can be used for examination purposes.
- An experienced investigator is familiar with the capture, analysis and presentation of evidence and ensures it is not compromised.