How to conduct an investigation
The case of Owen Paterson
Philip Barden
Partner
020 7880 4280
A successful investigation is one which clearly establishes the facts and can be seen to be fair and thorough. I was retained to review the investigation within Parliament into Owen Paterson. This is a matter of public record. That investigation was hopelessly inadequate and breached natural justice.
This article sets out some good guidance as to how any matter should be properly investigated.
First, the investigator should establish a scope of investigation. This is a working document which sets out the issues and the methodology to address them.
The more specific the allegations, the more detailed the methodology can be. Where, for example, allegations have been made anonymously, it may be considered desirable to seek to identify the person who has made the allegations, to establish their state of knowledge.
The method by which an investigation takes place should always consider the following:
1. Electronic records – work systems and other electronic information (mobile phones) should always be searched using key words and the results preserved.
1.1. Finance records should be obtained where required. Where a person is alleged to have received improper financial benefit you may think it appropriate to ask to see their bank statements. The person may decline. But if you don’t ask, you don’t get and if there is evidence of unlawful payments bank accounts can be obtained by court order without the account holder knowing.
1.2. If individuals have been communicating via social media/WhatsApp/Signal etc. a request should be made to see these records – passwords are required to access such systems.
1.3. In some cases, a person’s laptop should be mirror imaged and the slack space (where deleted documents lie) can also be key word searched. This can be an important source of information and we have successfully concluded investigations with documents retrieved from slack space.
2. CCTV – depending upon the nature of the allegations, this can be important.
3. Witnesses – if the allegations relate to complex issues, behaviour or things said which are not recorded electronically, then witnesses will need to be spoken to. There are a number of considerations when speaking to witnesses.
First, a witness should be told what you are investigating and given the context. If you are going to ask a witness about documents you should show the witness the documents.
You can if you wish record meetings and if you wish to do so it is best to advise the witness and seek their consent. In some investigations it may be necessary to secretly record meetings and that evidence is permissible in civil proceedings.
Always be clear with witnesses and establish exactly what they recall.
Work your way through the witnesses from those who have the least evidence to those more centrally involved. This is called the Christmas tree of investigation.
The last person to be spoken to is the person under investigation. The degree of transparency then given in relation to the evidence from witnesses will depend upon whether or not witnesses are whistleblowers, or have requested that their identity is withheld for valid reasons.
Again, relevant documents should be put to the individual concerned and their answers recorded. If lots of documents are going to be put – you may decide to send them in advance – unless it is important to get a first reaction to seeing a document where you do not wish to a person to have time to ‘create the explanation’.
It is often the case that during the course of an investigation the scope changes because additional issues arise. It is important that the change in scope is necessary for the purposes of the investigation and proportionate. What you should avoid is an investigation that becomes disproportionate to the matters under consideration.
Successful investigations are ones which are targeted and where there is close control over the scope.
Investigations that are unsuccessful are often those where the scope is not clear, and the investigator seeks to establish the truth of matters that are not material to the central allegations. These are often seen as never-ending investigations. That is a symptom of a lack of control.
There are then some principles that need to be followed when considering the evidence that has been obtained.
1. It is a longstanding principle of common law that a person sitting in judgment should follow the unchallenged evidence. Where more than one person gives the same account, unless there are valid objective reasons to believe they are lying, the evidence should be followed.
2. The investigator should always write a report attaching to it the relevant documents that have been obtained and witness evidence so there is a complete record of the work undertaken, the conclusions reached and the basis for them.
3. Where there is a failure to properly investigate a matter, and then a determination of an individual’s rights is made, that will amount to a breach of natural justice. This can be challenge in court (unless you are an MP as they have no rights), so it is important to get it right.
4. Increasingly, there is a move towards private prosecutions by companies of individuals who are said to have broken the criminal law, because there is often a failure by the police to investigate, or the prosecution service to prosecute. If this is a consideration then evidence must be collected in accordance with the rules relating to production of evidence and ensuring it is admissible. This means ensuring the provenance of material is recorded and preserved.
5. Within the context of a criminal investigation decisions will need to be taken as to if individuals are cautioned before or during an interview. If you wish to adduce statements made by a person who is the subject of the criminal proceedings, then it is important that the individual was cautioned, as otherwise the evidence maybe inadmissible in criminal proceedings.
You can use AI to review electronic records and undertake other investigative checks. For example, into accounting and banking systems looking for anomalies i.e. different suppliers using the same VAT number or being paid into the same bank accounts and round figure payments.
A successful investigation is one that gets to the truth. It may prove that the allegations of misconduct or fraud are untrue. What matters is that everyone engaged in the process knows it has been fair.
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