1. Failing to Plan, Is Planning to Fail
3. Data Privacy Failures
4. Fruit of the Poisonous Tree: Illegal Evidence Gathering
5.Over-ambitious Interview Process
6. Failure to Record a Written Summary of Interviews
7. Failure to Draft an Investigation Report Summarizing All Processes and Evidence
Internal investigations are a defence mechanism for companies and a core element of a compliance program that complements speak-up culture and fights against fraud & misconduct. Whether internally or externally driven, investigations help companies to identify risks and take legal action before ethical or legal scandals occur.
Investigations must be tailored according to the conditions: the scope of alleged misconduct, the extent of the violation of regulations, and the number of employees, counsels or managers involved. Since there is a lot to be taken into consideration, there is no uniform or formulaic checklist to conduct internal investigations. Even so, there are some “deadly” mistakes that absolutely must be avoided in every investigation.
There is no possibility of conducting an effective investigation without a carefully-designed and practicable investigation plan. An investigation plan should include, identifying the main strategy and procedures to be implemented, establishing the investigation team, identifying the external support if necessary, classifying the alleged behaviour and people involved, identifying the location of necessary information, the business devices to be examined and the evidence to be gathered, estimating the timeframe, and of course, making realistic assumptions regarding the legal and criminal consequences of the investigation. A plan is also necessary to ensure the legitimacy and compliance of the investigation process with relevant regulations, such as employment laws, data protection and privacy, whistle-blower protection policies, and to assess whether the misconduct is a criminal activity that is required to be reported to the prosecution office.
Identifying the location of data, whether the information is internal or external, is an important issue to detect; if it is internal, who has it, in which device, how can it be obtained and copied, what programs and IT support are necessary? Scheduling interviews, and their timing and location is also important. Finally, the investigation must be planned and initiated promptly. Delayed investigations may cause loss of evidence, violation of an aggrieved person’s rights, and irreversible damage associated with the misconduct.
From the beginning until the very end, the confidentiality of an investigation and of the information obtained is essential for success. Preserving confidentiality is a “must” not only until the end of the investigation, but as an ongoing necessity for a company’s long-term reputation, relationships, and sustainability.
From its instigation (usually a whistle-blower’s tip) to the end of an investigation process, investigators must keep all of an investigation’s details confidential from the rest of the company. Investigators should pursue “a need to know basis” approach when collecting evidence and keep in mind that sharing information with employees outside of the investigation team may damage the integrity of the investigation. Not maintaining confidentiality may also cause gossiping between employees. This could result in suspected employees gaining prior knowledge of the merits of the case giving them an opportunity to destroy or cover up evidence of misconduct, and to come prepared to the investigation interview process, undermining the psychological supremacy of the interviewer.
Generally, during the evidence gathering process, electronic devices and e-mails of employees provided by the company are examined in compliance with applicable local regulations. However, these devices may contain employees’ “personal data”. The device examination process must be conducted under the observation of an expert data-privacy legal consultant. Ignorance of data privacy laws may expose a company to accusations of breach of personal data protection, administrative fines, and the nullity of such evidence.
Turkish Constitutional Court and the Supreme Court, as well as the European Court of Human Rights, approve companies’ authority to examine devices and business e-mails given to employees to use during working hours and for business purposes, on the condition that they clearly inform employees in advance. In the event that these devices include personal data, the examination must be operated in a manner that does not violate the privacy and communication rights of the data owner and should be limited to examining the information flow of separate business data content to that of personal data. An investigation team must also consider other applicable extra-territorial laws such as GDPR. When considering the size of fines imposed, ignorance of these laws may cost a company dear.
“The fruit of the poison tree is poisonous as well.”
This is a well-known principle applied in criminal investigations. Most especially when there is mismatching evidence and an investigation becomes complex, an investigator’s level of tolerance and patience decreases. This is often the point at which the temptation to obtain evidence by any means, regardless of whether those means are legal is at its strongest. However, evidence obtained illegally is illegal, and cannot be used in governmental investigations.
Mishandling the evidence gathering process and conducting an investigation through unidentifiable evidence that cannot demonstrate when, where, how or from whom it was collected, may mean the whole investigation is built-up on illegal grounds. When alleged misconduct also requires criminal investigation, each piece of evidence proving misconduct should be reliable and legally gathered.
Collecting only legal evidence is a sine qua non requirement of any investigation process. Investigators should avoid any illegal activities including but not limited to using unauthorized recording of audio and visuals, hacking into personal devices, and manipulating evidence.
The interview process is a key point, especially in complex criminal investigations where the evidence is not conclusive. At this point, an investigator’s deadliest mistake is “damaging their own evidence: witness statements”. Over-ambitious, accusatory, and over-pressing behaviour never, or rarely, works. Due to the nature of the process, investigators have a physiological supremacy when conducting interviews, however it is crucial to establish a trust relationship to enable the possibility of confessions during interviews. Investigators must be patient and must not intervene or manipulate witness statements, even if they know they are untruthful, until witnesses feel ready to tell their side of the story.
Witness statements obtained under-pressure, threat, and moral coercion damage their legitimacy and reliability, and risk damaging the probative value of evidence in governmental investigations. Besides, these interviewees may accuse investigators of mobbing, harassment and even torture, which will have negative internal and external consequences for investigators.
Finally, it should always be considered that an investigation’s underlying goal is to keep a company operating, in compliance with its ethics and regulations, and on trust relationships again. Before alleged misconduct or suspects are revealed, an investigation team should consider the potential damage to a company’s relationship with its innocent employees. Referencing the founding principle of criminal law “everyone is innocent until proven guilty”.
During an investigation, all the interviews, including the questions asked, the answers given, the supportive evidence, contradictions, and responsive explanations, should be duly summarized.
Records should be clearly written, indicating all the statements objectively and in a way that leaves no doubt due to any misleading or incomprehensible information. That’s why it is recommended that interviews are conducted with at least two people, where one investigator can ask the questions and the other one can take written records. At the end of an interview, the written record should be read and signed by the interviewee. The written record should also indicate the credentials of the interviewee, as well as the time and place that the interview was conducted. It is worth underlining that there is no difference between failing to record a written summary of an investigation and not conducting an interview at all.
This is the final stage of an investigation process, and also the most crucial one. The investigation report is the “material” result of the investigation, where all the findings, interviews, and evidence are addressed, examined, analysed, and concluded. The report represents the rational results of an investigation, and a preferable alternative to a stack of all the information gathered.
Investigators should also consider that these reports may be requested by courts in legal proceedings ergo, a report should be drafted in an understandable and comprehensible manner, regardless of whomever reads it. The investigation report should answer the underlying reasons of the investigation, as well as how the investigation is conducted, what evidence has been gathered, and how the findings are concluded.
The statements, findings, root cause analysis and conclusions should be represented in an order and in a way that ensures the reader can link the events with their results and understand the connections between all of the dynamics of the investigation.
An effective investigation process will serve a company’s fight against misconduct, safeguard its compliance program, provide organizational justice among employees, and improve transparency and trust within a company. It’s important to plan and prepare a to-do list for investigations. However, it’s also important to remember the “not-to-do-list” and be aware of the deadly sins when conducting internal investigations.